Property Seized on or about Nov. 14-15, 1989, Matter of
| Decision Date | 16 June 1993 |
| Docket Number | No. 91-1681,91-1681 |
| Parties | In the Matter of the PROPERTY SEIZED ON OR ABOUT NOVEMBER 14-15, 1989. Kenneth Dale French, Appellant. |
| Court | Iowa Supreme Court |
Thomas M. Walter of Johnson, Hester & Walter, Ottumwa, for appellant.
Bonnie J. Campbell, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., Gerald N. Partridge, County Atty., and Barbara A. Edmondson, Asst. County Atty., for appellee.
Considered by McGIVERIN, C.J., and HARRIS, CARTER, LAVORATO, and ANDREASEN, JJ.
Kenneth Dale French, the owner of allegedly illegal coin-operated gaming machines, appeals from an order for the forfeiture of those machines, other gaming machines, and other real and personal property allegedly acquired through the proceeds of those machines. After considering the arguments presented, we affirm the judgment of the district court.
On November 14-15, 1989, a large amount of property was seized from appellant. This included his house, warehouse, various cars, bank accounts, certificates of deposit, amusement machines, race cars, trailers, and numerous personal possessions. French had accumulated large amounts of money and possessions.
The Washington County Attorney filed an application for the forfeiture of this property on November 14-15, 1989. This was amended on December 18 to include a number of video "poker" machines and twenty-three pages of previously unlisted property. French filed formal requests for the return of all property that the State sought to forfeit.
It has been the State's theory throughout this proceeding that all of the allegedly forfeitable property that was not illegal to possess was acquired with the proceeds from illegal gaming machines owned or possessed by French. French denies this and also urges that the machines in question were amusement devices authorized under Iowa Code section 99B.10 rather than prohibited gambling devices.
The forfeiture hearing was held on February 6-9, 12, 1990, and June 4-5, 1990. Shortly before the hearing, a proposed stipulation was discussed, on the record and with appellant present, in chambers. At the opening of the hearing, French's attorney presented the stipulation for approval. Because the State's counsel was unclear on the extent of the proposed stipulation, the court sought to clarify it on the record. To initiate that effort, the court stated:
Let me tell you what I think Mr. Parrish [French's attorney] has agreed to. Mr. Parrish has agreed that his client will consent to a forfeiture of all of the property which you have listed as items that you want forfeited, except certain items. One of the exceptions is any security interest which the West Chester Bank might have. The second exception is the security interest which Mountain Coin might have. The third exception is any equity which Mr. French might have in his house. The fourth exception is any equity he might have in his warehouse. The fifth exception is the children's property. And the sixth exception, and the last exception, is land which adjoins ... his house.
Counsel for the State and counsel for French agreed to the stipulation as reiterated by the court. French said nothing.
On February 12, 1990, the court asked both sides to identify the property that remained in dispute. The response received to this question indicated that French intended to repudiate the terms of the stipulation. This became even more clear on March 5 when French filed a formal request for that purpose along with an affidavit stating that he never intended to agree that his interest in any of the property sought by the State was a proper subject of forfeiture.
In a lengthy ruling dated December 5, 1990, the court denied French's request to rescind the stipulation and granted the State's forfeiture application as to French's interest in all of the property for which forfeiture was sought. It reserved until a later time the disposition of interests of third parties in and to certain of that property.
Evidence was presented that French received extensive revenues from the illegal gaming machines owned by him and placed for use at various locations. In addition books and records (French kept two sets of books) were offered in evidence that indicated that the proceeds from the illegal gaming operations had to be the primary source of the money used to acquire the other assets that were forfeited.
In addition to invoking the stipulation for forfeiture, the court, as to all of the items sought to be forfeited, made findings of fact on the merits sufficient to sustain forfeiture under Iowa Code section 809.6 (1991). The court, in keeping with the definitions of section 809.1, expressly found the poker machines to be illegal gambling devices, and that the other property forfeited had been acquired through proceeds received from these illegal machines.
On appeal, French challenges the court's refusal to permit him to repudiate the stipulation and also challenges the court's legal conclusion that the poker machines were illegal gaming devices. Other facts material to our decision will be discussed in connection with the legal issues presented.
French urges that the district court erred in refusing to permit him to repudiate the stipulation made concerning forfeiture of the bulk of the items contained in the State's application. He argues that to invoke the stipulation is tantamount to "binding the court's determinations as to questions of law, i.e., that possession of the 'pokers' was illegal."
We conclude that the court did not act improperly in holding French to the terms of the agreement that his counsel approved on the record in the court proceeding. We have recognized that stipulations in formal litigation may be of two kinds: those that are a mere admission of fact, relieving a party from the inconvenience of making proof, and those that constitute a concession of entire issues in the litigation. See Graen's Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300 (Iowa 1983).
The stipulation at issue here was obviously of the latter type. Such agreements, which are tantamount to a consent decree as to part of the case, are not against public policy. We have recognized that in such situations
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