Idaho Dept. of Law Enforcement By and Through Cade v. Free

• Decision Date: 03 April 1961
• Citation: 126 Idaho 422,885 P.2d 381
• Parties: IDAHO DEPARTMENT OF LAW ENFORCEMENT By and Through Richard L. CADE, Director, Plaintiff-Respondent, v. Real Property Located in Minidoka County, Idaho, together with all fixtures and appurtenances, more particularly described as: Lot 2 in Block 5 of Vista Village Addition to the city of Rupert, Minidoka County, Idaho, according to the official plat thereof, now on file in the office of the County Recorder, Minidoka County, Idaho, recorded
• Court: Idaho Supreme Court

Page 381

885 P.2d 381

126 Idaho 422

IDAHO DEPARTMENT OF LAW ENFORCEMENT By and Through Richard L. CADE, Director, Plaintiff-Respondent, v. Real Property Located in Minidoka County, Idaho, together with all fixtures and appurtenances, more particularly described as: Lot 2 in Block 5 of Vista Village Addition to the city of Rupert, Minidoka County, Idaho, according to the official plat thereof, now on file in the office of the County Recorder, Minidoka County, Idaho, recorded April 3, 1961 in Book 8 of Miscellaneous, page 376, Minidoka County records. Subject to: a utility easement as shown by plat of Vista Village, dated March 17, 1961, executed by Lawrence L. Wright and Anne Julia Wright, husband and wife, and Marion D. Wright and Lorraine Wright, husband and wife, doing business as Wright Brothers, to the public, recorded April 3, 1961 in Book 8 of Miscellaneous, page 376, Minidoka County records. The effects of protective covenants of Vista Village, dated March 17, 1961. Executed by Lawrence L. Wright and Julia Wright, husband and wife, and Marion D. Wright and Lorraine Wright, husband and wife, doing business as Wright Brothers, a partnership, to the public, recorded April 3, 1961 in Book 8 of Miscellaneous, page 377, Minidoka County records, which recites inter alias covers all of Blocks 2, 3 and 5 and lots 1, 2, 3, 4, 5, and 6 in Block 4 of Vista Village; sets forth architectural control; restricts the area to residential use only and states dwellings shall not be less than 800 square feet and cost less than $9500.00, Defendants and Richard and Kathie FREE, Real Parties in Interest-Appellants.

No. 20626.

Supreme Court of Idaho.

June 8, 1994.

Service, Gasser & Kerl, Pocatello, for appellants. Steven V. Richert argued.

Larry EchoHawk, Idaho Atty. Gen., Clayne S. Zollinger, Jr., Deputy Atty. Gen., Boise, argued, for respondent.

TROUT, Justice.

Richard and Kathie Free (the "Frees") appeal from the denial of their motion to dismiss and the grant of summary judgment in favor of the Department of Law Enforcement (the "Department") and the subsequent issuance of a civil forfeiture order for their home, pursuant to I.C. § 37-2744A following Kathie Free's guilty plea to one count of felony delivery of marijuana which delivery allegedly took place in the Frees' home.

BACKGROUND AND PROCEDURAL HISTORY

In August of 1992, Richard and Kathie Free were charged with the delivery of one-quarter ounce of marijuana, valued at $60.00, which delivery allegedly was made by Kathie Free to one Oscar Gonzalez, a police informant, and which allegedly took place in a bedroom of the Frees' home. In January of 1993 Kathie Free pled guilty to the allegations of the complaint against her. All charges against Richard Free were dropped.

In December of 1992, the Department filed a complaint to forfeit the Frees' home pursuant to I.C. § 37-2744A. ¹ The Frees, as real parties in interest, filed a motion to dismiss on or about January 6, 1993, claiming that I.C. § 37-2744A unconstitutionally denied their right to a jury trial under the Idaho Constitution and that the proposed forfeiture was excessive in violation of the Excessive Fines Clause of the Eighth Amendment of the United States Constitution. On or about February 4, 1993, the Department filed a motion for summary judgment, based on Kathie Free's guilty plea.

On April 26, 1993, the district court granted the Department's summary judgment motion and denied the Frees' motion to dismiss. On May 11, 1993, the district court entered an order forfeiting the Frees' home. The Frees appeal the denial of their motion to dismiss, the grant of summary judgment and the issuance of the forfeiture order.

DISCUSSION

I. I.C. § 37-2744A IS SUBJECT TO EXCESSIVE FINES ANALYSIS

Since the district court's decision and order in this case, the United States Supreme Court decided Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In Austin, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies to civil in rem forfeitures of property under 21 U.S.C. §§ 881(a)(4) and (a)(7), the federal forfeiture statute on which I.C. § 37-2744A is modeled. ²

In Austin, the United States initiated civil forfeiture proceedings pursuant to the federal forfeiture scheme in 21 U.S.C. §§ 881(a)(4) and (a)(7) against a body shop and mobile home after the owner pled guilty to a drug offense. The district court granted summary judgment to the United States based on the affidavit of an officer that Austin had brought two ounces of cocaine from the home to the body shop to consummate a drug sale. The district court rejected Austin's argument that forfeiture of the properties would violate the Eighth Amendment's prohibition against excessive fines. The Ninth Circuit affirmed, holding that the Excessive Fines Clause of the Eighth Amendment is inapplicable to civil in rem forfeitures.

The Supreme Court reversed, holding that the Excessive Fines Clause does apply to civil in rem forfeitures. The Court reached this conclusion through a three-part analysis. First, the Court held that the Eighth Amendment proscriptions, including that against excessive fines, apply in both criminal and civil contexts. Austin, 509 U.S. at ---- - ----, 113 S.Ct. at 2804-05. Second, the Court held that for purposes of determining whether an Excessive Fines Clause analysis applies, the question is not whether the forfeiture is civil or criminal but whether the forfeiture constitutes punishment, at least in some part. Id. at ----, 113 S.Ct. at 2806. Third, the Court determined that the forfeiture provisions of 21 U.S.C. §§ 881(a)(4) and (7) were properly considered punitive, at least in part. Id. at ----, 113 S.Ct. at 2810. ³

The forfeiture provisions of I.C. § 37-2744A are virtually identical to the federal statute at issue in Austin. We are persuaded that the analysis in Austin applies equally to I.C. § 37-2744A. The civil designation of I.C. § 37-2744A is not dispositive. Further, I.C. § 37-2744A is punitive at least in part. Thus, we hold that the Excessive Fines Clause applies to in rem forfeitures made pursuant to I.C. § 37-2744A. ⁴ The district court granted summary judgment based on Kathy Free's guilty plea and rejected her Eighth Amendment argument because it believed it was precluded from applying the excessiveness analysis to a civil forfeiture. The Supreme Court's holding in Austin makes clear that the criminal-civil distinction is not determinative; rather, it is the punitive nature of the forfeiture which controls. ⁵

The Department argues that I.C. § 37-2744A(e) precludes the possibility that the forfeiture could be excessive because that subsection provides that "[t]he size of the property forfeited shall not be unfairly disproportionate to the size of the property actually used in violation of the provisions of this section." According to the Department, this provision would preclude, for example, the taking of an area the size of Texas if only one acre were used to grow marijuana. However, according to the Department, this size argument is not applicable in this case because the property involved here, a house, is not divisible.

The Department appears to be arguing two different things. First, that as a matter of law, subsection (e) renders I.C. § 37-2744A free from Eighth Amendment scrutiny. Second, that in this case, since the house is not divisible, there can be no Eighth Amendment violation. Neither part of this argument is convincing. The fact that the In Austin, the Supreme Court refused to establish a multi-factor test for determining whether a forfeiture is constitutionally excessive. The Supreme Court remanded the case because the court of appeals had not had occasion to consider what factors should inform such a decision since the court of appeals considered such analysis foreclosed; although the court of appeals had opined that " 'the government is exacting too high a penalty in relation to the offense committed.' " Austin, 509 U.S. at ----, 113 S.Ct. at 2812 (citing Yee v. City of Escondido, 503 U.S. 519, ----, 112 S.Ct. 1522, 1534, 118 L.Ed.2d 153 (1992)). The Court considered it prudent to let the lower courts consider that question in the first instance. Id., 509 U.S. at ----, 113 S.Ct. at 2812.

[126 Idaho 425] statute purports to limit the size of a property which could be taken does not preclude the possibility that the property actually taken could constitute an excessive fine under the Eighth Amendment. Subsection (e) cannot shield the forfeiture from Eighth Amendment review. Further, the mere fact that the real property taken is not divisible does not preclude the possibility that the forfeiture is excessive.

The facts of this case convince us to follow a similar course. As in Austin, the district court noted that it considered the forfeiture before it to be unwarranted under the facts. However, as in Austin, the district court had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry. The district court did not specifically consider any factors which might make the forfeiture excessive. Prudence dictates that we remand this case to the district court for an initial determination under circumstances where the excessiveness issue has been fully litigated. We note that the Austin Court mentioned one possible measure of an in rem forfeiture's excessiveness could be the relationship between the forfeited property and the offense. We note further, however, that the Court refused to limit the consideration of other possible factors. 509 U.S. at ---- n. 15, 113 S.Ct. at 2812 n. 15. ⁶

II. I.C. § 37-2744A VIOLATES THE RIGHT TO A JURY TRIAL UNDER THE IDAHO CONSTITUTION

This Court has not had prior occasion to address the constitutionality of that part of I.C. § 37-2744A which denies a jury trial in forfeiture proceedings. I.C. § 37-2744A(d)(3)(D). However, on the issue of...