Fell v. Armour

Jersey- Moreover, New may Law, corporation dissolution after Individually Joyce FELL, and on be- Billie tort of action cause similarly sued for persons sit- other half of all dissolution, and arising uated before registered on the served v. v. John agent corporation. Hould Commissioner, ARMOUR, Ten- Claude 282A. N.J.L. Squire Co.,& Safety, Department P. et al. nessee why no reason sees This Court Civ. A. No. 6367. of contract should for breach action Court, States District case A of dissolution. abate because Tennessee, D.M. point decided perhaps was closer Division. Nashville Dyo Judge Court, of this Hannum Nov. Corporation Turbo Machine therm (E.D.Pa.1969), Company, 48 F.R.D. 65, wherein appeal F.2d dismissed corporation’s plaintiff that the the fact the State voided charter had been nonpayment Jersey

New before six months more than

taxes complaint not filed, did divest

was jurisdiction.

Court of reg- upon the hold that the service We Enterpris- agent of Four States

istered July proper was es, on Inc.

valid service. alleged has also defendant dismissing ground com as a litiga County

plaint, that the Delaware judicata the claim of as to tion res all, the First plaintiffs herein. County

litigation was a in Delaware and was between

judgment on a note Corporation to Electric Credit General Enterprises, Inc. Four

the use of State herein, plaintiffs be not

and the Enterprises, Inc. and

tween Four States find that plaintiffs herein. We applicable judicata res

doctrine of hand.

to the case at

ORDER day De- now, wit, this 13th

An Mo-

cember, 1972, that the ordered Defendant, Four as to

tion to Dismiss denied, Inc., Enterprises, Defendants, as to to Dismiss

the Motion grant- Myers, is Ellis

Jack Scolnick

ed. ordered.

And it is so Geier, Legal Geier, M.

Paul Rita S. Inc., Nashville, Services Kurtz, C. Walter Tenn., Nashville, plaintiff. Cherry (resigned Charles W. 10/17/72), Atty. Gen., Asst. Bart Dur- ham, Atty. Pack, Gen., Asst. David M. Atty. Gen., Tennessee, State’s State Nashville, Tenn., for defendants. Judge, MILLER, Before Circuit Judge, GRAY, Chief District and MOR- TON, Judge. District ten-day period Judge. MORTON, a claim within the District proceed in Plaintiff was allowed to Act. brings class ac- suit as a tins Plaintiff hearing pauperis at before forma constitutionality challenging tion Safety Commissioner provisions the Tennessee various Drug bond, required post cost the $250 T.C.A. Control §§ condition under the statute is a which by incorporation 52-1448, and 52-1408— hearing. However, the precedent to the Plaintiff T.C.A. 52-1404—52-1407. §§ Safety refused to issue Commissioner of by 42 injunctive relief authorized seeks plaintiff. subpoenas At on behalf of pur- declaratory relief 1983 and U.S.C. § hearing, 52- T.C.A. this authorized § and 2202 and suant to 28 §§ U.S.C. 52-1407, (i) §§ 52-1404— Civil Rules of of the Federal Rule 57 representative of the Com- authorized Procedure. Safety the automo- missioner ordered on is conferred Jurisdiction plaintiff. bile returned to 1343(3) 28 U.S.C. § in federal Plaintiff filed this suit original jurisdic provide for on November the same court district courts tion in United States to, as, prior but autho- date U.S.C. § suits authorized Act, prior to rized return three-judge was convened This court of her vehicle. pursuant 2281 and 2284. to U.S.C. §§ temporary re- This Court issued a registered of a the owner Plaintiff is July tempo- straining 27, 1972, on order wagon. Opel about On or station rarily restraining enjoining defend- and August 7, 1971, marihuana was a sale of selling from vehicles which have ants wag- Opel plaintiff’s station made from pursuant been or will seized held be and Knox- officer on undercover to an by operation to 52- and T.C.A. §§ Department. Plaintiff as- Police ville 1404, 52-1406, 52-1443(a) (4) (B), 52- to the had vehicle that she loaned serts 52-1443(i), 52-1443(b) 1443(b), (4), 7, 1971, August and boyfriend her on 52-1444(a), pending and the decision knowledge sale that a had no she on the merits. her ve- from marihuana would be made by person. hicle a third to: this Court Plaintiff asks from the sale marihuana After injunction permanent en- (1) issue a plaintiff’s vehicle, Police the Knoxville Armour, Joe joining defendants Claude plaintiff’s Opel Department placed sta- Pack, Dunn, David Fowler, Winfield wagon to tion on a list of automobiles be acting in agents, others and all their for the Tennessee seized violation of oper- enforcing, from with them concert (hereinafter Drug Control Act Drug executing ating Tennessee the and Act”). applicable The sometimes “the 52-1443 T.C.A. Act of §§ Control provisions of set out 52-1443(b)(4), 52-1443(b), (a)(4)(B), opinion. Septem- Appendix On to this 52-1444(a), 52-1443(i), T.C.A. and and driving plaintiff ber while incorporated and 52-1406 52-1404 §§ wagon Opel her on Knoxville station against plaintiff oth- therein, and all as stopped street, policeman a Knoxville similarly situated; persons er plaintiff and her car. No formal seized (2) pursuant given plaintiff declare to to to 28 U.S.C. as §§ notice was procedure and seizure, 2202 and Rule 57 Feder- reason for the' might al re- Rules Procedure that the Ten- claim for the Civil which she file a peri- automobile, nessee cited herein are uncon- covery the time statutes her applied filed, stitutional and on their face must od in which claim be her plaintiff similarly situ- to and all penalty file others within for to failure they and ated in that violate the Fourth period Plaintiff time the Act. period to Consti- procedure Fourteenth Amendments and time learned of the States; tution filing recovery of the United for and filed a claim for damages (3) presented by monetary award constitutional issues urge plaintiff persons similarly complaint. all other Defendants and compensate inconven- to in order to serve “two situated for the Court important countervailing abstain expense ience caused interests: ei- to them premature conveyances pursuant ther the perhaps of a of their avoidance seizure yet unnecessary decision of a said in an amount de- seri- statutes damages punitive question, or ous federal constitutional termined and ($500.- of the hazard of unset- amount of Five Dollars avoidance Hundred tling 00) plaintiff of some delicate and each other balance relationships.” similarly situated; area of federal-state De- Brief, fendants’ Trial at 4. (4) plaintiff’s order the return vehi- unsettling persons not As to interest' of cle and vehicles all other sim- relationship, ilarly situated; delicate federal-state “that the defendants submit federal grant plaintiff and all other (a) if courts should abstain ac- State persons similarly situated addition- pending (b) tion is until the State just, proper al and further relief as given opportunity been courts have equitable. authoritatively construe statute following Plaintiff makes the chal- question.” Brief, Trial Defendants’ lenges to the Act: (a) statutory scheme violates the The Court holds doc Fourth and Fourteenth Amendments applied trine of not abstention should allowing seizure not warrantless in this case. conveyance. to an incident arrest of a “ ‘ Though . interpreted . . never (b) statutory scheme does not court, a state if state statute provide hearing prior for notice and subject fairly interpretation to an conveyances, seizure of and amounts to a modify which will avoid or federal deprivation property of without due duty constitutional question, is the process as forbidden the Fourteenth of a federal court to decide federal Amendment. question presented Any when to it. (c) statutory The scheme does not impose expense other would course meet Fourteenth Amendment minimal long delay upon litigants standards since it has no ” hope bearing without of its fruit.’ provision for notice the owner of Koota, 241, 251, Zwickler v. 389 U.S. seized, seized vehicle that it has been 391, 397, 88 S.Ct. 19 L.Ed.2d 444 seizure, reasons for the method to chal- (1967), quoting United States v. from lenge seizure, penalty and the Livingston, 9, F.Supp. 12, (E. 179 13 failure to file a claim ten within D.S.C.1959), 281, aff’d U.S. 364 80 S. days. 1611, (1960). Ct. 4 L.Ed.2d 1719 (d) statutory places scheme ambiguity “Where there is no proof burden of on the claimant in the statute, state the federal court should hearing before the Commissioner of proceed not abstain but should to decide Safety in violation of Due Process the federal constitutional claim.” Wis- Equal Protection Clauses Constantineau, consin 433, v. 400 U.S. Fourteenth Amendment. 439, 507, 511, 91 S.Ct. L.Ed.2d 27 515 (e) requirement cost (1971). bond statutory scheme Due violates the Proc- have Defendants informed the Court ess Equal Protection Clauses of pending of no case a state before court Fourteenth Amendment. presents which the same constitutional Defendants, presented Trial their Brief filed issues to this Court. Nor April 28, 1972, 2, 4, argue 3 and have defendants informed this Court deciding any should from pending abstain case before a state court

1325 desirable ob The Court finds it would the determination prior deciding necessity sei that a warrant obtained seri viate the authority conveyance presented to zure of a issues ous constitutional long-estab Hargrave, Act in See, furtherance Askew v. this Court.1 approval policy judicial 856, favoring lished 476, 91 28 L.Ed.2d 401 S.Ct. U.S. deprive Bozanich, state authorities citizens (1971); U.S. before v. 397 196 Reetz property. However, case law 82, 788, 68 25 L.Ed.2d 90 S.Ct. simply policy these considerations “[Ajbstention overwhelms be ordered cannot require dispenses opportunity give with warrant courts first pur property for ment in the seizure of Zwick federal claim.” vindicate the 251, poses of Koota, 88 forfeiture. While evidence supra, ler v. 389 U.S. and sei search v. Con seized unreasonable also S.Ct. at See Wisconsin Amend in violation of the Fourth stantineau, supra, 439, 91 S. zure 400 U.S. at into evi ment not be introduced Ct. 507. proceeding, a sei dence at the re all The Court finds that a warrant but based zure without (b)(2) 23(a) quirements of Rule probable cause believe Procedure Rules Federal Civil Act used has been violation plaintiff is a have met and that been under the not an seizure unreasonable representative proper class consist of a Dodge United Amendment. Fourth v. 191, persons ing had have of all those who 530, States, 71 L. 272 U.S. 47 S.Ct. conveyances them will owned have (1926); Ed. States v. 392 United authority pursuant seized Troiano, (3rd 1966), F.2d 365 416 Cir. Drug of 1971. Tennessee Control Act 396, 958, S.Ct. cert. denied 385 U.S. 87 (1966); Burge v. L.Ed.2d United 17 303 (9th 1965), States, WITH- SEIZURE OF CONVEYANCE 342 F.2d 408 Cir. 63, IN- A AND NOT OUT WARRANT denied 382 15 cert. U.S. S.Ct. (1965); AN CIDENT TO ARREST v. L.Ed.2d 72 United States $1,058.00 Currency, in United by plaintiff for The authorities cited 1963); (3rd Armada v. F.2d 211 Cir. proposition that warrant should be (5th States, United Cir. F.2d prior of a con- obtained veyance to the seizure 1963), cert. denied 84 S.Ct. alleged in violation use (1964); 11 L.Ed.2d 605 Sirimarco Drug Tennessee Control States, (10th F.2d 699 Cir. persuasive. particularly This is true 1963), cert. denied exigent emergency where no or situation (1963); 1696, 10 L.Ed.2d Interbar 1032 to the seizure circumstances exist. As States, supra; v. United tolo United ap- plaintiff’s automobile, it would (5th Carey, Cir. v. F.2d 492 States 272 pear emergency exi- that no situation or 1959); States, v. United Weathersbee gent would in circumstances existed that (4th 1958); Grogan 263 F.2d 324 Cir. v. practical require proba- sense that the (5th States, United 261 F.2d 86 Cir. ju- presented ble not cause to issue 944, 1958), 79 cert. denied 359 U.S. S.Ct. de- to dicial official. See discussion as (1959); 725, 3 L.Ed.2d United 677 sirability v. of warrant in Interbartolo Sedan, Tudor v. One 1956 Ford States States, (1st 1958); Cir. (4th United 303 F.2d 34 F.2d 725 Welsh v. 253 Cir. States, 93, U.S.App.D.C. 1962). 220 United 95 style 1. do state in that or Defendants their brief answer brief state important fact The Court has not discovered consideration is the case. “[a]n Appeals involving in the that a stat case Tennessee Court case the Tennessee pending Supreme the out Tennessee Court ute is Tennessee now before the necessity Appeals.” obviate Trial come of which would Defendants’ deciding Brief, However, the constitutional at 4. do not of this Court’s defendants case, presented in this case. are in this issues what issues raised anywhere do defendants in their nor 1326 (1955); 67, 1983, v. 407 92 32 L.Ed.2d

F.2d 200 States, Sanders United U.S. S.Ct. 1953); (5th 201 F.2d 158 Cir. 556

Victoria, 1969). John States, Ill.1961); Rogers, United States States Oldsmobile D.Ark.1955); One 1968), mod. States, 1953). But see Boxes 897, 794 United States v. One Bourke Coupe F.2d 896 183 Ford S. States, ic Harman v. (1st (4th Strong (2d (6th 691, Finance Cir. Bally “Barrel-O-Fun”, Cir. (M.D.Pa.1963), (W.D.Mo.1966); Cir. Cir. Bacall Containing Currency, de Ville Coupe 340 F.2d 168 52 53 F.2d 187 v. v. United 337 F.2d 857 1940); United 1931), 1952); (2d S.Ct. 1930), United United States Sedan, United Corporation, 412 F.2d 586 Imports, F.Supp. United States One Cir. F.Supp. Automobiles 27, v. appeal Two-Door, United cert. denied 282 75 Berkowitz Various 1939); $4,171.00 States, 46 76 L.Ed. 583 States, 44 States, (1st aff’d. Brozzetti L.Ed. 790 F.Supp. (5th United States (3rd dismissed F.Supp. Ltd. States States Cir. 1963 110 F.2d v. One 1953 Two Certain Articles, 199 F.2d 250 224 v. Cir. Cir. (N.D.Calif. v. United (C.D.Calif. v. 1965) (9th 28 F.2d F.2d 257 v. v. Cadillac F.Supp. F.Supp. (1930) ; (1931); United United United 1964); 284 U. 1931); Pacif Eight (N.D. Ford Cir. (W. 371 105 732 34 v. v. bitrary cles process under the Fourteenth Amend fore an zure of forfeited provide law prior believes those 92 izen however, U.S. session, notice and a quired. However, heard ing feiture statutes is to be included gation situations. The ease law ing. tunity Fuentes v. dinary Ed.2d eral entitlement, S.Ct. is to notice and are not legal history principle prior 371], seizure Boddie fair and prior extraordinary not insulated from ^[113] to on situations’ that seizures it to be notice impartial These resist to Shevin, supra, must be at governmental to seizure. While the Court deprived contrary. v. at 119. These deprivation 379, that due even opportunity meaningful hearing Connecticut, undesirable that cases goods pursuant property by prior 32 L.Ed.2d at of forfeiture indicates “[t]here [91 judicial officer, opportunity meaningful oppor deprivation stand for the temporary dispos truly S.Ct. process requires Owners justify postpon authorities potentially rights places governing of an truly notice are for a hear supra, 780] 28 situations, unusual.” ‘extraor of vehi unusual interest no obli the cit of due among and a gen [401 for sei be ar re L. provi ment absence ofAct SEIZURE WITHOUT PRIOR NOTICE hearing prior sions for notice and to sei AND HEARING Act, interpreted zure. The historically pecu- Were Court, provides for forfeiture use liar nature law relevant forfei- property in violation the Act.2 strongly in- tures, the Court would be illegal Upon the use the state is entitled apply holdings clined ration- possession immediate Supreme ale of recent property rights owner process Court due cases to notice and as though immediately divested, the seizure hearing prior to seizure. See Sniadach physical deprivation may not occur Family 337, Corp., v. Finance 395 U.S. consistently until later. have courts 1820, (1969); 89 23 L.Ed.2d 349 recognized S.Ct. may provide that statutes for Goldberg Kelly, 254, v. 397 illegal U.S. 90 upon immediate S.Ct. forfeiture use 1011, (1970); 25 L.Ed.2d property. 287 g. v. Bell of e. See United States v. Burson, 535, 1586, 402 Stowell, 244, 91 29 S.Ct. 133 U.S. 33 L. Mills, (1971); Shevin, L.Ed.2d 90 (1890); Fuentes v. Ed. 555 States United v. explained subsequently As will provision pro- be is conditioned of topic Seizure”, process requirements “Due After Process cedural due subse- property upon illegal quent forfeiture property. of its use to seizure of the

1327 gov- Upon the doctrine of relation back. (6th 1971), cert. de Cir. 647 F.2d 440 property proving use of vi- ernment’s L. 30 S.Ct. 92 nied statute, di- olation of a forfeiture v. One (1971); States United 70 Ed.2d rights property relates back of vestiture Fiber Glass Foot 27 Chris-Craft 1967 property point 1970); when to the in time (5th Cir. Boat, F.2d 1293 423 unlawfully v. United Bank used. States v. and Growers Dealers Florida (5th Stowell, supra; Florida Dealers Cir. States, 673 F.2d 279 United States, supra. States, Bank United Growers v. 1960); United v. Weathersbee States, supra; Grogan supra; v. United Drug Act of Control The Tennessee supra; States, United v. United Harman appears so to have been drawn 1971 Corporation, Pacific Finance v. opportunities States supra; for notice to minimize the $4,171.00 in v. United States only opportunities to heard. The supra; Currency, United States notice, United provision it can if indeed for Victoria Model Ford One 1954 v. States notice, is in T.C. contained classified as (E.D.N.C. Automobile, F.Supp. 809 135 52-1404, follows: A. which reads as § 1953 Olds 1955); v. One States United Procedure in “52-1404. confisca- v. Sedan, supra; United mobile drug tion all cases and vehicle.—In of Victoria, supra; De Ford 1952 One drugs any of of narcotic or seizure F.Supp. States, Bonis, 123 103 v. United any vehicle, marihuana or aircraft (W.D.Pa.1952). property subject for- boat other provisions pri feiture under the of this dealt cases the above While chapter, rights officer or other marily to remission with making proceed as challenges Fourth seizure shall under the to seizures equal Amendment, follows: rationale the same deprivation alleged of ly applicable to per- shall “First: He deliver to process under the property due without son, any, possession if found in Amendment. Fourteenth receipt, property, showing

general description of the seized goods. receipt copy of said shall be A SEIZURE AFTER DUE PROCESS department filed in the office property, After seizure open pub- safety and shall be procedure must accord inspection.” lic for process. v. Bu Menkarell See with due Cir., (3rd Narcotics, provision provide F.2d 88 This does not for 463 reau Edwards, 1972); v. the fact of United States the disclosure of seizure 1966); (4th possession v. Jaekel the time Cir. an owner not F.2d (S.D.N. States, F.Supp. provision pro- seizure, nor does this Y.1969); procedure v. One United States vide for disclosure Two-Door, supra, any Coupe challenging de the seizure to own- Ville Cadillac F.Supp. 186; People of State ers seized vehicles. Mich.App. 433, Michigan Campbell, “The concedes that alle- pre- State 198 N.W.2d 7 gation inadequacy of notice might impression question At first sents a serious since appear provide divestiture do not Tennessee statutes rights immediately upon post-seizure use violation notice to a owner [sic] of a forfeiture with act inconsistent a seized vehicle. is not owner procedural requirements agency told to ob- the state to contact hearing subsequent ap- for tain of notice and his vehicle nor owner However, prised procedures immedi feiture and seizure. procedural proc seeking in ate divestiture and due T.C.A. to 52-1404 recover Nevertheless, requirements subsequent his in to vehicle. ess seizure State by application its can be reconciled answer the sei- has averred that 1328 requisites process

zure itself to or to is notice the owner mental of due —the person possession right right in vehi- to heard. ‘This be Brief, reality cle.” Trial at Defendants’ 13. has little or worth unless one is informed that the matter provisions as to notice are pending and can for choose himself clearly comport inadequate and do not appear default, whether to ac- process requirements with due quiesce or contest.’ 339 314 U.S. at Fourteenth Amendment. 652, 94 [70 865].” S.Ct. Schroe- L.Ed. rights “Parties whose are to be af supra, York, v. at der New 371 U.S. heard; to and fected are entitled be 212, 83 at S.Ct. 282. they may enjoy in order that As to the form of to notice which right they must notified.” Fuentes be entitled, owner of a seized vehicle is Shevin, supra, 80, v. 407 at 92 S. U.S. appear by publication would that notice 1994, Ct. at 32 L.Ed.2d at 569. generally constitutionally would inad- right hearing meaning- “The to a equate. less without notice.” v. Hutch- Walker general emerges “The rule that inson, 112, 115, 200, 352 U.S. 77 S.Ct. from the Mullane Case is that notice 202, (1956). 1 L.Ed.2d 178 by publication enough is not with re required “Notice is before spect to a whose name ad disturbed, interests are before assess- easily very dress are known or ascer made, penalties ments are before are legally protected tainable whose required assessed. Notice directly interests proceedings affected myriad penalty where a situations question.” Schroeder might be suffered York, supra, 212, 213, v. New at 83 S. mere failure to act.” v. Lambert atCt. 282. California, 225, 228, 355 78 U.S. S.Ct. every “Indeed case of the seizure 240, 243, (1957), 2 L.Ed.2d mod. 228 registered of a motor vehicle the name rehearing denied, 937, 355 U.S. 78 registered and address of the owner is 410, S.Ct. 2 L.Ed.2d 419 readily available from the motor vehi- elementary “An and fundamental registration cle In authorities. these requirement process due necessity circumstances no reasons proceeding which is to fi be accorded compel by publica- the resort notice nality reasonably calculated, is notice likely tion in lieu of notice more to be circumstances, apprise under all the effective.” Menkarell v. Bureau of parties pendency interested Narcotics, supra, F.2d at 463 oppor the action and them afford Therefore, process due would tunity present objections.” their appear require in most instances that Mullane v. Central Hanover Bank & pursuant owners vehicles seized Co., 306, 314, Trust 339 U.S. 70 S.Ct. timely adequate afforded 652, 657, (1950); 94 L.Ed. personal notice. York, 208, Schroeder v. New 211, post L.Ed.2d 255 office “Where names (1962); Armstrong Manzo, pro- addresses of those affected 545, 550, U.S. ceeding hand, S.Ct. 14 L.Ed. are at the reasons dis- (1965); Family 2d 62 appear likely Sniadach v. resort to less means Corp., supra, Finance apprise 395 U.S. at than the them of its mails 1820; pendency.” S.Ct. Jaekel v. United Mullane v. Central Hano- supra, States, F.Supp. Co., supra, at 999. ver Bank and Trust 659; U.S. 70 S.Ct. at Schroe- emphasized “As Mullane, York, supra, der v. New 371 requirement parties be notified 213, 83 S.Ct. 279. proceedings affecting legally their protected obviously notice, interests is a vital As to the contents of the corollary one the most funda- more than mere demands that

1329 showing general description “receipt, requisites hearing dural for a the can vary, goods” provided depending importance the be the the seized contents the The interests involved the na- owner a seized vehicle. subsequent proceedings.” as ture of of the notice must such to insure the 371, Connecticut, of the seized vehicle be Boddie v. owner 378, constitutionally required 780, 786, 91 S.Ct. 28 afforded meaningful L.Ed.2d 113 (1971). opportunity to be heard. As seek- the notice must afford owner proceeding quasi- “[A] is ing recovery opportuni- an his vehicle object, criminal in character. Its like present ty objections to the forfei- his proceeding, penalize a criminal is to necessarily ture, the notice must for against commission an offense pro- reasons for and the seizure Plymouth the law.” One 1958 recovery may seek cedure which he Pennsylvania, Sedan v. Com. 380 vehicle, including period in his the time 693, 700, 1246, U.S. 1250, 85 S.Ct. 14 present he his claim re- which must also, L.Ed.2d 170 See covery, penalty and the for failure to States v. One 1961 Red Chevrolet Im- period. within file the time pala Sedan, (5th F.2d 457 1353 Cir. procedure 1972); Compton The which an States, v. United 377 (8th a seek 1967); owner of seized vehicle its F.2d 408 Cir. and Su- recovery practicable States, should to the extent homlin F.Supp. v. United designed op (D.Md.1972). maximize notice portunity The to be heard. State has an great importance The of one’s interest obligation good to make faith effort to in present-day an automobile under con- give constitutionally required notice apparent. automobile, júst ditions is An personally to of a vehi the owner seized license, may as a driver’s be essential to supra, York, Schroeder v. at cle. New livelihood, pursuit of a Bell v. cf. 213, 214, 83 S.Ct. 279. Burson, supra, 539, U.S. at 91 S.Ct. 1586, 29 L.Ed.2d 90. AT HEARING—BUR- DUE PROCESS primary presented question DEN PROOF OF initially whether the must State bear proving Plaintiff further contends that burden of that the seized ve- statutory places scheme of hicle burden was used in violation of the Act at proof hearing quasi-criminal proceeding on the claimant be- before the Safety Safety. fore the Commissioner vio- Commissioner of Equal lation Process Due provides following The Act to as Protection Clauses of the Fourteenth proof proceeding burden of to re- Amendment. cover the seized vehicle. ed: quired by this ingful at a “What the Constitution does As to the nature, ‘an meaningful opportunity manner,’ procedural requisites Supreme Armstrong time and . Court has stat- . hearing . granted require Manzo, mean re- hereinabove tion vehicle, sioner ^[*] “52-1404. Procedure in confisca- “Whenever in chapter, drug shall not allow the claim *X* aircraft and vehicle. a claim filed for provided, ^[*] any proceeding or boat ^{[*] [*]} seized, commis- ^[*] as unless until claimant (1965) (emphasis L.Ed.2d proves: (1) add he has interest ed), appropriate ‘for vehicle, boat, [a] or own- aircraft case,’ nature otherwise, Mullane v. acquired er or he Co., supra good faith; Central Hanover Tr. [339 that he at no had U.S.], 657], any knowledge 94 L. [70 S.Ct. time reason be- formality Ed. at proce- being 873. lieve that it was would be 1330 upon proof him of to re- laws of the The burden is in the violation of used presumption. or of Ten- but the of the state United States drugs relating or nessee narcotic “(c) liability imposed by No §§ marihuana; appears (3) if it upon any 52-1408—52-1448 autho- by the the interest asserted that state, municipal county rized or offi- any is in out of or claimant arises engaged perform- cer, lawful agree- any way subject to or contract ance of his duties.” having person any ment under which places no of burden violating reputation or a record proof State, whatever the but any or of of the United laws States proof upon places the burden of the drugs relating or to narcotic state seeking recovery of his owner vehicle as respect right a has with marihuana provided any exception exemption or boat, vehicle, that be- aircraft or concedes the Act. The State that at acquired inter- claimant his fore such of before the Commissioner the person est, acquired his or such other Safety proving has the of a it burden agree- right or under such contract preponderance of that the vehi evidence later, ment, the whichever occurred cle was used in violation of Act. in- claimant, agent, office his or supply However, must the statute itself inquiry formed, answer his in process requirements. While sheriff, headquarters chief statutory may language interpret Court principal police, narcotics of federal process, to conform it so as to due engaged of in enforcement officer language a statute so not insert into laws, principal narcotics or other the. Cong Yu to render constitutional. offi- or federal law local enforcement Eng 500, Trinidad, 46 v. 271 U.S. S.Ct. locality such other in which cer (1926); 619, L.Ed. Howard v. 70 1059 person right acquired under such his Co., 463, 28 Illinois C. U.S. S.Ct. 207 R. locality agreement, or of contract 141, (1908); L.Ed. 297 person then resid- in such other which Steffens, 82, 25 L.Ed. 550 v. U.S. locality ed, and of each (1879). inquiry any made has other claimant power “It coui’sewithin stand- as to character or financial regulate procedures under the State to person, ing other that such of such out, includ which its laws carried person or had no such record other producing ing evidence burden of reputation.” persuasion, ‘unless burden Evidence, burden “52-1444. doing principle some in so it offends proof Immunity liability, law from — justice traditions so rooted in the performance enforcement officers people as to of our and conscience necessary (a) It is not of duties. — the Snyder v. as fundamental.’ ranked Massachusetts, negate exemption any or 97, 105, S. exception 52-1408—52-1448 §§ 677, 78 L.Ed. A.L.R. Ct. information, any complaint, indict- legislature may course ‘[O]f trial, pleading ment or other or in raising good go way in a hearing, proceeding under or other §§ of changing [presumptions] or burden 52-1408—52-1448. The proof, are limits there but burden proof any exemption exception is or ’ ” Speiser Randall, claiming person .

upon the it. 1332, 1340, 513, proof “(b) In that the absence of L.Ed.2d 1460 duly holder is the authorized experienced lawyers it is registration com- appropriate order “To monplace of a law- outcome form issued 52-1408—52- §§ of le- vindication presumed hence suit—and he rights depends often gal more on registration or form. holder — appraises Therefore, holds facts the factfinder how may deny disputed before the own of a the State construction than on recovery interpretation er a claim for of his vehicle line statute pursuant authority procedures by precedents. seized Thus prove prepon Act, deter- must a of the case are State facts importance fully derance of the that the vehicle as evidence mined assume an great validity used in of the Act. While was violation as the of the substan- it applied. And the has this State concedes bur to tive rule law proof preponderance rights important den evidence, a more at stake reasonably capa proce- the Act is not important more must be the interpretation. safeguards surrounding those of such ble dural 521, at rights.” 520, Id., at 78 S.Ct. contends that has Plaintiff the State 1339. beyond proving a reason the burden doubt that the vehicle used in Supreme that one able has held Act, citing is 1958 penalty crime violation One for a to suffer a who is Pennsylvania, safeguards Plymouth greater procedural Sedan v. Com. of to entitled sup party merely civil read a to a The Court does not than who is one ra. Plymouth purely for Discussing civil 1958 Sedan actions One v. Com. suit. proceed- Pennsylvania, supra, vis-a-vis or other au of taxes the collection crime, thority ings impose penalty imposing upon for a such a burden to a government proceed Supreme in forfeiture Court stated: States, ings. Compton See v. United practice in is, course, familiar “It 411; supra, 377 F.2d at Lin One 1961 program of a tax administration States, United coln Continental Sedan v. carry taxpayer to the burden for the (8th 1966). 360 F.2d 467 Cir. introducing to rebut evidence Phil of the collector. determination However, no the Court finds Co., 284 lips & S. D. Dime Trust v. objections placing to constitutional 160, L.Ed. 167, 46, 76 52 S.Ct. prove U.S. to he burden the owner Helvering, 224; 291 U. 220, Brown v. recovery to is the vehicle entitled 725, 356, 193, 199, L.Ed. 78 54 S.Ct. any exemption exception S. virtue plac the fairness But while 730. Act, provided Under 52-1444. § taxpay proof ing on the the burden of law, current no constitu recog is in most circumstances er objections forfeiture exist tional has not nized, this Court hesitated used in vio of a vehicle once has been pro summary tax-collection a declare statute, regardless a lation of process when of due a violation cedure knowledge innocence of the of lack of purported to be tax was shown See, g., Goldsmith, Jr.-Grant owner. e. Lipke penalty crime. reality for a a States, 505, v. United 41 254 U.S. S. Co. 549, 557, Lederer, 42 S.Ct. v. 259 U.S. (1921); Mc 189, 65 L.Ed. 376 Ct. Helwig 1061; cf. v. United L.Ed. 66 States, 739, v. 438 F.2d Keehan United 427, 605, 47 States, 23 188 S.Ct. U.S. 1971); (6th v. Cir. United States 742 underlying rationale L.Ed. 614. The Coupe Eldorado, 415 1967 Cadillac One where a eases is that of these (9th 1969); United 647 Cir. States F.2d ishe penalty for a crime to suffer a (6th Cadillac, F.2d 1961 337 730 One v. greater procedural safe entitled Bride, 1964); v. 308 United States Cir. only guards the amount when than (9th 1962); United States F.2d 470 Cir. Id., liability in issue.” tax his Coupe, F.2d 421 298 1958 Pontiac v. One 525, 524, 78 S.Ct. 1962); (7th States v. One Cir. United Automobile, F.2d 256 Oldsmobile 1957 reasoning applicable pro- This (5th 1958); v. United States Cir. 931 ceedings question, Thunderbird, 232 F. 1962 Ford One being penalty forfeiture of a vehicle (N.D.Ill.1964); United Supp. 1019 crime. 1332 requires Sedan, F. ment. T.C.A. 52-1404 1962 Ford 228 § v. One States post (M.D.Fla.1964); Supp. owner of seized cost United Convertible, to file a claim 137 bond order 1955 Ford $250 v. One States recovery thereby (E.D.Pa.1956); of his vehicle F.Supp. United hearing Sedan, 118 F. obtain a before Commission- States v. One Oldsmobile Safety. contends that Supp. (E.D.La.1954). also Van Plaintiff er See monetary requirement unconstitu- Kansas, Oster v. effectively precludes tionally (1926); indi- States United L.Ed. gents having supra, Corporation, from access Pacific Finance procedure. 733; Plaintiff cites Boddie v. v. One 110 F.2d at Connecticut, Coupe, 115 F. S.Ct. 1948 Cadillac Convertible (1971); Harper (D.N.J.1953). Vir- Supp. 28 L.Ed.2d 113 v. But see United 723 Elections, 663, Truck, ginia F. Board of 383 U.S. Ford 346 v. One 1971 States (1966); 1079, Supp. (C.D.Calif.1972); 86 16 169 Suhomlin S.Ct. L.Ed.2d 613 Illinois, 12, States, supra; in 76 dictum and v. 351 U.S. and Griffin

v. United (1956) 585, for her L.Ed. v. Coin and S.Ct. United States 721, “op- 720, Currency, supra, cost contention that the bond $250 atU.S. particular party’s a erates to foreclose 28 L.Ed.2d 434. S.Ct. opportunity in violation of to be heard” weight Thus, of au under the Equal the Due Process and Protection exemption thority, exception or al of the Fourteenth Amendment. Clauses grace recovery lowing on is matter a part constitu anyone of the and not provides State that T.C.A. 52-1404 § required by tionally Process the Due present for recov- wishes to a claim who Amendment. Fourteenth ery Clause so of a seized vehicle must do within by filing (10) days a ten of seizure assuming But the forfei with written claim the Commissioner conveyances owners of innocent ture of Nashville, Safety posting in and deprivation property amounts to a question. in The relevant bond $250 process, without constitutional portion Act reads: 52-1404 of the § exceptions exemptions provides may re whereby innocent owners such Any person claiming any “Third: conveyances. The Court cover their property so as contraband seized byAct, placing not does feel goods, may days (10) from within ten upon proof claimant-own burden of seizure, any time the date of at before exception exemption or er as to an based pro- disposition the sale or as herein innocence, knowledge of lack of vided, file with the commissioner at justice principle root so fends “some writing, request- in a claim Nashville conscience in the traditions and ed hearing stating ing a his interest people our ranked fundamen as as Any the articles seized. tal,” supra, Speiser Randall, v. 357 U.S. shall file his claim claimant with also also fur at S.Ct. at 1341. See good a or more cost bond with one shifting as to of burden ther discussion in the sum of two solvent sureties going with the evidence forward fifty ($250), hundred dollars said Randall, supra, Speiser S. v. at being payable to the state bond made 1332, 2 Ct. L.Ed.2d of Tennessee.” provision Act contains no author- The EQUAL PRO- DUE PROCESS AND izing procedure pau- be in forma BOND TECTION-COST indigents peris unable to for those bear Thus, Plaintiff further contends that cost of the cost bond. $250 proceed plaintiff requirement cost bond of the Act vio- allowed State grace Equal pauperis lates the Protec- as matter of Due Process and forma a statutory right. tion Clauses of the Fourteenth Amend- not as matter hearing whereby recovery con he that this issue is seek Court feels Connecticut, supra, penal of his vehicle and avoid harsh Boddie trolled ty Supreme of forfeiture. Those owners of seized Court stated: wherein vehicles who cannot afford the cost bond generally valid notice “Just rights recovery have their to seek satisfy due may fail procedure thereby pen vehicle and avoid the harsh process circumstances because alty extinguished by of forfeiture their defendant, re- so too a cost personal poverty. indigent As to these face, may of- quirement, valid on its owners, effect of the cost bond $250 operates process because fend due grant seizing requirement is to party’s oppor- particular to foreclose police right to ex officer effective tunity obli- heard. State’s tinguish all interests. As to gations Amend- Fourteenth poor hearing, those too to afford a ones; generalized simply ment power only raw exercise of can lead to individ- rather, owes each the State arbitrary state action that no neutral light which, ual that judicial officer or official will society, be charac- can of a free values opportunity to have the review the evi v. Connecti- Boddie terized as due.” propriety dence and determine the cut, supra, recovery. claim the for 787. indigent Thus, may de owner be Supreme ruled In Court Boddie the prived process due without process to of law a denies due that may deprivation lawof in that the occur refusing permit indigent by persons to any process to without whatsoever. As bring unless actions them divorce to indigent pro owner the does approxi- they paid court costs first “ requisite ‘protection vide the in process mately costs and service $60 against arbitrary dividual action’ which ranging The situation from to $50. $15 Mr. Justice Cardozo characterized as indigent plaintiffs in Boddie very process.” essence of due Slochower indigent very to similar the situation York, v. Board of Education New 350 Act. seized vehicles under owners of 641, 551, 559, 637, L. U.S. 76 100 S.Ct. plight of the court found In Boddie (1956), quoting 692 Ed. Ohio Bell from plaintiff to be Com., Tel. Co. v. U. Public Utilities 301 “ defendants . akin to that of . . 292, 724, 302, 57 L.Ed. 1093 S. S.Ct. 81 only fo- faced with exclusion from empowered effectively to settle rum opportuni- “For when a an has judicial disputes. their Resort to up ty speak defense, to in his own process plaintiffs more is no these when the must to he State listen what voluntary in than realistic sense a say, substantively has to unfair and upon to called that of the defendant simply deprivations prop- mistaken For both his interests court. defend erty prevented. interests can It only process para- groups is not this recognized long has been that ‘fair- technique, dispute-settlement mount rarely secret, ness can be obtained only but, fact, one. available one-sided determination of facts deci- ap- posture think that this In we ” rights . v. sive . .’ Fuentes . light peal properly be resolved to Shevin, supra, 81, at S.Ct. principles our enunciated 1994, at at 32 L.Ed.2d 570. rights process that delimit decisions compelled litigate to of defendants right meaningful opportu- “[T]he judicial fo- their differences nity to be heard within the limits 376, 377, 785. at rum.” Id. at protected against practicality, must be by particular operate denial laws Act allows cost bond $250 n particular jeopardize individ- it for sufficiently to obtain a affluent one Connecticut, supra, Boddie uals.” Plaintiff’s contentions would be persuasive if the Act itself forbade U.S. at S.Ct. subpoenaing of witnesses for those indi presented has counter- State no gent post owners unable to cost $250 vailing justifications interests or suffi- However, Act, 52-1404, ex bond. § cient to of indi- override interests pressly provides that gent having owners access to the sole parties proceed- process by “. . . may to the [a] which the owners ing, including person claiming present recovery their claims right property, such shall have vehicle. no inter- The Court finds State subpoena have issued the commis- ests sufficient to override access to this compel procedure. argument sioner to the attendance of all An the cost parties deemed bond deter witnesses frivolous claims argument necessary complete recoupment full and cost would have hearing.” been insufficient. Boddie v. Con- See necticut, supra, parties proceeding, all neces- Thus S.Ct. 780. sarily indigent including owners unable granted post to ing, but a hear- cost bond Therefore, the holds that statutory right to have have the cost bond denies due $250 necessary full those witnesses for a law under the Fourteenth Amendment to complete subpoenaed for indigent financially owners un who hearing. plaintiff subpoe- If was denied post able to the cost stat bond thus power, misap- appear na it would to be a utorily prohibited asserting from plication of the statute. recovery claim for of the seized vehicle. The Court will not declare as Plaintiff further asserts that due unconstitutional a statute constitutional inability post her cost bond $250 by unconstitutionally yet mis its terms right subpoena she was denied the to applied. of a Maladministration law hearing witnesses her behalf at the does not uneonstitütional. make the law representative before of the Com- Cummings v. Bank of Merchants’ Nat. Safety. plaintiff missioner of While Toledo, 153, 161, L.Ed. 903 by was allowed the Commissioner of (1880); Ellingson, F.Supp. Kortz v. Safety pau- to file her claim in forma (D.Colo.1960). peris posting without cost $250 hereby Therefore, bond, right Court she was denied the to have deny holds Act indi any that the does not to subpoenas. subpoenas issued If no gent subpoena power and does owners issued, were then owner of a seized indigent any rights deny not to owners present vehicle to his be unable process protection equal to un due and complete and full hear- case ing. obtain a and der the Fourteenth Amendment. Further, an who is denied owner subpoenas requested adequate has no summary, fol- In holds as Court remedy process appeal authorized lows: by review T.C.A. 52-1405 since the § (1) Drug Act The Tennessee Control conducted Circuit of Da- the Fourth and 1971 does not violate County pleadings only vidson on of the Fourteenth Amendments transcripts hearing and before by providing Constitution Safety, no other Commissioner conveyance warrantless of a not seizure being Plaintiff evidence allowed. incident to an arrest. argues alleged policy pro- that this (2) deprive owners The Act does not cedure denies to those claimant-owners process property post without due cost bond their unable the $250 process protection equal under the Fourteenth Amendment providing guaranteed not prior for notice law the Fourteenth conveyances. to seizure Amendment. provide APPENDIX to own- (3) The Act fails conveyances notice subse- of seized ers THE CONTROL TENNESSEE DRUG comport sufficient quent to seizure OF 1971 ACT requirements Due Proc- with the T.C.A. 52-1408—52-1448 §§ Amend- of the Fourteenth ess Clause pertinent part] [in ment. subject 52-1443. Goods placing no (4) burden Act The —Seizure—Disposition.—(a) fol- prove that the seized the State lowing subject are to forfeiture: conveyance used in violation (1) all controlled substances which convey- deprives of seized owners manufactured, distributed, been have rights process under to due ances their dispensed, acquired or in violation of §§ Amendment. the Fourteenth 52-1448; 52-1408— by imposing cost (5) a $250 The Act (2) products materials, all raw precedent as a condition bond used, equipment any kind which are hearing before the Commissioner manufacturing, use, or intended for indigent rights Safety violates compounding, processing, delivering, im- Four- under the to due owners any porting, exporting or controlled sub- Amendment. teenth stance 1448; violation of 52-1408—52- §§ no constitution- thus contains The Act whereby procedure ally notice sufficient (3) property used, all in- or meaningful opportunity to heard use, prop- tended for container for convey- of seized owners are afforded erty paragraphs (1) (2); described in or conveyances The seized ances. (4) including conveyances, all air- per return to se and their contraband craft, vehicles, vessels, which are any pub- not frustrate owners would used, use, transport, or intended for against possession policy lic or in manner to facilitate the trans- Plymouth objects. Sedan One 1958 See portation, purpose for the of sale or re- Pennsylvania, supra, at 698- ceipt paragraph described 14 L.Ed.2d 170. (1) (2), but: (A) conveyance by any per- no used shall, parties ten within son as a common carrier in the trans- opin days entry of this from the action of business as common car- provide that con ion, submit an order subject rier is forfeiture under this possession veyances of de in still appears section unless it that the own- owners. to the returned fendants be charge er or other of the provide no further The order shall conveyance consenting party is a or may for conveyances seized hereafter 52-1408— n privy to a violation §§ authority Ten under the feited 52-1448; Drug ofAct 1971. nessee Control (B) conveyance subject no is for- in no evidence introduced Plaintiff by feiture under this section reason of acting were or act omission dicate that defendants established they owner thereof to have been committed good rea a under statute faith knowledge omitted or or without his Therefore, sonably valid. to be believed consent; any mone for not liable are defendants damages tary under 42 U.S.C. § (C) conveyance subject a is not Ray, 87 S. See Pierson forfeiture for a violation of 52- § 1432(b); L.Ed.2d 288 Ct. charged (D) attorneys’ to de- conveyance fees are forfeiture No security encumbered a bona fide fendants. subject representative, agent, interest interest authorized ployee, em- party sheriff, sheriff, deputy the secured if he had or a neither mu- knowledge nicipal officer, act nor consented to the law enforcement or con- subject only or omission. stable to the orders and de- crees of or court. the circuit criminal (5) books, records, all and research property When is seized under 52- §§ products materials, including formu- 52-1448, seizing authority las, microfilm, 1408— tapes, are and data which may: used, use, or in violation intended (1) place seal; property 52-1408—52-1448. §§ (b) Property subject (2) property place un- remove the to a may designated him; der 52-1408—-52-1448 be seized or §§ safety the commissioner of or au- his (3) require commissioner of safe- representative, agent, thorized or em- ty representative, or his authorized ployee, sheriff, deputy sheriff, mu- or agent, employee, sheriff, deputy or aor nicipal officer, law or con- enforcement sheriff, municipal law enforcement offi- by any upon stable issued circuit cer, custody or constable to take having jurisdiction or criminal court property appropri- and remove it to an property. over without Seizure disposition ate location for in accordance process may if be made : with law. (1) the seizure incident to an ar- (e) property When is forfeited under rest or a search under a search warrant 52-1448, the commissioner §§ 52-1408-— inspection or an under an administrative safety representa- or his authorized inspection warrant; agent, tive, employee, sheriff, or or a (2) property subject deputy sheriff, municipal to seizure enforce- law subject officer, prior judgment has been the ment or of a constable shall remove disposition in favor of the state in a in- criminal accordance with law. junction proceeding or forfeiture based (f) Controlled substances listed 52-1448; §§ possessed, 52-1408— schedule I that are trans- sold, ferred, or offered for sale in viola- (3) safety the commissioner of his or tion are contra- 52-1408—52-1448 §§ agent, representative, authorized or em- summarily band and shall be seized ployee, sheriff, deputy sheriff, or a mu- forfeited to state. sub- Controlled nicipal officer, law enforcement con- or I, stances listed schedule which are probable stable has cause to believe possession seized or come into the directly indirectly state, unknown, the owners of which dangerous safety; to health or summarily are contraband and shall be safety the commissioner of or his forfeited to the state. agent, authorized representative, or em- (g) Species plants from which con- ployee, sheriff, sheriff, deputy or a mu- I, II, trolled in schedules substances nicipal officer, law enforcement or con- VI be derived which have been probable stable has cause to believe that planted or in cultivated of violation §§ property was used is or intended 52-1448, or of which the own- 52-1408— in be used violation of 52-1408—52- §§ unknown, ers or cultivators are or which growths, may are wild be seized and (c) pursuant In the event of seizure summarily forfeited to the state. (b), proceedings to subsection under (h) failure, upon by demand (d) subsection shall be instituted safety, commissioner of his authorized promptly. representative, agent, employee, or or a (d) Property taken or sheriff, deputy sheriff, detained under municipal law subject this section shall not be to re- officer, enforcement or of constable plevin, but is deemed to in person custo- occupancy in or in control of land dy of safety the commissioner of or premises upon his species or which the of stored, being growing 52-1404. plants or Procedure in confiscation registration, drug appropriate or produce and vehicle.-—In all cases of an sei- of thereof, any drugs con- zure proof the holder of narcotic is or he marihuana authority any or vehicle, for the seizure aircraft or boat or other stitutes plants. property subject forfeiture under the provisions chapter, of this the officer or proceedings (i) under Confiscation §§ person making other the seizure shall in shall be conducted 52-1408—52-1448 proceed as follows: provisions set forth accordance with through 1407. in 52-1404 person, §§ First: He shall to the deliver any, possession prop- if found in of such proof— Evidence, burden 52-1444. of erty, showing general receipt, a a de- Immunity liability, law enforce- from scription goods. copy of seized A of performance duties. in ment of officers receipt said in shall be filed the office necessary —(a) for the state is not It department safety of exception and shall be negate any exemption in or open public inspection. any complaint, 52-1408—52-1448 §§ plead- information, indictment or other property Second: All such seized and ing any trial, hearing, or or in other provisions confiscated under the of this proceeding under 52-1408—52-1448. §§ chapter public by shall be sold at sale exemption proof any of of burden pur- commissioner of standards and claiming upon person exception or is chases when the same has been turned it. by to him of over ty the commissioner safe- by as now authorized law. (b) proof a of In the absence duly holder of is the authorized any Any person claiming Third: registration appropriate or order goods, as so seized contraband 52-1448, form under issued §§ 52-1408— may days (10) within from the ten date presumed of not to the holder he is seizure, time before the sale or registration The burden or form. disposition provided, herein file with presump- proof upon him to rebut the commissioner at Nashville claim tion. requesting hearing writing, and stat- ing by his interest seized. (c) liability imposed articles No 52- §§ Any with upon any such claimant shall also file authorized 1408—52-1448 (1) officer, claim a one or state, county municipal his cost bond with en- good gaged performance more solvent sureties his the lawful fifty dollars hundred and sum two duties. payable being ($250), bond made said decisions— 52-1445. Administrative Tennessee. determina- review.—All final Judicial a date for findings shall set tions, The commissioner and conclusions of the de- days from partment safety, department within ten of men- health, day The commission- health, department public is filed. the claim tal subpoena safety empowered to pharmacy er board §§ compel attendance at conclu- witnesses and their final and 52-1408—52-1448 are par- hearings All hereunder. authorized matters involved. sive decisions per- including proceeding, Any person aggrieved the decision ties to the claiming property, have shall son such of the decision obtain review right subpoena issued county to have of Davidson circuit courts Findings compel attendance petition commissioner to for writ of certiorari. parties department safety, deemed all de- of witnesses fact complete necessary full and health, department partment to be of mental hearing. entitled pharma- witnesses shall public All of of health or the board mileage provided evidence, fee and cy, the witness supported to if substantial legal witnesses, fees which for law are conclusive. any inquiry other paid part made mileage of the claimant has as shall be a and standing financial to the or proceeding. as character such the costs of person, other that such of such other ruling of the commis- In the the event reputation. person record had no such or claimant, the sioner is favorable claim- shall deliver to the commissioner Pending any proceeding to a recover drugs, or marihuana ant the narcotic vehicle, boat seized hereun- aircraft or ruling If the so seized. may order der, deliv- the commissioner claimant, to adverse commissioner is ery any es- claimant who shall thereof to proceed to or shall sell the commissioner possession right immediate his tablish thereof, goods dispose in ac- contraband of such execute, shall with one and who foregoing provisions cordance with approved (1) or sureties more storage, expenses trans- of hereof. The commissioner, deliver to the com- adjudged part portation, as etc. shall missioner, in of a bond favor the state proceeding in such of cost of the payment of a for the Tennessee and fix. shall as the commissioner manner appraised value thereof sum double the any proceeding hearing, as of and condi- the time Whenever that, vehicle, any chapter, ve- tioned if the air- claim is filed further a for at hicle, craft or not returned the time seized, or as herein- boat is aircraft boat hearing, provided, shall stand in lieu shall the bond above the commissioner of and same manner unless and until be forfeited allow claim (1) vehicle, proves: in- as such aircraft or boat. claimant that he has an boat, vehicle, or terest in such aircraft safety, The in his commissioner otherwise, as or he ac- owner which ap- hereby discretion, authorized to faith; quired good (2) at that he had designate hearing point or a officer knowledge any no or time reason to be- hearing officer at the sit and set such as being or lieve that it was would be used request com- in the absence in the violation of laws of the United purpose safety for the missioner of or of the relat- state Tennessee hearing conducting such the commis- ing drugs marihuana; or to narcotic necessary. may sioner hear- deem The appears if interest designated by ing the commis- officer asserted or claimant arises out of findings fact, con- sioner shall make any way subject any is in contract or law, for clusions and recommendation agreement any person under which hav- proposed based issuance order ing violating reputation record or concurs, thereon. If commissioner any laws of the or of United States order; said shall issue commissioner relating drugs narcotic or marihuana record, may, upon or he review right respect vehicle, has a with to such conclusions, findings, make such and is- boat, aircraft such claim- or that before as, discretion, the such order in his sue acquired interest, ant his or other such justifies. commissioner, record person right acquired his under such hearings himself, may hold such as he agreement, contract or whichever oc- hearing proper. officer deem Said later, claimant, curred his office subpoena empowered wit- likewise agent, informed, his in answer to compel nesses and their attendance inquiry headquarters sher- records, memoranda, production iff, principal police, chief of federal nar- papers other documents hear- engaged in cotics officer the enforce- ing section. authorized under this laws, ment of the narcotics or other hearings herein, provided At all principal or federal local law enforce- officer the commissioner or locality ment officer of the in which provide stenographer or court re- shall person acquired right such un- other his porter stenographic record of take a agreement, der contract hearing. at such the evidence adduced locality other then which such copy resided, locality entitled to shall be and of each claimant appli- approved by upon stenographic record, the commissioner. of said upon rea- condition of shall be that the thereof, paying the bond the cation obligors through by pay state, to the shall the to fixed thereof be costs sonable may department, the the full value of the The commissioner commissioner. goods seized, upon property unless publish, other and make, such and/or regulations, certiorari the of commis- procedural decision the rules and further property section, the he sioner shall be reversed and as with this not inconsistent any the governing awarded to claimant. proper, deems provided herein. party Either dissatisfied with the judgment or court re- decree of the circuit Action commissioner 52-1405. of may giving Supreme upon required Appeal as bond viewed—Certiorari — suits, appeal Supreme other to the of the commissioner Court. —The action Court, by reexamination, petition and have a safety may be reviewed court, of whole ad- the matter law and of certiorari for common law writ appearing in fact Provided record. of Davidson circuit court dressed any appeal that when such made County petition filed be which shall clerk the circuit court which such days date from the within ten pending part suit include shall as a is made. order of commissioner original of the record the tran- certified grant Immediately upon proceedings script of the had before the shall the commissioner writ of certiorari safety commissioner of when identified made, and forward- be certified cause to by judge the trial instead of bill of ex- transcript complete ed to said court a ceptions, which need be made and cause, proceedings in said appeal filed. Said shall be advanced proof be- shall contain all the submitted Supreme as docket All defendants fore the commissioner. precedence, one of such as heard desiring petition to make named in the promptly practicable. as plead otherwise defense shall answer or 52-1406. when no (10) days Procedure petition to said within ten final interposed. claim is inter- filing no claim from of said tran- the date of —If posed, drugs, such marihuana narcotic script, the time be extended unless or other be forfeited shall the court. proceedings without further Said the commissioner decision disposed same shall be sold or of as shall court be reviewed circuit provided. procedure herein The above solely upon pleadings tran- and the claimant, remedy any and no sole proceedings script of the com- before jurisdiction court shall to interfere have missioner, party en- and neither shall be super- by replevin, injunction, therewith any titled introduce additional evi- sedeas or in manner. other confis- dence the circuit court. The Disposition proceeds.— 52-1407. goods pending cated shall not be sold proceeds seizures, of all confisca- review, such but shall be stored pursuant tions and sales made department safety dis- the final until provisions chapter be trans- position shall of said case. deposit- mitted to the state treasurer and Within the the commis- discretion treasury; provided, ed in the state sioner, may be awarded claimant upon application of the commissioner goods possession of said confiscated proceeds any part thereof, pending the decision of the circuit court budget allocated director of the petition certiorari, pro- department safety expenda- vided, required the claimant shall receipts ble for use in enforcement payable execute a bond chapter of this and the other laws of Tennessee in an value regulating drugs amount double the this state narcotic property seized, the sureties to be marihuana. rights that could Judge (concur- in fact no there were GRAY, District Chief against sovereign. The part). asserted the dissenting be part in ring in and rights be- had no he could assert owner that in conclusion concur the Court’s I personam the action not in cause was question the Consti- in violates the and, course, had no the chattel itself the because of the United States tution rights. prescribed

post-seizure procedures to meet the standards reasoning the Act fail is manifested chain of This believe, how- I Fourteenth Amendment. dealt early cases which American provisions pre-seizure ever, the that exam- For and defined forfeiture. with constitutionally imper- the Act also ple, Supreme in held 1827: the Court respect- therefore, missible, must, and I contemplation of the common “In the fully that the conclusion dissent from right di- law, was not offender’s the apply process protections do not But this until the conviction. vested provisions. such applied to seizures doctrine was never Specifically, I the Consti- believe that statute, in forfeitures, created and seizure, prohibits tution the warrantless cognizable rem, side on the revenue arrest, not of a vehicle incident to thing exchequer. is here con- the provisions requires notice and and offender, the or rather the sidered as hearing prior vehicles, not to seizure of primarily to the offense is attached arrest, the owner incident to an where this, thing; offense the whether and sought to seized is whose vehicle is prohibitum, in or malum be malum charged transporting con- not with the 1, 15, Palmyra, se.” The Wheat. traband, exceptional circum- absent L.Ed. 531 probable demonstrate stances would reasoning to the con- led the This giving of notice cause to believe that the “ proceeding . . the clusion that . being spirit- would result the vehicle’s of, independent whol- in rem stands and away by ed the owner. proceed- by, any ly criminal unaffected only appears tra- At the it that outset personam.” Id., p. ing 6 L.Ed. doctrine, supported ditional forfeiture by persuaded precedent, voluminous has Supreme Court, in Dob- In the majority the in this case traditional States, Distillery bins v. United requirements constitutional cannot be ap- with 24 L.Ed. discussed applied procedures. Thus to forfeiture opinion proval Justice of Mr. Chief necessary it is roots of to examine the Marshall, while the Chief Jus- written doctrine current forfeiture and its sys- “riding under the tice was circuit” status. prevailing, tem then in United States Traditional forfeiture law is built Charles, Fed.Cas.No.15,612, 1 The Little upon fiction, the fiction that chat- Brock, (1818), saying p. or, guilty case, tel in this vehicle is 96 U.S.: sovereign, wrongdoing. of some nor “Neither confessions admissions therefore, thing pursued master, contended, it was were pro- Consequently, owner thereof. guilt prove admissible to ceeding through sovereign which the ac- owner; and the Chief added Justice complished type this was that, sup- if such as was the case was personam. rem, Building rather than posed argument, objection fiction, it was held weight. great would entitled thing, chattel, became forfeited the, sovereign But he remarked that the [forfeiture] it time committed wrongdoing. vessel, against proceeding chattel Since the was was one wrongdoer chattel, it was for an offense committed ves- owner, against offense, sel, not the which the not less an sover- eign proceeding, subject forfei- followed that does not the less her to peculiar ture because it was committed without that this nature of forfei- against authority ture, together will legal with the in- fiction nature, the owner.” herent in that somehow avoids application the of the usual constitution- Goldsmith, In the case of Jr. — Grant Co. guarantees. al The courts that have fol- States, 41 S.Ct. lowed this implicitly doctrine have held (1921), L.Ed. the Court they helpless that apply were the con- doc thrust the heart of the forfeiture at long stitutional standards as as the sanc- said, trine when it enclosing forfeiture, tum legal “ as a doc- Congress interposes the . . . trine, remained intact. responsibility of owners care and their prohibitions law opinion of of the I am aid the of the that re- certain punitive provisions, and its ascrib- cent decisions have either eroded or de- personal- ing property stroyed to the a certain underlying the rationale that guilt ity, power complicity prevented of application a has of con- wrong. In such case there is some stitutional standard of fundamental fair- deodand, by analogy ness, of to the law and this basis for this dis- personal chattel that was which a premised sent. This view on the fact of immediate cause death that traditional forfeiture doctrine de- pends reasonable creature was forfeited. on validity the continued or via- bility legal fiction; and, if the “But whether the reason 3450 be § destroyed, fiction is firmly real, entire rationale artificial or it is too fixed falls weight of its own punitive jurispru- and there is then in the and remedial subjecting no bar proceed- country forfeiture now dence be dis- ings eye Id., 510-511, placed.” pp. constitutional scruti- 41 S.Ct. ny. significance of these recent cases relied on me and in- discussed aspect it These cases make clear that the lies in their treatment of the fiction fra unique it forfeiture that made and not in the factual situations com- law was the fiction the chattel presented precise holdings. or the mitting wrongdoing, basis and the underlying of the rationale traditional significant The most recent decision forfeiture doctrine is this fiction. regarding forfeiture doctrine is United Currency, States v. Coin & legal The nature fic- and use this (1971), 28 L.Ed.2d 434 tion led the view that constitu- wherein the Court indicated that the sei- protections inapplicable. tional A were personal zure of an innocent individual’s thereby sanctum created which property questions would raise serious enclosed, forfeiture was that sanctum process under the due clause the earlier courts refused to invade. Fifth Amendment. And, although repeatedly crit- the courts scope icized the of for- broad thrust and attempt “But before the Government’s feiture, particularly the absence of distinguish Boyd to gin could even be- procedural guarantees, usual those same convince, we would first have upheld courts forfeiture laws because to be satisfied that a stat- forfeiture they compelled by weight felt so of- ute, sweep, with such a not broad did precedent. example of this reason- [An questions raise serious constitutional ing can found in be the case of Interbar- portion that the Fifth States, (1st tolo v. United F.2d Amendment that no commands 1962).] adopted Cir. This the view ‘deprived shall . by majority in the case at bar. property, law; without due private property nor shall be taken What has referred been to as tradi- public use, just compensation.’ without doctrine, then, tional forfeiture is sim- Blackstone, ply Even who is not unique known as the view that forfeiture is law, feather, biting English a bird of a different critic tradi- course, strictly is, of tion, of the McKeehan the seizure condemned analogous Neither to the case bar. based of the innocent as contended that McKeehan over- ‘superstition’ from can inherited law, forfeiture days’ turned all the traditional And of feudalism. the ‘blind compels recognized result past nor the case has that this urged by it does ex- reconciling But difficulty broad dissent. willingness press look be- Court’s scope doctrine forfeiture of traditional great precedent, hind wall Fifth requirements with the ” indicating on pp. the fiction Id., well as . . . Amendment. doctrine [Emphasis 720-721, which traditional 91 S.Ct. at longer in this circuit. is no viable rests added]. importance in its McKeehan lies language foregoing Admittedly, is the and, in rights of the owner focus on the having dicta, rule declined to Court the has respect, this circuit this shows that process grounds of the in favor on due with that direction consistent taken a ground The lan- of self-incrimination. Supreme Court Unit- the indicated predis- guage does indicate the Court’s supra. Currency, It ed Coin & impose process position to standards therefore, fairly, these that said can be property is from an inno- where seized propo- support decisions the narrow two sweep person of a cent under the broad longer pre- the courts no sition that indeed, and, con- forfeiture is statute applying constitutional from vented vincing relied would have that Court proceedings to forfeiture standards been on those standards had not others merely by of the the existence reason of language presented also therein. The concerning precedent tradi- wealth referring that the Court was indicates doctrine. tional forfeiture just prop- to more than forfeiture logical represents the The third case sense; erty it also in its ultimate the adherence trend terminus referring property under to seizure proposition In stated above. Moreover, it is the forfeiture statute. Valley Bally v. One Sun United States opinion Supreme implicit in the that the (W. F.Supp. Machine, 340 Pinball ignored chat- the fiction that the Court that, prior D.La.1972), noted the Court wrongdoer that it auto- tel was the Currency, no doubt there was to Coin & sovereign matically was forfeited to proceed validity of forfeiture as to the wrong was commit- time that the at the owners; against but ings, innocent even ted. Currency that & observed Coin important decision this re- Another (among subsequent is cases Court, spect, particularly is for supra) States, have v. United McKeehan States, F.2d McKeehan v. United changing sharply attitude illustrated (6th 1971), wherein Cir. proce routine toward what once was Appeals for the Sixth States Court observation, dure. on that Based for- to follow traditional Circuit refused where on to hold that Court went and the fiction. The Court feiture rules contraband, per se chattel was not found in the case that four features prior notifi without could not seized holding “gave follows: for as basis” Although Bally owner. cation factually to the instant dissimilar Sun legislative, “The lack valid ad- different somewhat case and involved a purpose for ministrative or revenue presented type of forfeiture from rem, pursuing the item rather than herein, analysis the trend estab its possessor, gives us a Currency, dis its utter & lished Coin conceiving of this action for basis regard ac fiction inherent purposes as certain constitutional in rem characterization tion and the personam. doing, In we action in so proceedings on focus its creating fiction’, ‘legal are not but sup- rights process destroying p. in due terms Id., one.” owner’s port the conclusion I would reach

case at bar. stated,

Simply that conclusion is that chattel, thing, fiction that the longer wrongdoing guilty intact no pre- that, therefore, is not the Court applying from the due

cluded proceedings. I Thus

clause forfeiture should, can, and that this Court believe subject provisions Drug Control of 1971 to Tennessee commanded the Con-

the limitations

stitution. hold, indicated

I would therefore opinion, opening paragraphs of this Constitution, in the Act violates found to the violations addition

majority, by permitting the warrantless arrest, of a

seizure, not incident to an provide

vehicle, failure to its seizure, prior not notice and arrest, the owner where

incident to sought to be seized

whose vehicle is charged transporting the con with exceptional circum

traband, absent probable demonstrate

stances as would giving of notice cause believe that being spirit vehicle’s

would result away by Fuentes v.

ed the owner. Shev

in, L.Ed.

2d 556 of PENN

In the Matter CENTRAL COMPANY, TRANSPORTATION Debtor.

No. 70-347. Court, States District Pennsylvania. E. D.

March

Case Details

Case Name: Fell v. Armour

Court Name: District Court, M.D. Tennessee

Date Published: Nov 27, 1972

Citation: 355 F. Supp. 1319

Docket Number: Civ. A. 6367

Court Abbreviation: M.D. Tenn.