Concurring Opinion
JAMES M. SMART, JR., Judge.In view of the fact that this court mistakenly stated in dictum in Karpierz that sovereign immunity relates only to tort actions, and plaintiffs relied upon that dictum, I concur that the preliminary writ should be dissolved. Although plaintiffs claims, as pleaded, are less than adequate, plaintiffs should, as a matter of fairness, be allowed to amend. I write separately to emphasize that, despite our mention in Yahne, 73 S.W.3d at 724, that Yahne’s alleged right to recover property wrongfully taken “arises from concepts of due process,” it is not clear whether, in view of the underlying facts, that these plaintiffs can state a cause of action.
The Criminal Activity Forfeiture Act, adopted in 1986, regulates the civil forfeiture of property “used or intended for use in the course of, derived from, or realized through criminal activity.” § 513.607.1. State and local law enforcement authorities may obtain a forfeiture by a civil *192procedure that may be brought either before or after seizure. § 513.610. The interest of an “innocent party” shall not be subject to forfeiture. § 518.615. See State v. Dillon, 41 S.W.3d 479 (Mo.App.2000). An “innocent party” is one who did not have actual knowledge that the property was “used or intended for use in the course of, derived from, or realized through criminal activity.” Id.
Seven years after the adoption of CAFA, the General Assembly amended the law to include a provision (§ 513.647) prohibiting transfer of funds to a federal agency for a forfeiture proceeding in federal court unless certain conditions are met. State v. Sledd, 949 S.W.2d 643, 646 (Mo.App.1997). The amendment was adopted because local law enforcement authorities had developed a pattern of transferring funds to federal agencies for forfeiture in federal courts under an agreement with federal authorities that a portion of the funds would be rebated to the local law enforcement agency. State v. Gray, 21 S.W.3d 847, 851 (Mo.App.2000); see In re U.S. Currency v. United States, 136 F.3d 581, 583 (8th Cir. 1998) (Loken, J., concurring)
The petition here asserts that the defendant officers, in connection with a drug investigation, seized money and property belonging to the named plaintiffs. Plaintiffs assert that the defendant officers violated section 513.647 by transferring the funds to federal officers without complying with the requirements of that section. Plaintiffs plead that the property, after seizure, was diverted to federal authorities rather than forfeited in a state court under CAFA. The petition did not assert whether the property in question was generated by or used in criminal activity, and did not state whether the plaintiffs were “innocent parties.”
In amending CAFA in 1993, the General Assembly imposed limitations on transfers of seized items from local law enforcement to federal agencies. See State v. Sledd, 949 S.W.2d 643, 647 (Mo.App.1997). The General Assembly’s obvious purpose was to retain funds for local school districts. See § 513.623 RSMo 2000; Art. IX, Section 7, Mo. Const. Did the legislature place the amendments in the statute to protect convicted drug dealers by providing for a refund to the convicted drug dealers when the forfeited money or property was improperly transferred? Or was the legislature simply creating procedural barriers to transfer in order to retain the benefit of the forfeiture for the Missouri school districts? Or was it both? This court in Yahne concluded that Yahne’s proposed theory of recovery did not arise under CAFA itself. 73 S.W.3d at 724. If we were right in Yahne, plaintiffs perhaps cannot assert a statutorily expressed or implied right of recovery under the statute. They may be limited instead to a common law or constitutional theory. A common law theory must address the sovereign immunity issue, as the principal opinion notes. It is thus possible that the only theory independent of sovereign immunity would be a constitutional theory, such as a claim under the takings clause of the U.S. or State constitution.
One of the basic unresolved questions is what the court is to do when the property in question is legitimately subject to forfeiture, but was improperly transferred instead of forfeited under Missouri law. Property which is not subject to forfeiture should be returned to its owner. See § 513.617.4. Officials have a duty to properly dispose of seized property in their custody. Sledd, 949 S.W.2d at 646. See State v. $152,760 in United States Currency, 87 S.W.3d 374 (money not subject to forfeiture ordered returned to party from whom seized); State v. Residence Located at 5708 Paseo, 896 S.W.2d 532 (Mo.App.*1931999) (residence not shown to be forfeita-ble ordered returned). CAFA, as amended in 1993, now provides specifically that “no property shall be forfeited unless the person charged is found guilty of or pleads guilty to a felony offense substantially related to the forfeiture.” Section 513.617; State v. Eicholz, 999 S.W.2d 738 (Mo.App.1999) (when there was no conviction because defendant died while his case was still pending, the money was required under the statute to be returned to the defendant’s estate). But what of the case where the person was convicted of a felony related to the forfeiture, and the property was actually subject to forfeiture, and the funds were improperly transferred? What if the school districts do not claim the money?
With regard to assets seized from individuals later convicted of a crime related to the forfeiture (as the State asserts is the case here), Missouri courts have not yet, apart from the dictum in Karpierz, addressed the issue.1 Accordingly, it remains to be seen how plaintiffs will develop and plead their own theory of recovery. However, in all fairness, the plaintiffs here must be given that opportunity.
. See Madewell v. Downs, 68 F.3d 1030, 1040-44 (8th Cir.1995). See also United States v. Various Pieces of Semiconductor Mfg. Equip., 649 F.2d 606 (8th Cir.1981); United States v. Thirty-Six Thousand, One Hundred and Twenty-Five Dollars in U.S. Currency, 510 F.Supp. 303 (E.D.La.1980); United States v. One 1970 Ford Pick-Up Truck, 537 F.Supp. 368 (N.D.Ohio 1981).