REL: 10/31/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
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1131440
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Ex parte Michael Dale Bennett
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: H.A. Cox and Lashun Hutson
v.
Michael Dale Bennett)
(Lowndes Circuit Court, CV-12-900024;
Court of Civil Appeals, 2121053)
WISE, Justice.
WRIT DENIED. NO OPINION.
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Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,
JJ., concur.
Moore, C.J., dissents.
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MOORE, Chief Justice (dissenting).
On June 5, 2012, Michael Dale Bennett filed a complaint
against Officer H.A. Cox and Officer Lashun Hutson of the
Lowndes County Sheriff's Department ("the sheriff's
department"), in their official capacities, seeking the
release and return of $19,855 in cash he claimed belonged to
him. Bennett alleged that on September 2, 2011, officers of
the sheriff's department had seized the cash during a search
of a vehicle in which he was a passenger. Both Bennett and the
driver were arrested and brought to the sheriff's department;
the driver was held pursuant to an outstanding warrant, and
Bennett was released. Bennett argued in his complaint that no
forfeiture or condemnation action had been promptly filed
against the cash as required by § 20-2-93(c), Ala. Code 1975,
and that, therefore, he was entitled to have the cash returned
to him.
In response to a motion for a summary judgment filed by
Bennett, Cox and Hutson claimed that the federal government
was then in possession of the cash and that a federal
forfeiture proceeding was pending. The trial court granted
Bennett's motion for a summary judgment. Cox and Hutson
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appealed to the Court of Civil Appeals, which reversed the
judgment of the trial court. Cox v. Bennett, [Ms. 2121053, May
16, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). The Court of
Civil Appeals held that "the doctrine of adoptive forfeiture
applied in the present case such that jurisdiction had vested
in the federal district court and, therefore, the trial court
never acquired in rem jurisdiction over the property." ___ So.
3d at ___. Bennett now petitions for a writ of certiorari to
review the Court of Civil Appeals' decision.
In his petition, Bennett argues, among other things, that
§ 20-2-93 does not permit state or local law-enforcement
officials to transfer seized property to the federal
government to initiate a federal forfeiture proceeding in
order to avoid the stricter forfeiture laws in state court.
Bennett also argues that this issue is one of first impression
for this Court. Section 20-2-93(d) provides:
"(d) Property taken or detained under this
section shall not be subject to replevin but is
deemed to be in the custody of the state, county or
municipal law enforcement agency subject only to the
orders and judgment of the court having jurisdiction
over the forfeiture proceedings. When property is
seized under this chapter, the state, county or
municipal law enforcement agency may:
"(1) Place the property under seal;
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"(2) Remove the property to a place
designated by it;
"(3) Require the state, county or
municipal law enforcement agency to take
custody of the property and remove it to an
appropriate location for disposition in
accordance with law; and
"(4) In the case of real property or
fixtures, post notice of the seizure on the
property, and file and record notice of the
seizure in the probate office."
(Emphasis added.)
It appears that the sheriff's department transferred
Bennett's cash to the federal government in order that the
federal government could institute a federal forfeiture
proceeding. The Court of Civil Appeals previously has
described this process, known as "adoptive seizure," as
follows:
"The adoptive-seizure process begins when state
or local authorities seize property as part of a
criminal investigation or arrest. Generally, the
state or local officials either make a determination
that forfeiture is not possible under state law or
conclude that it is advantageous to them to transfer
the matter to federal authorities for a federal
administrative forfeiture proceeding. See I.R.S.
Manual 9.7.2.7.3 (July 25, 2007); Asset Forfeiture
Law, Practice, and Policy, Asset Forfeiture Office,
Criminal Division, United States Department of
Justice, Vol. I (1988) at 38 (cited in Johnson v.
Johnson, 849 P.2d 1361, 1363 (Alaska 1993)). Once
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state or local officials have determined that an
adoptive seizure is advantageous, they file a
request with federal authorities. The appropriate
federal agency then decides whether to accept or
reject the request. If the adoptive-seizure request
is accepted, the property is taken into the custody
of federal agents and federal administrative
forfeiture proceedings begin. At the successful
conclusion of those proceedings, usually 80% of the
forfeited property is given back to the state or
local agency."
Green v. City of Montgomery, 55 So. 3d 256, 258 (Ala. Civ.
App. 2009).
On its face, § 20-2-93(d) does not explicitly authorize
state or local law-enforcement officials to transfer, or
forbid them from transferring, seized property to federal law-
enforcement officials. The only portion of the statute that
arguably could authorize such a transfer is § 20-2-93(d)(3),
which allows state or local law-enforcement officials "to take
custody of the property and remove it to an appropriate
location for disposition in accordance with law." One could
reason, as the Court of Civil Appeals did in Green, that the
phrase "in accordance with law" does not necessarily mean in
accordance with Alabama law and therefore that the transfer is
valid if it is in accordance with federal law. See Green, 55
So. 3d at 261. However, this Court has held that, in
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construing a statute, "[i]f a literal construction would
produce an absurd and unjust result that is clearly
inconsistent with the purpose and policy of the statute, such
a construction is to be avoided." City of Bessemer v. McClain,
957 So. 2d 1061, 1075 (Ala. 2006). See also 1 William
Blackstone, Commentaries *60-62; Ex parte Baker, 143 So. 3d
754, 757-59 (Ala. 2013) (Moore, C.J., dissenting and
explaining Blackstone's view of equity in interpreting
statutes).
As the Court of Civil Appeals noted in Green, the
adoptive-seizure process is used when "state or local
officials either make a determination that forfeiture is not
possible under state law or conclude that it is advantageous
to them to transfer the matter to federal authorities for a
federal administrative forfeiture proceeding." Green, 55 So.
3d at 258 (emphasis added). If forfeiture is not possible
under state law, then would it not be absurd to construe § 20-
2-93(d)(3) to allow state or local law-enforcement officials
to circumvent state law by transferring the seized property to
federal law-enforcement officials for a proceeding not allowed
under state law? Moreover, if state or local law-enforcement
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officials could not obtain a person's seized property under
state law, would it not be unjust for the state or local
government entity to transfer that property to the federal
government for forfeiture and then be given 80 percent of the
property back? These concerns compel me to find a probability
of merit to Bennett's first-impression argument,1 although I
would also like to hear arguments from the State regarding the
construction of § 20-2-93. Therefore, I would grant the
petition for a writ of certiorari in order to fully examine
what I believe to be an issue of first impression.
1
Although this Court repeatedly has addressed the issue
of adoptive forfeitures, it never has considered the specific
question whether § 20-2-93 authorizes state or local law-
enforcement officials to transfer seized property to federal
authorities to commence a federal forfeiture proceeding.
Although this Court denied certiorari review in Green, in
which the Court of Civil Appeals addressed this issue, this
Court conducts only a "preliminary examination" when it is
determining whether to grant a petition for a writ of
certiorari. Rule 39(f), Ala. R. App. P. Because this Court has
never conducted a full examination of the issue, it remains an
issue of first impression.
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