Tellevik v. Real Property Known as 6717 100th Street S.W. Located in Pierce County, 18197-5-II

• Decision Date: 29 August 1996
• Docket Number: No. 18197-5-II,18197-5-II
• Citation: 921 P.2d 1088,83 Wn.App. 366
• Court: Washington Court of Appeals
• Parties: George B. TELLEVIK, Chief, Washington State Patrol, Respondent, v. REAL PROPERTY KNOWN AS 6717 100TH STREET S.W., LOCATED IN PIERCE COUNTY, Washington and all Appurtenances and Improvements Thereon, Defendant, John Joseph Chavez, Appellant.

Page 366

83 Wn.App. 366

921 P.2d 1088

George B. TELLEVIK, Chief, Washington State Patrol, Respondent, v. REAL PROPERTY KNOWN AS 6717 100TH STREET S.W., LOCATED IN

PIERCE COUNTY, Washington and all Appurtenances

and Improvements Thereon, Defendant,

John Joseph Chavez, Appellant.

No. 18197-5-II.

Court of Appeals of Washington,

Division 2.

Aug. 29, 1996.

Frederick John Caruso, Asst. Atty. Gen., Olympia, for respondent.

Nicholas Campbell Holt, Steinborn & Associates, Seattle, for appellant.

MORGAN, Judge.

John Joseph Chavez was convicted of manufacturing marijuana. Thereafter, the State forfeited his home. Chavez now argues that the forfeiture violated the double jeopardy clause, the excessive fines clause, and Washington's homestead exemption. Because the trial court did not determine whether the forfeiture is unconstitutionally excessive, we reverse and remand for further proceedings.

In September 1990, police officers discovered that Chavez was growing marijuana in his residence at 6717 100th Street S.W., Tacoma. On September 24, 1990, the State charged him with one count of manufacturing marijuana. On December 21, 1990, he was convicted.

Meanwhile, on November 13, 1990, the State filed a separate civil action in which it sought to forfeit Chavez' home. ¹ It did not allege that the home had been acquired with the proceeds of criminal activity.

On December 1, 1993, the State moved for summary judgment in the forfeiture case. At a hearing held on February 25, 1994, Chavez argued that forfeiture would constitute double jeopardy within the meaning of the Fifth Amendment to the United States Constitution and Article I, § 9 of the Washington Constitution; an excessive fine within the meaning of the Eighth Amendment and Austin v. United States; ² and a violation of his homestead rights under Washington Constitution Article XIX, section 1, and RCW 6.13.070(1). He asserted, in the course of arguing his excessive fines claim, that the trial court was required to conduct "a proportionality-type analysis." ³ Rejecting all his claims, the trial court granted an order of forfeiture without making a proportionality analysis. Chavez then filed this appeal.

I. DOUBLE JEOPARDY

Chavez argues that the order of forfeiture violates the federal and state double jeopardy clauses. The federal clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." ⁴ The state jeopardy clause guarantees that "[n]o person shall be ... twice put in jeopardy for the same offense." ⁵ We take the federal claim first.

A.

The United States Supreme Court recently discussed how the federal double jeopardy clause should be applied to the civil in rem forfeiture of a home used in the manufacture of a controlled substance. In United States v. Ursery, ⁶ a defendant was growing marijuana in his home. After he had been convicted criminally, the government obtained an order forfeiting the home. The defendant's appeal reached the United States Supreme Court, and that Court held that civil forfeiture is remedial for purposes of double jeopardy, except "where the 'clearest proof' indicates that an in rem civil forfeiture is 'so punitive either in purpose or effect' as to be equivalent to a criminal proceeding." ⁷ The Court concluded that the order forfeiting Ursery's home was not within the stated exception that the order was remedial rather than punitive; and thus that the order did not constitute double jeopardy.

Ursery supersedes State v. Clark ⁸ on the question of when a forfeiture constitutes punishment for purposes of double jeopardy. The Clark court was construing the federal double jeopardy clause--it expressly said it was not reaching the defendant's state constitutional claim ⁹--and it is axiomatic that the United States Supreme Court's construction of the federal clause is controlling.

Here, there is no evidence that would trigger Ursery 's exception. Hence, Chavez lacks a claim cognizable under the federal double jeopardy clause.

B.

According to the Washington Supreme Court, the state double jeopardy clause offers no more protection than the federal one. ¹⁰ Chavez lacks a claim under the federal clause for the reasons just stated. Hence, he also lacks a claim under the state clause.

II. EXCESSIVE FINES

Chavez argues that the trial court's order of forfeiture violates the Eighth Amendment's bar against excessive fines, as well as the parallel provision set forth in Article I, § 14, of the Washington Constitution. We do not consider the state claim, because Chavez has not provided a Gunwall analysis or any reason to believe that the Washington provision has a meaning different from the federal one.

The Eighth Amendment states, in pertinent part, that "[e]xcessive fines [shall not be] imposed, nor cruel and unusual punishments inflicted." It restricts "punishment," which can include civil in rem forfeitures. ¹¹

When deciding how the Eighth Amendment affects a particular civil in rem forfeiture, it is necessary to address two questions: (1) Does the forfeiture constitute punishment, and (2) if so, is that punishment excessive? ¹² The first question determines whether the Eighth Amendment applies; the second determines whether the Eighth Amendment is violated.

According to the United States Supreme Court, whether the Eighth Amendment applies is to be determined by a "categorical" as opposed to "case-specific" approach. ¹³ This appears to mean that whether forfeiture constitutes punishment depends on the purposes of the statutory provision under which the government seeks to forfeit. ¹⁴ If the statutory provision has any purpose not solely remedial, the forfeiture is punishment within the meaning of the Eighth Amendment. ¹⁵

The United States Supreme Court has not decided how to analyze whether a particular forfeiture is constitutionally excessive. ¹⁶ The Court had an opportunity to do that in Austin v. United States, but it said instead, "Prudence dictates that we allow the lower courts to consider that question in the first instance." ¹⁷

Writing a separate concurrence, Justice Scalia was not so reticent. He advocated the adoption of an "instrumentality" test that would focus exclusively on whether "the relationship of the property to the offense" was "close enough to render the property, under traditional standards, 'guilty' and hence forfeitable." ¹⁸ The majority responded by acknowledging "the possibility that the connection between the property and the offense may be relevant," but it declined to rule that other factors would necessarily be irrelevant. ¹⁹

On the very day Austin was decided, the Court hinted, in a different case, that constitutional excessiveness should be tested at least in part by examining the proportionality of the forfeiture to the crime. In Alexander v. United States, ²⁰ a case involving an in personam criminal forfeiture as opposed to an in rem civil forfeiture, the Court said that the propriety of a forfeiture must be considered "in the light of the extensive criminal activities which petitioner apparently conducted ... over a substantial period of time...." ²¹

Given Austin and Alexander, it is not surprising that the federal circuit courts have been moving toward a multi-factor excessiveness test that deals with both instrumentality and proportionality concerns. The Second and Ninth Circuits have expressly adopted such a test. ²² The Third and Sixth Circuits, though perhaps not adopting a specific test, have directed trial courts to address both instrumentality and proportionality concerns. ^{23 23} The Eighth Circuit, though not adopting a specific test, has expressed dissatisfaction with an instrumentality test devoid of proportionality considerations. ²⁴ The Eleventh Circuit has said that both instrumentality and proportionality concerns must be addressed. It has also said, however, that instrumentality concerns fall solely under the forfeiture statute, leaving proportionality as the sole issue under the Eighth Amendment. ²⁵ Only the Fourth Circuit applies an instrumentality test without more. ²⁶

In light of these cases, we hold that constitutional excessiveness is analyzed by examining instrumentality and proportionality factors. Instrumentality factors include, but are not limited to, the role the property played in the crime; the role and culpability of the property's owner; whether the offending property can readily be separated from innocent property; and whether the use of the property was planned or fortuitous. ²⁷ Proportionality factors include, but are not limited to, the nature and value of the property; the effect of forfeiture on the owner and innocent third parties; the extent of the owner's involvement in the crime; whether the owner's involvement was intentional, reckless or negligent; the gravity of the type of crime, as indicated by the maximum sentence; the duration and extent of the criminal enterprise, including in a drug case the street value of the illegal substances; and the effect of the crime on the community, including costs of prosecution. ²⁸

In this case, the State seeks forfeiture under RCW 69.50.505(a)(8). That statute allows forfeiture of real property on either of two grounds. First, it allows forfeiture of real property "used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance...." Second, it allows forfeiture of real property "acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation" ²⁹ of various drug laws. Here, the State seeks forfeiture only under the knowledge provision, ³⁰ and the Washington Supreme Court has held that forfeiture under the knowledge provision constitutes punishment within the meaning of the Eighth Amendment. ³¹ Thus, the Eighth Amendment applies here.

When Chavez was before the trial court, he expressly asked for a proportionality analysis. The...