State v. One Black 1989 Cadillac VIN 1G6DW51Y8KR722027, 930352

CourtUnited States State Supreme Court of North Dakota
Citation522 N.W.2d 457
Docket NumberNo. 930352,930352
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. ONE BLACK 1989 CADILLAC VIN 1G6DW51Y8KR722027, Defendant and Appellee. Civ.
Decision Date03 October 1994

Sidney J. Hertz Fiergola, Asst. Atty. Gen., Bismarck, for plaintiff and appellant.

Thomas M. Tuntland, Mandan, for defendant/owner and appellee.


The State of North Dakota appeals from a summary judgment dismissing its forfeiture action against a 1989 Black Cadillac. Five and a half months after it seized the Cadillac without a warrant, the State began the forfeiture action under North Dakota's Uniform Controlled Substances Act. The trial court dismissed the forfeiture action because it had not been "instituted promptly" as required by statute. We affirm.


The State's complaint alleges that in February 1992 undercover law enforcement agents bought marijuana at Herb's Lounge, Wilton, North Dakota. In two instances, the Cadillac was allegedly used by its owner, Herbert O'Rourke, to transport marijuana for the purpose of sale.

On March 3, 1993, a law enforcement officer seized the Cadillac without a warrant under the forfeiture provisions of the Uniform Controlled Substances Act (Act). Under the Act, vehicles used to transport controlled substances for the purpose of sale are subject to forfeiture. N.D.C.C. Sec. 19-03.1-36(1)(e). Property subject to forfeiture under the Act may be seized without process if "a law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of [the Act]." N.D.C.C. Sec. 19-03.1-36(2)(d).

The State began a forfeiture proceeding against the Cadillac on August 24, 1993, 174 days after the vehicle had been seized without process. O'Rourke answered the State's complaint and moved to dismiss for lack of jurisdiction. O'Rourke argued the court lacked jurisdiction because the State had not "instituted promptly" forfeiture proceedings as required by N.D.C.C. Sec. 19-03.1-36(3). The State argued the forfeiture action had been instituted promptly. The State claimed the 174-day delay was reasonable because law enforcement and O'Rourke were negotiating O'Rourke's possible cooperation as an undercover informant in a pending criminal investigation.

The trial court dismissed the State's complaint, concluding the forfeiture action had not been instituted promptly:

"As noted, no reason was offered in this case that would have prevented the government from commencing the proceeding. Instead, it attempts to justify its failure to act promptly. The government says it delayed in order to make the owner's cooperation more effective.

* * * * * *

"As stated, the question to be resolved is not whether delay was 'reasonable' or 'justifiable,' but whether the government complied with the statutory command that it institute proceedings promptly. There was nothing to prevent it from doing so, and the delay of 174 days was not prompt. The owner did not engage in any activity that could be said to create an estoppel or waiver against him."

The State appeals. This Court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-01. The appeal is timely under Rule 4(a), N.D.R.App.P.


The interpretation of a statute is a question of law, and is fully reviewable by this Court on appeal. Gabriel v. Minnesota Mut. Fire and Cas., 506 N.W.2d 73, 75 (N.D.1993). In interpreting statutes, we are guided by several principles of statutory construction. In applying a uniform law, we construe its provisions "to effectuate its general purpose to make uniform the law of those states which enact it." N.D.C.C. Sec. 1-02-13. Additionally, we construe statutes

"as a whole to determine the intent of the legislature, deriving that intent by taking and comparing every section as a part of a whole. When the language of a statute is ambiguous or of doubtful meaning, we may look beyond the letter of the statute to ascertain legislative intent."

City of Bismarck v. Santineau, 509 N.W.2d 56, 59 (N.D.1993) (citations omitted). Finally,

"if a statute is susceptible of two constructions, one which will be compatible with constitutional provisions or one which will render the statute unconstitutional, we must adopt the construction which will make the statute valid."

Paluck v. Bd. of County Comm'rs, Stark County, 307 N.W.2d 852, 856 (N.D.1981).

Because both O'Rourke and the State submitted affidavits on the motion to dismiss, the motion must be treated as one for summary judgment. Rule 12(c), N.D.R.Civ.P.

"[S]ummary judgment is appropriate only if there are no issues of material fact or any conflicting inferences to be drawn from those facts, and a party is entitled to judgment as a matter of law. A trial court's decision on a motion for summary judgment is a conclusion of law and is fully reviewable on appeal." (Citations omitted.)

Moen v. Moen, 519 N.W.2d 10, 12 (N.D.1994). The party moving for summary judgment has the burden of demonstrating there is no genuine issue of material fact. Continental Cas. Co. v. Kinsey, 513 N.W.2d 66, 69 (N.D.1994). The party opposing the motion for summary judgment cannot rest upon mere allegations or denials in the pleadings, but must respond, showing there is a genuine issue for trial. Continental Cas. Co. "Even if factual disputes exist between the parties, summary judgment is appropriate if the law is such that the resolution of the factual dispute will not change the result." Continental Cas. Co.


The Uniform Controlled Substances Act authorizes a law enforcement agency to seize property without process when the law enforcement agency "has probable cause to believe that the property was used or is intended to be used in violation of [the Act]." N.D.C.C. Sec. 19-03.1-36(2)(d). The Act directs "[i]n the event of seizure pursuant to subsection 2 [Sec. 19-03.1-36(2) ], proceedings under subsection 4 [Sec. 19-03.1-36(4) ] must be instituted promptly." N.D.C.C. Sec. 19-03.1-36(3). Subsection 4, however, does not expressly set a procedure for instituting a forfeiture proceeding. Subsection 4 provides:

"Property taken or detained under this section is not subject to replevin, but is deemed to be in custody of the board or a law enforcement agency subject only to the orders and decrees of the district court having jurisdiction over the forfeiture proceedings as set out in subsection 2 [19-03.1-36(2) ]. When property is seized under this chapter, the board or a law enforcement agency may:

a. Place the property under seal.

b. Remove the property to a place designated by it.

c. Require the attorney general to take custody of the property and remove it to an appropriate location for disposition in accordance with law."

N.D.C.C. Sec. 19-03.1-36(4).

Procedures for instituting a forfeiture proceeding are contained in N.D.C.C. Secs. 19-03.1-36.1 through 19-03.1-36.7, which were added to the Act in 1989. See S.L.1989, ch. 268, Secs. 2-8. The legislative history shows the 1989 amendments to the Act were designed to establish

"procedures for the forfeiture of property connected with the manufacturing, sale, or transportation of controlled substances, including requiring the filing of a summons and complaint providing notice to the owner and any interest holder in the property of the forfeiture proceedings."

Minutes of Senate Judiciary Committee on Senate Bill 2176, Bill Summary, Prepared by Legislative Council, March 16, 1989. The need for adding a procedure to the statute was explained by an assistant attorney general, who provided written comments and spoke in favor of the amendments. In written testimony, the assistant attorney general explained:

"Although N.D.C.C. Sec. 19-03.1-36 does authorize forfeiture, no specific procedures are set forth in that section. A similar provision has been struck down as unconstitutional by the South Dakota Supreme Court [State v. Miller, 248 N.W.2d 377 (S.D.1976) ] in that it did not provide for notice and hearing before forfeiture of property.

* * * * * *

"This bill is intended to establish specific forfeiture procedures to guide both the court and the parties to a forfeiture proceeding and to ensure that the due process rights of the owner of the property to be forfeited, or any person with a legal interest in that property, will be protected."

Minutes of Senate Judiciary Committee on Senate Bill 2176, Summary of Testimony of Robert Bennett, January 11, 1989.

The 1989 amendments provide that property subject to forfeiture under the Act, other than property that may be summarily forfeited, may be forfeited by order of a district court only after:

"1. A written consent to forfeiture executed by the owner of the property and all persons with a legal interest in the property to be forfeited has been filed with the court; or

"2. Commencement of forfeiture proceedings."

N.D.C.C. Sec. 19-03.1-36.1. Forfeiture proceedings begin by the

"filing of a summons and complaint for forfeiture of the property in the district court of the county in which the property was seized, is being held, or is located.... The proceedings must be brought in the name of the state. The complaint must describe the property, state its location, state its present custodian, state the name of each owner if known, state the name of each party with a legal interest in the property if known or of legal record, allege the essential elements of the violation that is claimed to exist, and must conclude with a prayer to enforce the forfeiture. Notice of the forfeiture proceedings must be given to each known owner and known person with a legal interest in the property to be forfeited by serving a copy of the summons and complaint in accordance with the North Dakota Rules of Civil Procedure...."

N.D.C.C. Sec. 19-03.1-36.3.

The language of subsections 3 and 4 of N.D.C.C. Sec. 19-03.1-36 is ambiguous as to what procedure must be promptly initiated following a seizure. We conclude, however, reading ...

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