State ex rel. Dugger v. $12,000.00

• Decision Date: 30 January 2007
• Docket Number: No. 98,995.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,98,995.
• Citation: 155 P.3d 858,2007 OK CIV APP 20
• Parties: 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.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

155 P.3d 858

2007 OK CIV APP 20

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.

No. 98,995.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

January 30, 2007.

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, OK, for Plaintiffs/Appellees.

M. Michael Arnett, The Arnett Law Firm, Oklahoma City, OK, 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

¶ 4 On January 15, 2003, the Trial Court conducted the trial of the District Attorney's petition for forfeiture of the $12,000. At the beginning of that proceeding, Passalacqua again requested that the matter be tried to a jury. The Trial Court noted its previous ruling, Passalacqua's appeal of that ruling, the Supreme Court's non-dispositive pronouncement on the jury trial issue and proceeded to try the case without a jury. At the conclusion of that trial, the Trial Court found that the evidence supported the District Attorney's petition and granted the request for forfeiture of the $12,000. The Trial Court's Order memorializing that ruling was filed February 14, 2003. The sole issue raised in Passalacqua's timely appeal from that Order is whether the Trial Court erred in refusing to grant his request for a jury trial.

STANDARD OF REVIEW

¶ 5 The Trial Court concluded that the applicable statute, 63 O.S.2001 § 2-506, did not require a jury trial in forfeiture proceedings. Passalacqua argues that he was guaranteed the right to a jury trial by the Seventh Amendment to the United States Constitution and Article 2, § 19 of the Oklahoma Constitution. We review the Trial Court's determination of these legal issues de novo. State ex rel. Dep't. of Human Servs. v. Baggett, 1999 OK 68, ¶ 4, 990 P.2d 235, 238.

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, 63 O.S. 2001 §§ 2-501 through 2-511.² The provisions of these civil statutes call for seizure and forfeiture of items used in relation to the illegal manufacture or distribution of controlled substances. Section 2-503 of the Act identifies "[p]roperty subject to forfeiture,"³ and provides that all items forfeited under the section "shall be forfeited under the procedures established in Section 2-506 of this title." 63 O.S.2001 § 2-503(D).

¶ 7 Title 63 O.S.2001 § 2-506 provides, in pertinent part:

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., 1994 OK 85, 878 P.2d 1045; City of Chandler v. State ex rel. Dep't of Human Servs., 1992 OK 137, 839 P.2d 1352. This intent is ascertained from the whole act in light of its general purpose and objective. Rout, 1994 OK 85 at ¶ 10, 878 P.2d at 1050 (footnotes omitted). Nonetheless, the law abhors forfeitures, and statutes authorizing forfeiture of private property are to be strictly construed. State v. Nesbitt, 1981 OK 113, 634 P.2d 1306; Willhite v. Willhite, 1976 OK 17, 546 P.2d 612; Pirkey v. State ex rel. Martin, 1958 OK 153, 327 P.2d 463.

¶ 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, 152 U.S. 133, 141, 14 S.Ct. 499, 502, 38 L.Ed. 385 (1894).

¶ 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., 366 S.C. 141, 621 S.E.2d 344, 348 (2005) (citing, among other cases, State ex rel. Brett v. Four Bell Fruit Gum Slot Machines, 1945 OK 261, 162 P.2d 539, ordering the forfeiture of illegal slot machines).

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