State v. ClarkState v. Clark
A writ was granted in these four consolidated cases involving the application of the Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (Forfeiture Act) as contained in
The ad hoc trial judge found that the Forfeiture Act is constitutional. The claimants filed writ applications to this court to have the judgment reviewed.1 We have carefully considered the consolidated matter. We affirm the ruling of the trial court.
The claimants attack the statute on several grounds. Mainly, they allege that it permits the taking of property without due process because it unconstitutionally shifts the burden of proof. They also contend that it unconstitutionally fails to provide the property owner with a fair and impartial fact finder to consider his case, discourages and deprives a citizen of the right to go to court to get his property back, and does not sufficiently define the property which is subject to forfeiture.
Statutes are presumed constitutional, and the party challenging a statute‘s validity must articulate a particular constitutional provision that limits the legislature‘s powers. When a constitutional challenge is made, the question is not whether the constitution empowers, but whether the constitution limits the legislature, either expressly or impliedly, from enacting the statute at issue. Chamberlain v. State Through DOTD, 624 So.2d 874 (La.1993). In an attack upon a legislative act as falling within an exception to the legislature‘s otherwise plenary power, an opponent must establish clearly and convincingly that the constitutional aim was to deny to the legislature the power to enact the legislation. Polk v. Edwards, 626 So.2d 1128 (La.1993).
The Forfeiture Act was enacted pursuant to the provisions of Section 4 of Article I of the Constitution of Louisiana.
DUE PROCESS
The district attorney shall have the initial burden of showing the existence of probable cause for forfeiture of the property. If the state shows probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant‘s interest in the property is not subject to forfeiture.
Louisiana‘s Forfeiture Act was patterned on the federal act. The claimants ask us to declare the act unconstitutional under both constitutions, but concede that the federal provision has been declared constitutional by the federal courts. They nevertheless predict “that when presented the proper case the United States Supreme Court will eventually conclude that the burden shifting scheme violates the procedural due process clause of the Federal Constitution.” We can perceive no trend in that direction in the latest expression of the Supreme Court on the subject of forfeiture, Libretti v. United States, ___ U.S.___, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995). There is no reason why we should reconsider whether the Forfeiture Act meets the test of federal constitutionality. As of now it clearly does. The claimants primarily rely upon the due process protection of Article I, § 2. We will confine our opinion to Louisiana law.
In State v. Manuel, 426 So.2d 140 (La. 1983) our supreme court said that constitutional review under the federal Fourteenth and Fifth amendments is less exacting than a Louisiana constitutional inspection because of the different, more detailed safeguards for property rights contained in our state charter. The reference was to
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. Personal effects, other than contraband, shall never be taken.
This Section shall not apply to appropriation of property necessary for levee and levee drainage purposes.
Pursuant to Act 840 of 1989, a proposal to amend
Personal effects shall never be taken. But the following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole or in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property furnished or intended to be furnished in exchange for contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above described property has been rendered unavailable.
In support of their contention that the shifting of the burden of proof is an unconstitutional denial of due process, the claimants rely entirely on State v. Spooner, 520 So.2d 336 (La.1988). Spooner was decided before the above-quoted constitutional amendment was approved and before the passage of the Forfeiture Act under consideration now. Spooner concerned another forfeiture statute,
The central issue in Spooner was whether the property owner could be required to prove in a forfeiture proceeding that money found on his person at the time of his arrest was not contraband. In concluding that the property owner could not be required to disprove a presumption that his property was contraband, but that, instead, the state had to bear the burden of proving that the seized property was contraband, the supreme court relied on the protections which the 1974 Louisiana Constitution extended to the right to own and control private property. The court concluded that requiring that the state have the burden of proof as to derivative contraband was necessary to avoid infringement upon constitutional due process and private property rights. The court referred to the traditional disfavor in which forfeitures have been regarded under Louisiana law. Defining a forfeiture proceeding as “by nature an attempt to deprive the defendant of his property as a punishment,” the court held that the property owner was entitled to substantially the same protection that an accused is entitled to in any criminal case. Thus, the court said, the burden of proving that the defendant‘s property was derivative contraband must be on the state.
As this court said in State v. 77,014.00 Dollars, 607 So.2d 576 (La.App. 3 Cir.1992), writ denied, 612 So.2d 61 (La.1993), the response to Spooner was the enactment of Louisiana‘s present forfeiture law. More importantly, the response to Spooner was an amendment to the Louisiana Constitution having to do with the right to own and control private property. This amendment permitted the enactment of the forfeiture law.
Forfeiture of contraband drug property in a civil proceeding has now been elevated to constitutional dignity. No longer is a generic distinction between contraband and derivative contraband relevant because Article I, § 4 now says that the property which may be forfeited includes both. The tradition of looking with disfavor upon forfeitures is ended by our present constitution which looks with favor upon forfeiture of drugs and property that is drug-tainted as described in Article I, § 4. We do not need to search for a historical basis (such as deodand) for forfeiture of drug contraband in Louisiana; forfeiture of drug contraband is now constitutionalized.
The 1974 constitution fixed the right to acquire, own, control, use, enjoy, protect, and dispose of private property but made it subject to reasonable statutory restrictions and the reasonable exercise of the police power. “The background of the provision indicates an understanding that the statutory limitations and police power regulations are to be given a broad ambit.” Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.Law Review 1, 12 (1974). Since 1989, the constitution itself, by allowing the forfeiture and disposition in a civil proceeding of drug-tainted property, enlarges that ambit by establishing a further limitation on the right to property. Prior to 1989, whether forfeiture laws were to be examined in the context of a criminal proceeding and
Giving constitutional preeminence to a public need for the taking of private property is not new to the constitution. Property needed for a public purpose has always been a limitation on private property rights recognized by Article I, § 4. The state may take private property for a public purpose. The present expropriation paragraph of Article I, § 4 was adopted in 1974. Louisiana‘s original “quick taking” statute,
Much has been said about Article I, § 4 of the Constitution of 1974 and its purpose in expropriation cases to compensate the owner to the full extent of his loss. State, DOTD v. Dietrich, 555 So.2d 1355 (La.1990). Yet, the entire burden of proving entitlement to any compensation beyond that deposited into the registry of the court by the expropriating entity rests on the landowner to establish his claim by a preponderance of the evidence. Id. Although the property owner‘s right to compensation and the extent of the right is constitutionally based, this burden of proof does not offend due process.
The power of the state to take property for public purposes by expropriation and the power to take by forfeiture drugs or drug-related property are now both constitutionally recognized limitations on the right to property. It has never been contended that the burden of proof requirements in the taking of property by expropriation for public purposes violate due process. The burden of proof requirements for the taking of drug-tainted property by forfeiture under the Forfeiture Act do not violate due process. It is not a distinction to say that expropriation is less a taking because the state must pay in advance for the property. Forfeiture is no more a taking than is expropriation. The distinction is, there is no compensable property right in contraband drugs or drug-related property. We will further explain this distinction.
In Spooner Justice Cole concurred in the holding that the ultimate burden of proof was on the state. Justice Cole applied the factors listed in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Under Eldridge, three separate factors must be weighed in determining the validity of a procedure which can deprive a person of property: (1) the governmental interest served by the challenged procedure; (2) the individual interest served by the challenged procedure; and (3) the risk of an erroneous deprivation
Since cash is not `per se’ contraband, but rather is a `personal effect’ until the state shows it to be `derivative contraband,’ the risk of error in any procedure which classifies cash as contraband must be very small in order to comply with Article I, Section 4‘s mandate that personal effects, other than contraband, never be taken. The presumption, concommittant [concomitant] with the shifting of the burden to the claimant to rebut it with clear and convincing evidence, is unconstitutional under the
Louisiana Constitution.
Spooner, 520 So.2d at 365.
This observation by Justice Cole was consistent with the following analysis of what went on during the drafting of the Constitution of 1974.
Property considered as `contraband’ is exempted from the requirement that personal effects not be taken. The record provides no special definition of contraband. The term is used in the ordinary sense of property the possession of which is forbidden by law. The historical evolution of the term indicates that no compensation need be given when goods classed as contraband are taken. The government‘s power to classify items as contraband and to take them without compensation is of course limited by the provisions that the right to own property is subject to `reasonable’ restrictions and that property cannot be taken without due process. (footnote omitted)
Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.Law Review 1, 19-20 (1974).
The 1989 amendment to Article I, § 4 enjoins the taking of personal effects. However, contraband drugs is firmly installed as an exception, and the description of forfeitable property is further enlarged to include drug-tainted property, or derivative contraband.
Not only does the constitution now put drug-tainted property, or derivative contraband, in the same category as the contraband itself, but by declaring that the forfeit be by means of a civil proceeding, the constitution now eliminates the notion, adopted in Spooner, that the range of process due a defendant in a forfeiture proceeding must be similar to that to which the accused is entitled in any criminal case.
The 1989 amendment to Article I, § 4 establishes that forfeiture cases are not to be approached in the context of criminal law and in reliance upon criminal precepts, but rather in the context of property law, just as Justice Cole and the two justices concurring with him stated in Spooner. The question of whether forfeiture in Louisiana is civil or criminal is no longer left to statutory or jurisprudential construction; that it is essentially civil (as a limitation on the right to property) is now of constitutional stature, and it is subject to the procedural rules governing civil matters.
That forfeiture is punishment, is a common sense fact unaffected by the constitutional amendment. To the extent that in a given case the punishment feature might trigger the protections of certain criminal constitutional guarantees such as double jeopardy, excessive fines, and perhaps other guarantees, criminal due process considerations are appropriate in evaluating the extent of the forfeit under the Forfeiture Act. But it is not appropriate to subordinate forfeiture to every constitutional provision that deals with criminal rights. For example,
The amendment has now placed into a constitutional context the power of the State to take contraband or drug-tainted property without compensation and in a civil proceeding. It does so by removing the restriction on the legislature‘s power to authorize forfeiture, a restriction which Spooner found to be implicit in the right to property of Article I, § 4. The burden of proof procedures provided by the Forfeiture Act do not violate due process.
A FAIR AND IMPARTIAL TRIBUNAL
Another essentially due process argument is that the Forfeiture Act does not give claimants a fair and impartial tribunal to hear their case. This argument is two-pronged, the first based on the denial of a jury trial and the second because a share of the forfeited proceeds goes to the Criminal Court Fund which is used to defray the cost of operating the courts. We will discuss these two prongs separately.
The Seventh Amendment‘s right to trial by jury in civil cases has not been extended to the states through the Fourteenth Amendment. Parker v. Rowan Companies, Inc., 599 So.2d 296 (La.1992), cert. denied, 506 U.S. 871, 113 S.Ct. 203, 121 L.Ed.2d 145 (1992). A denial of a jury trial in a state court civil proceeding does not violate the due process clause. Id. Therefore, it is within the province of the states to establish their own rules for the availability of jury trials. Id.
As recognized before, Article I, § 4 now provides that a forfeiture proceeding may be a civil proceeding. Also,
Claimants argue that the allocation of the forfeited proceeds pursuant to
We find no merit to this argument. Salaries of judges are fixed by law and are paid out of funds annually appropriated for that purpose by the legislature. The day-to-day expenses of operating the courts are paid by public funds and inure to the benefit of judges individually no more so than to the benefit of every citizen of the state. Under
A judge is presumed to be impartial. State v. Collins, 288 So.2d 602 (La.1974). The burden of establishing a disqualifying interest rests on the party making the assertion. Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982).
The chance that a trial judge will benefit from this scheme is too remote to warrant a presumption of bias. The trial judges are not responsible for the financial condition of the criminal courts. Also, before any money is deposited into the criminal court fund, it must first be used to satisfy any security
OTHER ARGUMENTS
The claimants’ remaining attacks are leveled at equal protection, vagueness, the ex post facto principle, and access to courts. We find no merit to these attacks.
The Forfeiture Act affects alike all persons and interests similarly situated. See Detraz v. Fontana, 416 So.2d 1291 (La.1982). The state‘s objective is to protect its citizens from the dangers of drugs. State v. Brown, 94-1290 (La. 1/17/95); 648 So.2d 872.
The statute‘s definition of conduct giving rise to forfeiture and property subject to forfeiture is not vague. Any reasonable person can understand that conduct that gives rise to forfeiture is conduct that violates the Controlled Dangerous Substances Law, and property which is subject to forfeiture is contraband and derivative contraband. See Brown, 648 So.2d 872.
Nor is application of the law ex post facto. It became effective at midnight on December 31, 1989, and the conduct of the claimants in violation of the Forfeiture Act occurred after that date. Louisiana State Bar Ass‘n v. Bosworth, 481 So.2d 567 (La. 1986).
The cost bond requirements of the statute do not offend the access to courts provision of the Louisiana Constitution. For the same substantive due process issues which we have already discussed earlier in this opinion, the claimants have no fundamental constitutional right to contraband, derivative contraband, or property related to contraband. For that reason the legislature is free to allocate access to the judicial machinery on any system or classification which is not totally arbitrary. Bazley v. Tortorich, 397 So.2d 475 (La.1981). The imposition of a cost bond on all but pauper claimants seeking return of forfeited property is not an arbitrary exercise of the police power. The bond requirements of the Forfeiture Act do not contravene the access to courts guarantee of our state constitution.
We affirm the judgment of the trial court, at applicants’ costs.
AFFIRMED.
THIBODEAUX, J., dissents and will assign reasons.