STATE ex rel. DUGGER v. TWELVE THOUSAND DOLLARS

STATE ex rel. DUGGER v. TWELVE THOUSAND DOLLARS
2007 OK CIV APP 20
155 P.3d 858
Case Number: 98995
Decided: 01/30/2007
Mandate Issued: 02/22/2007
DIVISION II
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

THE STATE OF OKLAHOMA ex rel. RICHARD L. DUGGER, DISTRICT ATTORNEY FOR BECKHAM COUNTY, STATE OF OKLAHOMA, and the DISTRICT II DRUG TASK FORCE, Plaintiffs/Appellees,
v.
TWELVE THOUSAND DOLLARS ($12,000.00) CASH, Defendant,
and
RALPH PASSALACQUA, Claimant/Appellant.

APPEAL FROM THE DISTRICT COURT OF BECKHAM COUNTY, OKLAHOMA

HONORABLE DOUG HAUGHT, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

Dennis Smith, DISTRICT ATTORNEY, Daniel C. Jacobsma, ASSISTANT DISTRICT ATTORNEY, Sayre, Oklahoma, for Plaintiffs/Appellees
M. Michael Arnett, THE ARNETT LAW FIRM, Oklahoma City, Oklahoma, for Claimant/Appellant

JOHN F. FISCHER, JUDGE:

¶1 Ralph Passalacqua appeals from the Trial Court's denial of his request for a jury trial in a civil forfeiture proceeding. Based on our review of the record on appeal and applicable law, we reverse and remand for further proceedings.

BACKGROUND FACTS

¶2 On February 27, 2002, Passalacqua and companion Robert James Dolan were stopped for speeding in Beckham County, Oklahoma. As a result of the stop, both men were arrested on suspicion of drug trafficking and twelve thousand dollars ($12,000) in cash was confiscated from their rental vehicle along with a small amount of suspected marijuana and other items that were consistent with drug trafficking. The Beckham County District Attorney filed a petition seeking forfeiture of the cash pursuant to 63 O.S.2001 § 2-503(A)(6) alleging, based on the sworn affidavit of the arresting officer, that the cash was intended to be used to purchase marijuana.

¶3 Both men were served but only Passalacqua appeared in the Trial Court. Passalacqua filed an answer in which he denied that the cash was intended to be used to purchase marijuana. The matter was set for hearing on October 29, 2002. On October 14, 2002, Passalacqua filed a motion to enter the matter on the Trial Court's jury docket. On November 1, 2002, the Trial Court denied Passalacqua's request for a jury trial.1

STANDARD OF REVIEW

¶5 The Trial Court concluded that the applicable statute,

DISCUSSION

I. The Statutory Forfeiture Provisions

¶6 The State's petition sought forfeiture of the cash under the "Enforcement and Administrative Provisions" of the Uniform Controlled Dangerous Substances Act,

¶7 Title

A. Any peace officer of this state shall seize the following property:

1. Any property described in subsection A of Section 2-503 of this title. Such property shall be held as evidence until a forfeiture has been declared or release ordered, except for property described in paragraphs 1, 2 and 3 of subsection A of Section 2-503 of this title;

. . . .

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 such property is seized and shall be given all owners and parties in interest.

. . . .

D. Within forty-five (45) 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 forty-five (45) 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.

F. If a verified answer is filed, the forfeiture proceeding shall be set for hearing.

G. At a hearing in a proceeding against property described in paragraphs 4 through 6 of subsection A or subsections B and C of Section 2-503 of this title, the requirements set forth in said paragraph or subsection, respectively, shall be satisfied by the state by a preponderance of the evidence.

H. The claimant of any right, title, or interest in the property may prove a lien, mortgage, or conditional sales contract to be a bona fide or innocent ownership interest and that such right, title, or interest was created without any knowledge or reason to believe that the property was being, or was to be, used for the purpose charged.

. . . .

N. If the court finds that the state failed to satisfy the required showing provided for in subsection G of this section, the court shall order the property released to the owner or owners.

The Trial Court reviewed this statute and determined that there was nothing in the language that specifically required the jury trial requested by Passalacqua, and we do not find that interpretation unreasonable based on a plain reading of the statute. While the statute does require a "hearing," the term "jury trial" is not used.

¶8 The governing principle in statutory construction is legislative intent. Rout v. Crescent Pub. Works Auth.,

¶9 Passalacqua prevails in this appeal if he can establish that either the statute, the United States Constitution or the Oklahoma Constitution requires a jury trial in this forfeiture proceeding. Although the Trial Court correctly observed that the language of the statute does not unequivocally specify a jury trial, we find the constitutional issue dispositive.

II. The Seventh Amendment

¶10 The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." U.S. Const. amend. VII. Where Congress creates a new statutory right but does not specify a statutory remedy, the parties retain their common law remedies: "[T]he ordinary common law remedy carries with it its ordinary incident of jury trial." U.S. v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 458 (7th Cir. 1980). Federal jurisprudence makes clear that, "the Seventh Amendment created no new right to jury trial but merely preserve[d] the right to jury trial in cases where it was enjoyed under pre-existing law." Id. at 456.

¶11 Historically, forfeiture was a civil proceeding in rem in which the property utilized in the criminal enterprise was treated as being guilty of wrongdoing independent of the owner's or user's conduct. Id. at 454; U.S. v. Real Prop. Located At 2101, 2280, 2401 and 2501 Maple Street, 750 F. Supp. 817 (E.D. Mich. 1990). Summary confiscation and destruction of private property declared to be a nuisance was also a well-recognized exercise of governmental authority, at least where the property was of "trifling value." Lawton v. Steele,

¶12 Critical to this analysis, however, is the nature of the property seized.

Courts have recognized two classes of cases of contraband subject to forfeiture by statute. The first class is contraband per se, which are things that may be forfeited because they are illegal to possess and not susceptible of ownership. . . . The second class is derivative contraband, which are things that may be forfeited because they are instrumentalities of a crime, but which ordinarily are not illegal to possess.

Mims Amusement Co. v. South Carolina Law Enforcement Div.

¶13 The forfeiture of contraband per se is a proceeding in rem to which no right to jury trial exists. Moore v. Brett,

¶14 Where the property subject to forfeiture is not contraband per se, the issue is whether the property was used as an integral part of a crime. Absent proof of the criminal connection, the property is not subject to forfeiture.

¶15 The proper Seventh Amendment inquiry concerning the forfeiture of property that is not contraband per se is whether under English and American practice prior to ratification of the Bill of Rights on December 15, 1791, courts utilized jury trials "in civil proceedings in rem for enforcement of statutory forfeitures in violation of customs laws or other statutes." One 1976 Mercedes Benz, 618 F.2d at 458. "[B]oth English and American practice prior to 1791 recognized [jury] trial of in rem actions at common law as the established mode of determining the propriety of statutory forfeitures on land for breach of statutory prohibitions." Id. at 466.

¶16 Consequently, the United States Supreme Court has repeatedly recognized that the claimant in cases involving property that is not contraband per se is entitled to a jury trial. The Sarah,

¶17 However, this case is not prosecuted pursuant to federal forfeiture statutes. Further, the Seventh Amendment's guarantee of a jury trial in civil forfeiture cases is not applicable to the states. City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

III. The Oklahoma Constitution

¶18 The Oklahoma Supreme Court has previously found that various federal constitutional rights govern civil forfeiture proceedings in Oklahoma. Citing Austin v. United States,

¶20 In Turner v. City of Lawton,

¶21 But here we are not concerned with determining whether Oklahoma's Constitution provides more protection than the Seventh Amendment, because federal law requires a jury in these circumstances. Our analysis of the Oklahoma Constitution is required because the Seventh Amendment does not provide Passalacqua a right to trial by jury in this state court civil proceeding.

¶22 Article 2, § 19 of the Oklahoma Constitution provides, in part:

The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), or in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00).

The nature of the right guaranteed by this provision:

has reference to the right as it existed in the territories at the time of the adoption of the Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in the territories at that time, but the right as guaranteed under the United States Constitution and according to the course of the common law.

Keeter v. State ex rel. Saye

¶23 Our previous examination of federal law is, consequently, relevant to determining the state of the law in 1907. As the Seventh Circuit has throughly documented, the conclusion that the right to a jury in civil in rem forfeiture proceedings existed prior to 1791 is "inescapable." One 1976 Mercedes Benz 280S, 618 F.2d at 466. We have found nothing in our research to suggest that the federal government subsequently abrogated that right. Consequently, at least with the passage of the Organic Act in May of 1890, the right to a jury trial in civil in rem forfeiture proceedings existed in the Oklahoma and Indian Territories. See Organic Act §§ 28, 31, 2001 Okla. Stat., vol. 1. Writing in 1921, the Oklahoma Supreme Court concluded in Keeter that the right still existed in 1907.

It is undisputed that the Constitution of the United States and the common law were in force throughout the Indian Territory and the territory of Oklahoma upon the admission of Oklahoma into the Union, and the rule at that time was that in the trial of all causes that did not invoke the equitable or admiralty jurisdiction of the courts the party litigant was entitled to a jury trial.

Keeter

¶24 Keeter decided the constitutionality of Section 2, ch. 188, of the Session Laws of 1917, which provided:

The court having jurisdiction of the property so seized shall without a jury order an immediate hearing as to whether the property so seized was being used for unlawful purposes, and take such legal evidence as are offered on each behalf and determine the same as in civil cases. . . .

Keeter

¶25 The Court had no difficulty recognizing the well-settled common law principle that property "ordinarily used for unlawful purposes and . . . decreed to be a nuisance per se may be forfeited without a trial by jury." Keeter,

¶26 There are differences between section 2-506 and the statutes declared unconstitutional in Keeter and Hoskins. Most notably, the statute we review no longer contains the specific prohibition to a jury trial that Keeter found constitutionally objectionable. Nonetheless, we do not find that those differences dictate a different result. If a property claimant appears in a civil forfeiture proceeding concerning property that is not contraband per se and raises questions of fact by way of defense:

[T]here is no escape from the conclusion that in a proceeding of [that] kind under the law as it existed prior to statehood the claimant would as a matter of right have been entitled to a trial by jury according to the course of the common law and the federal Constitution, and that being true, that right under the Constitution of this state remains with the claimant in such proceedings, and the Legislature is without power to take away from the citizen that protection.

Keeter

¶27 Further, the holding in Keeter is consistent with the significant weight of authority from other states that have addressed this issue. See e.g. Idaho Dep't of Law Enforcement v. Real Prop. Located in Minidoka County, Idaho, 885 P.2d 381 (Idaho 1994) (holding that civil forfeiture absent right to jury trial violated Idaho Constitution); Maine v. One 1981 Chevrolet Monte Carlo, 728 A.2d 1259 (Me. 1999) (Maine Constitution recognizes a right to a trial by jury for parties in interest in a civil forfeiture proceeding); People ex rel. O'Malley v. 6323 North LaCrosse Ave., 634 N.E.2d 743 (Ill. 1994) (Illinois Constitution guarantees right to a jury trial in civil forfeiture proceeding involving real property allegedly used to facilitate drug trafficking); Pennsylvania v. One Z-28 Camaro Coupe, 610 A.2d 36 (Pa. 1992) (Pennsylvania Constitution entitled owner of property, seized in a civil forfeiture, to a jury trial); Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957 (Fla. 1991) (forfeiture of property seized must be decided by jury trial); People v. One 1941 Chevrolet Coupe, 231 P.2d 832 (Cal. 1951) (state constitution grants right to a jury trial for civil forfeitures of derivative contraband); Oregon v. 1920 Studebaker Touring Car, 251 P. 701 (Or. 1926) (a jury trial is a prerequisite to the forfeiture of an automobile in which liquor was found); Colon v. Lisk, 47 N.E. 302 (N.Y. 1897) (seizure statute violates state constitution by failing to provide for a jury); Massachusetts v. One 1972 Chevrolet Van, 431 N.E.2d 209 (Mass. 1982) (right to jury trial existed at common law and preserved by state constitution); Plimpton v. Town of Somerset, 33 Vt. 283 (Vt. 1860) (state statute making referee's report prima facie evidence of the facts reported violated common law right to a trial by jury).

¶28 Of the cases we reviewed, only courts in Michigan and Georgia reached a different result. Swails v. Georgia, 431 S.E.2d 101 (Ga. 1993), cert. denied, 510 U.S. 1011, 114 S. Ct. 602 (1993) (right to jury trial not recognized in common law forfeitures, therefore not guaranteed by Georgia Constitution); In re Forfeiture of $1,159,420, 486 N.W.2d 326 (Mich. Ct. App. 1992), cert. denied sub nom., Hawkins v. Michigan,

¶29 Finally, Passalacqua's request for a jury trial presents the issue that was not present in State v. One Thousand Two Hundred Sixty-Seven Dollars,

¶30 In contrast, neither party moved for summary judgment in this case and Passalacqua repeatedly asserted his right to a jury trial. The existence of factual issues in this case is underscored by the Trial Court's comments at the conclusion of the trial, in which it is clear that the weight of Passalacqua's testimony compared to the testimony of the arresting officer was a critical, if not the determinative factor in the Trial Court's decision. While we do not disagree with the Trial Court's evaluation of the evidence, the Oklahoma Constitution guarantees Passalacqua the right to have a jury make that determination.

CONCLUSION

¶31 Trial by jury in civil cases involving more than $1,500 is guaranteed by Article 2, § 19 of the Oklahoma Constitution. That constitutional guarantee applies in forfeiture proceedings of property that is not contraband per se conducted pursuant to

¶32 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

WISEMAN, P.J., and GOODMAN, J., concur.

FOOTNOTES

1 Passalacqua filed a petition in error on December 3, 2002, Case No. 98,592, and sought to stay the bench trial. The Oklahoma Supreme Court denied the request to arrest the bench trial proceeding. On its own motion, the Court dismissed the appeal on January 6, 2003 for lack of an appealable order.

2 Several of these sections have recently been amended. We will refer to the versions in effect at the time of Passalacqua's arrest.

3 Section 2-503(A) provides:

The following shall be subject to forfeiture:

1. All controlled dangerous substances which have been manufactured, distributed, dispensed, acquired, concealed or possessed in violation of the Uniform Controlled Dangerous Substances Act . . .;

2. All raw materials, products, and equipment of any kind and all drug paraphernalia . . . which are used, or intended for use, in manufacturing, compounding, processing, delivering . . . injecting, ingesting, inhaling or otherwise introducing into the human body any controlled dangerous substance . . .;

3. All property which is used, or intended for use as a container for property described in paragraphs 1 and 2 of this subsection;

4. All conveyances . . . which are used to transport, conceal, or cultivate for purposes of distribution . . .;

5. All books, records and research . . .;

6. 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, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of the [Act];

7. All monies, coin and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia . . .;

8. All real property . . . which is used, or intended to be used . . . to commit . . . a violation of the [Act] which is punishable by imprisonment for more than one (1) year . . .; and

9. All weapons possessed, used or available for use in any manner to facilitate a violation of the [Act]."

4 The Court has also noted that among the due process guarantees applicable in forfeiture proceedings is a decision based on the record. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, n.37, 131 P.3d 116, 124, n.37 (citing R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure, § 17.8, p. 646 (2d ed. 1992)). In State ex rel. Macy v. Four Thousand Two Hundred Sixty Dollars and No/100 ($4,260.00), 1996 OK 96, 925 P.2d 50, the Court held that due process required constitutionally sufficient notice in forfeitures pursuant to section 2-506.

5 Cf., Maryland Nat'l Ins. Co. v. District Court, 1969 OK 73, 455 P.2d 690, determining that a surety of a forfeited bail bond in a criminal case was not entitled to a jury trial because sureties did not have that right at common law. We find that case distinguishable to the extent it was not concerned with the civil forfeiture of property used in connection with criminal activity. Nonetheless, the Court in Maryland acknowledged the holding in Keeter and applied the same analytical framework.