Idaho Dept. of Law Enforcement v. Kluss

• Decision Date: 13 May 1994
• Docket Number: No. 20539,20539
• Citation: 125 Idaho 682,873 P.2d 1336
• Parties: IDAHO DEPARTMENT OF LAW ENFORCEMENT, By and Through Richard L. Cade, Director, Plaintiff-Appellant, v. Real Property Located Within Kootenai County, Idaho, legal description as follows: Lot 12, Block 4, Indian Meadows, according to the plat recorded in the offices of the County Recorder in Book "E" of Plats, , records of Kootenai County, Idaho and the Certificate of Corrected Dedication and Amendments to Indian Meadows Subdivision, recorded in Book 70 of Miscellaneous at , records of Kootenai County, Idaho, Defendant, and Robert Pete KLUSS, Claimant-Real Party in Interest, Respondent. IDAHO DEPARTMENT OF LAW ENFORCEMENT, By and Through Richard L. Cade, Director, Plaintiff-Appellant, v. Real Property Located Within Kootenai County, Idaho, legal description attached hereto as Exhibit "A", Defendant, and Robert Pete KLUSS, Claimant-Real Party in Interest, Respondent.
• Court: Idaho Supreme Court

Page 1336

873 P.2d 1336

125 Idaho 682

IDAHO DEPARTMENT OF LAW ENFORCEMENT, By and Through Richard L. Cade, Director, Plaintiff-Appellant, v.Real Property Located Within Kootenai County, Idaho, legal description as follows: Lot 12, Block 4, Indian Meadows, according to the plat recorded in the offices of the County Recorder in Book "E" of Plats, page 130, records of Kootenai County, Idaho and the Certificate of Corrected Dedication and Amendments to Indian Meadows Subdivision, recorded in Book 70 of Miscellaneous at page 364, records of Kootenai County, Idaho, Defendant andRobert Pete KLUSS, Claimant-Real Party in Interest, RespondentIDAHO DEPARTMENT OF LAW ENFORCEMENT, By and Through Richard L. Cade, Director, Plaintiff-Appellant, v.Real Property Located Within Kootenai County, Idaho, legal description attached hereto as Exhibit "A", Defendant andRobert Pete KLUSS, Claimant-Real Party in Interest, Respondent.

No. 20539.

Supreme Court of Idaho.

May 13, 1994.

Larry EchoHawk, Atty. Gen., Clayne S. Zollinger, Deputy Atty. Gen., argued, Boise, for appellant.

Harvey Richman, Coeur d'Alene, for respondent.

TROUT, Justice.

This appeal results from an award of attorney fees made by the district court to the respondent, Robert P. Kluss(Kluss) pursuant to I.C. § 12-117.Attorney fees were awarded after the court determined that the Department of Law Enforcement(DLE) had acted without a reasonable basis in fact or law.

BACKGROUND

The facts from which this forfeiture action arises are essentially undisputed.On June 21, 1991, Kluss was arrested for violations of the Controlled Substances Act.The arrest was the culmination of DLE efforts, which had included service of search warrants on two pieces of real property owned by Kluss.The search revealed that Kluss was engaged in a marijuana growing operation in the basement of his home.On the same date as Kluss' arrest, the DLE filed a notice of seizure on both real properties pursuant to the drug forfeiture provisions of I.C. § 37-2744A.Thereafter, the DLE failed to file a complaint within ninety days to initiate forfeiture proceedings as required by the statute.Nevertheless, the DLE continued its investigation and on October 2, 1991, filed a second notice of seizure on both properties and then filed a complaint on October 17, 1991, initiating this forfeiture action.

Kluss moved to have the case dismissed on the basis that the district court lacked subject matter jurisdiction over the forfeiture action.The district court agreed and granted Kluss' motion, finding that it lacked jurisdiction because the DLE had failed to initiate forfeiture proceedings within ninety days of the first notice of seizure and that the second notice of seizure was not authorized by statute.

Kluss then moved for an award of attorney fees.The district court granted Kluss an award of fees pursuant to I.C. § 12-117.The district court found that counsel for the state had not acted frivolously or with a cavalier attitude, but rather that the DLE acted without a reasonable basis in law.The district court also ruled that I.C. § 12-117 could apply to an in rem property forfeiture proceeding even though I.C. § 12-117 refers to an action between a "person" and a state agency as an adverse party.Further, the district court emphasized that his ruling was based upon the disparity of power between the state and the individual citizen in a forfeiture action and that the state agency must act with unequivocal statutory authorization before seizing a citizen's property.

On appeal, the DLE challenges only the district court's award of attorney fees.¹The DLE asserts that: 1) attorney fees are not allowed under I.C. § 37-2744A; 2) I.C. § 12-117 does not allow for an award of attorney fees against the DLE in property forfeiture actions; and, as an alternative, 3) the district court abused its discretion by awarding fees under I.C. § 12-117.

I.I.C. § 37-2744A DOES NOT PROVIDE FOR AN AWARD OF ATTORNEY FEES

The issue of attorney fees has been addressed by this Court on numerous occasions and today we once again affirm that Idaho is an "American rule" state requiring the parties to bear their own attorney fees absent statutory authorization or contractual right.Hellar v. Cenarrusa, 106 Idaho 571, 578, 682 P.2d 524, 531(1984).In that respect, the DLE is correct in asserting that I.C. § 37-2744A does not, in and of itself, provide for an award of attorney fees.Thus we must look elsewhere to determine if there is statutory authorization for an award of attorney fees against the DLE in property forfeiture actions.

II.AN AWARD OF ATTORNEY FEES UNDER I.C. § 12-117 IS ALLOWABLE IN PROPERTY FORFEITURE PROCEEDINGS

In this instance, the district court awarded fees to Kluss based upon I.C. § 12-117, which provides in part as follows:

12-117.Attorney's fees, witness fees and expenses awarded in certain instances.--(1) In any administrative or civil judicial proceeding involving as adverse parties a state agency and a person, the court shall award the person reasonable attorney's fees, witness fees and reasonable expenses, if the court finds in favor of the person and also finds that the state agency acted without a reasonable basis in fact or law....

The DLE first asserts that attorney fees are not authorized by I.C. § 12-117 in property forfeiture actions because I.C. § 12-117 applies only to administrative proceedings.The DLE reasons that because I.C. § 12-121 provides for an award of attorney fees in "civil proceedings" it would have been duplicative for the legislature to have also provided for attorney fees in civil proceedings in I.C. § 12-117.Thus, the DLE argues, the legislature must have intended "civil judicial proceedings" to include something else, like appeals from administrative proceedings.We disagree.

The DLE's argument ignores the fact that the two attorney fee statutes are directed at two separate types of litigation, although there may admittedly be some overlap between the provisions.Section 12-121 is intended to address any civil litigation, regardless of the identity of the parties, and pursuant to our limitation set forth in I.R.C.P. 54, is directed only at parties who pursue or defend an action frivolously, maliciously or without foundation.Section 12-117, on the other hand, is directed only at state agencies and only in those situations in which the agency acts unreasonably.The words "civil judicial proceeding" found in the section are intended to clarify that an award of fees may only be considered in civil actions before a judge, not administrative actions and criminal proceedings.Since I.C. § 37-2744A specifically states that property forfeiture proceedings are "civil actions", § 12-117 clearly applies.

The DLE also asserts that a property forfeiture action under I.C. § 37-2744A is an in rem action in which the adverse party to the state agency is the real property in question, not a "person" as required by I.C. § 12-117; therefore, an award of attorney fees is not authorized.

Admittedly, a civil property forfeiture action under I.C. § 37-2744A is an in rem proceeding brought in the name of the state against the property sought to be forfeited.However, there is no question from the forfeiture provisions that the legislature contemplated it would be the property owner who would be the real party in interest.The statute specifically provides that notice of the forfeiture must be sent to any persons holding a recorded interest in the property and that the forfeiture complaint must be served on all persons having an interest in it.The statute also requires that the property be released to the owner if the owner had no knowledge or reason to believe the real property was being...