(dissenting) — Although the prosecutor had no obligation to plea bargain with defendant Moen, he was obliged to refrain from conduct which would deprive Moen of his life, liberty, or property without due process of law. Pursuant to MacDonald v. Musick, 425 F.2d 373 (9th Cir. 1970), I conclude Moen’s due process rights were violated, and dismissal of the criminal proceeding is mandated, where the prosecution penalizes the defendant for seeking legitimate discovery in a collateral civil forfeiture proceeding.
MacDonald, like Moen, was subject to a criminal prosecution: MacDonald for driving under the influence of alcohol, Moen for a drug offense. The prosecution in MacDonald offered to dismiss pending charges if MacDonald would stipulate there was probable cause for his arrest — apparently to avoid the prospect of a civil suit for damages. In Moen’s case, the prosecution declined to enter into any kind of negotiation for a plea bargain because Moen had exercised his unquestioned legal right to obtain discovery of a confidential informant to aid defense against a civil forfeiture proceeding.
Although our majority claims the facts are materially different, I would posit the factual differences do not distinguish this proceeding from the due process principle illuminated in the MacDonald decision.
In both cases the prosecution utilized the criminal process to exact from the defendant the waiver of collateral legal rights. In MacDonald the exaction was for a stipulation of probable cause to arrest. In Moen the exaction was the waiver of the defendant’s legal right to obtain critical discovery of an informant’s identity to aid avoidance of a civil forfeiture. State v. Moen, 110 Wn. App. 125, 38 P.3d 1049 (2002).
While it is true that the prosecution had no absolute duty to enter into plea negotiations with defendant Moen, it is equally true that the prosecution in MacDonald had no absolute duty to dismiss the charges against MacDonald short of a trial.
*233It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. We do not mean that the prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case. The situation is made no better by the fact that here the record indicates that it was the court that asked MacDonald whether he would stipulate. Rather, it makes it worse. It brings the court to the aid of the prosecutor in coercing the defendant into agreeing to what amounts to a forfeiture of his civil rights. Nor can the prosecutor, because of failure to obtain the demanded stipulation, then introduce another charge in the hope of defeating the possible civil action of the defendant.
MacDonald, 425 F.2d at 375.
The United States Court of Appeals for this circuit held in MacDonald that the attempt to exact the waiver of collateral legal rights to obtain advantage or leniency in a criminal prosecution violates due process. That is precisely the situation we have here. I cannot accept that the factual differences between these two cases are in the least material to the application of the constitutional principle previously articulated.
While it is certainly true the motivation of the government to discourage discovery of confidential informants is quite understandable, that is no legitimate reason to penalize the defendant for seeking that discovery when he is otherwise entitled to it as a matter of right in a civil proceeding. What occurred here is an abuse of the criminal process which was perverted by the prosecution to obtain an objective fully outside the legitimate scope of the criminal prosecution per se. Nor do I think it is a fair distinction to say in MacDonald a possible civil suit was avoided, whereas in Moen the identity of a prosecution witness, or asset, would have been compromised. In both cases, there is something of value to the defendant, and something of value to the State. And in both cases criminal process has *234been inappropriately used by the government to advantage itself and disadvantage a defendant in a collateral context.
For the reasons explained in MacDonald the liberty or property of defendant Moen has been deprived absent due process, and the conviction should be reversed.
Alexander, C.J., concurs with Sanders, J.