State ex rel. Henry v. Seventeen Thousand Twenty-Three Dollars and Thirty-Six Cents ($17, 023.36) in U.S. Currency

State ex rel. Henry v. Seventeen Thousand Twenty-Three Dollars and Thirty-Six Cents ($17,023.36) in U.S. Currency
1992 OK CIV APP 29
828 P.2d 448
63 OBJ 1303
Case Number: 76664
Decided: 03/24/1992

STATE OF OKLAHOMA, EX REL. ROBERT HENRY, ATTORNEY GENERAL, APPELLEE,
v.
SEVENTEEN THOUSAND TWENTY-THREE DOLLARS AND THIRTY-SIX CENTS ($17,023.36) IN
UNITED STATES CURRENCY, ROBERT ISAACS, APPELLANT.

Appeal from the District Court of Oklahoma County; David Cook, Judge.

REVERSED AND REMANDED.

Jeffrey L. Hatfield, Oklahoma City, for appellant.
Leslie Anne Collum, Gen. Counsel, Oklahoma State Bureau of Narcotics and Dangerous Drugs, Oklahoma City, for appellee.

BAILEY, Judge

¶1 Appellant Robert Isaacs (Isaacs) seeks review of the Trial Court's order denying Isaacs' motion to vacate default judgment granted to Appellee State of Oklahoma (State) in State's forfeiture action. Herein, Isaacs asserts error of the Trial Court in denying his motion to vacate, State having failed to conduct a "distinct and meaningful search of all reasonably available sources to ascertain the whereabouts of . . . Isaacs," rendering the notice of forfeiture by publication as was given (and on which State's default judgment rested) fatally flawed.

¶2 In June, 1987, officers of the Oklahoma State Bureau of Narcotics and Dangerous Drugs, the Oklahoma City Police Department and the Forest Park Police Department served a search warrant on Isaacs at his place of residence in Oklahoma County. Pursuant thereto, the officers seized, among others, nine (9) pounds of marijuana, drug paraphernalia, several guns and $17,023.36 in currency.

¶3 On October 29, 1987, State initiated the instant forfeiture action seeking forfeiture of the currency, and mailed (by registered mail) Notice of Seizure and Forfeiture to Isaacs at his last known address. The Post Office returned the notices unclaimed with the notation, "Moved Left No Address."

¶4 In November, 1987, having failed to obtain service of notice by registered mail, State then published Notice of Seizure and Forfeiture in a newspaper of general circulation in Oklahoma County. In March, 1988, upon Isaacs' failure to answer, State obtained judgment by default in the forfeiture action. In October, 1988, Isaacs was finally arrested on drug charges arising from the June, 1987 search and seizure.

¶5 In October, 1990, Isaacs filed his motion to vacate the default judgment of forfeiture, asserting failure of State to conduct a meaningful search for Isaacs' whereabouts, commensurate insufficiency of the notice of forfeiture by publication,

¶6 State responded, asserting no statutory requirement for personal service of notice of forfeiture and propriety of notice by publication upon failure of attempted service of notice by registered mail.

¶7 As preliminary matter, we note the rules of statutory construction clearly provide that where two statutes deal with the same subject, one general and one specific, the specific statute controls.

¶8 However, § 2-506 cannot be read to be devoid of constitutional protections. That is to say, § 2-506, by requiring mailing to the last known address, must clearly contemplate some investigation to determine the validity of that last "known" address. In that regard, it is well-established that due process requires notice reasonably calculated to inform interested parties, and due process allows notice by publication only where service of notice on the person cannot reasonably be obtained.

¶9 Under these circumstances, we believe the instant matter should be remanded to the Trial Court for hearing on whether the efforts undertaken by State to give Isaacs notice met due process standards. On remand, if State shows, after failure of notice by mail, a search of reasonable sources of information

¶10 The order of the Trial Court denying Isaacs' motion to vacate is therefore REVERSED and the cause REMANDED for further proceedings.

¶11 GARRETT, P.J., and ADAMS, J., concur.

Footnotes:

1 State alleged in response to Isaacs' motion to vacate and again in its brief here on appeal that Isaacs ultimately "entered a plea of guilty to the criminal charges based upon the evidence found during [execution] of the search warrant."

2 In support of his argument, Isaacs relies on Title 12, Oklahoma Statutes, providing in pertinent part:

Service of summons upon a named defendant may be made by publication when it is stated in the petition, verified by the plaintiff or his attorney, or in a separate affidavit by the plaintiff or his attorney filed with the court, that with due diligence service cannot be made upon the defendant by any other method.

12 O.S.Supp. 1987 § 2004 (C)(3).

And cf., e.g., Johnson v. McDaniel, 569 P.2d 977 (Okl. 1977) (in action for cancellation of oil/gas lease, all sources must be exhausted in meaningful pursuit of information as to defendant's whereabouts, and notice by publication alone insufficient under due process guarantees where defendant's address was easily obtainable from plaintiffs law firm's files; held, order denying motion to vacate default judgment based on such defective notice by publication reversed); Bomford v. Socony, 440 P.2d 713 (Okl. 1968) (in quiet title action, due process requires notice by means reasonably calculated to inform parties having legal rights which are to be directly affected, and notice by publication alone not sufficient where adverse parties' names and addresses are known or easily ascertainable; party seeking notice by publication must disclose facts concerning "due diligence" exercised in ascertaining adversaries' whereabouts; held, judgment based on notice by publication not tainted by failure of judgment roll to affirmatively show diligent effort to procure personal service, and judgment affirmed).

3 At the time of the search and seizure of the currency, Title 63 provided in pertinent part:

A. The following shall be subject to forfeiture: . . . . .

7. All things of value furnished, or intended to be furnished, in exchange for a controlled dangerous substance . . ., all proceeds traceable to such an exchange, and all monies . . . used, or intended to be used to facilitate violation of the Uniform Controlled Dangerous Substances Act.

63 O.S.Supp. 1986 § 2-503 .

At the time of notice by publication, Title 63 provided:

B. Notice of seizure and intended forfeiture proceeding shall be filed in the office of the clerk of the district court for the county wherein the such property is seized and shall be given to all owners and parties in interest.

C. Notice shall be given by the agency seeking forfeiture according to one of the following methods:

. . . . .

2. Upon each owner or party in interest whose name and address is known to the attorney in the office of the agency prosecuting the action . . . by mailing a copy of the notice by registered mail to the last-known address; or

3. Upon all owners or interested parties, whose addresses are unknown, but who are believed to have an interest in the property, by one publication in a newspaper of general circulation in the county where the seizure was made.

D. Within sixty (60) days after the mailing or publication of the notice, the owner of the property and any other party in interest or claimant may file a verified answer and claim to the property described in the notice of seizure and of the intended forfeiture proceeding.

E. If at the end of sixty (60) days after the notice has been mailed or published there is no verified answer on file, the court shall hear evidence upon the fact of the unlawful use and shall order the property forfeited to the state, if such fact is proved.

63 O.S.Supp. 1987 § 2-506 .

4 See, e.g., City of Tulsa v. Smittle, 702 P.2d 367 (Okl. 1985); Dulan v. Johnston, 687 P.2d 1045 (Okl. 1984); Ind. Sch. Dist. No. I of Tulsa Cty. v. Bd. of Cty. Com'rs. of Tulsa Cty., 674 P.2d 547 (Okl. 1983); State ex rel. Murphy v. Boudreau, 653 P.2d 531 (Okl. 1982).

5 Johnson, 569 P.2d at 981; Bomford, 440 P.2d at 718-720.

6 See, footnote 5.

7 Bomford, 440 P.2d at 718.