(dissenting)—I am persuaded by the City's argument that the recent amendment to RCW 69.50-.505(e) settles any dispute over who, under the former statute, carried the burden of proof in establishing whether personal property subject to forfeiture was used to facilitate the sale of illegal drugs. Contrary to the position taken by the majority, I believe that that burden rests upon the claimant. The validity of this conclusion is evidenced by the statute's recent legislative history.
In 1988, both houses of the Legislature passed ESSB 6316, which would have amended RCW 69.50.505. At that time, RCW 69.50.505 did not address seizure and forfeiture of real property—rather it concerned only personal property. The primary objective of the amending legislation was to provide law enforcement with the additional necessary tools to seize real property acquired and used in furtherance of the illegal drug trade. In addition, the bill also sought to shift the burden of producing evidence in a hearing to reclaim seized property from the claimant to the law enforcement agency that seized the property.
The Governor vetoed all material sections of the bill. In his veto message, the Governor advised the Senate that among other changes, the wholesale shift in the "burden of proof", for both the existing personal property provisions and the new real property provisions, would retard law enforcement's efforts to seize property related to illegal drug transactions. The Governor added:
I would encourage the Legislature and the law enforcement community to work together in the next session to again review this issue and attempt to pass a law which allows law enforcement to continue under existing law for the "personal property" forfeitures while adding new separate provisions for "real property" forfeitures.
Senate Journal, 50th Legislature (1988), at 1682.
This is, at least in result, precisely what the 1989 Legislature did. The amended statute retained the existing language which placed the burden of producing evidence upon the claimant and prefaced it by stating that that burden *539will apply in cases involving personal property. The Legislature then added new language which created a separate standard for real property specifically placing the burden of proof upon the law enforcement agency. The statute in pertinent part provides:
In cases involving personal property, the burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. In cases involving real property, the burden of producing evidence shall be upon the law enforcement agency. The burden of proof that the seized real property is subject to forfeiture shall be upon the law enforcement agency.
(Italics mine.) Laws of 1989, ch. 271, § 212, p. 1302.
It is clear from the Governor's veto message that he understood the existing statute placed the burden of proof upon the claimant and that he strongly disapproved of any change in the status quo. It is equally apparent from the text of the 1989 revised bill that the Legislature acted upon the Governor's recommendation. The amended statute reflects the Legislature's intent to distinguish between the burden allocated in personal and real property cases. If the Legislature intended to place the burden of proof upon law enforcement in personal property cases, the 1989 amendment offered it its chance to do so. In fact it sought such a change in 1988 and the bill was vetoed. By specifically adding language that placed the burden of proof upon law enforcement in real property cases only, logic dictates that the Legislature intended the burden of proof to remain with the claimant in personal property cases. Had it intended otherwise, it would have used the same burden of proof language in that portion of the statute dealing with personal property. Having specified that the burden of proof is upon the law enforcement agency in real property cases, its very silence on the issue of the burden of proof in personal property cases carries the necessary implication that it believed and intended that the burden of proof be on the claimant. Its silence is understandable because it *540would have no reason to believe that any further statement was necessary.
The majority would have us believe that the absence of express language allocating the burden of proof in hearings on forfeited personal property manifests a legislative omission. It theorizes the Legislature simply forgot to address the issue; however, this position is untenable in light of the proposed changes in ESSB 6316, the Governor's veto message, and the Legislature's subsequent action. The legislative history is unambiguous. The Legislature tried to change the law and, when the Governor did not approve, it adopted his position. This recent legislative history explains why the Legislature added the burden of proof provision of real property but was silent with respect to personal property.
The changes inserted in the present statute necessarily raise the inference that the standard required by the former RCW 69.50.505 placed the burden upon the claimant to disprove illegal use in personal property cases. A careful review of the legislative history makes this inference a verity. Adopting the standard as suggested by the majority will not only fail to bring clarity to the conduct of drug forfeiture proceedings, but will contradict the Legislature's obvious intent.24
For the reasons indicated, I must respectfully dissent.
Review granted at 114 Wn.2d 1019 (1990).
The majority's attempt to answer the dissent is not persuasive. If the Governor and law enforcement, the very entity charged with enforcing the forfeiture statute, were confused as to the Legislature's intent, surely the Legislature would have acted to clarify the situation and correct any misapprehension. The actions of the Legislature indicate that the Governor's interpretation of its intent was accurate.