State v. One 2013, Toyota Corolla

NEUBAUER, C.J.

¶ 24. (concurring). This case presents an issue of first impression: whether the innocent owner defense in a forfeiture action under Wis. Stat. § 961.55(l)(d)2. applies to an innocent co-owner. Analysis of the forfeiture statute, State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), as well as persuasive federal and state authority addressing the same or similar statutory language leads me to conclude that under § 961.55(1)(d)2. "the owner" includes a co-owner and that an "innocent" co-owner is protected to the extent of his or her interest in the property. This straightforward statutory approach avoids the need to address the forfeiture of an innocent co-owner's financial interest as an unconstitutional excessive fine.

¶ 25. In Wisconsin, a vehicle that is used in connection with a drug-related offense is subject to forfeiture. Wis. Stat. § 961.55(l)(d). However, "[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent." Sec. 961.55(l)(d)2. (emphasis *598added).1 Forfeitures "shall be made with due provision for the rights of innocent persons" under subd. (l)(d)2. Sec. 961.55(3). All persons who have or may have "an interest" in the property shall be given notice of a hearing to hear all claims to its "true ownership." Id. Thus, the question is whether the legislature intended for "the owner" to include a "co-owner." The goal of statutory construction is to give effect to the intent of the legislature, which requires one to focus on the statutory language. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. As the court in Kirch concluded, the undefined term "owner" is ambiguous. Kirch, 222 Wis. 2d at 604. When a term is ambiguous we may look to the object of the statute to discern legislative intent, as well as other sources. Id.2

¶ 26. The majority looks to Kirch for guidance in determining whether Baumgard or Vogel is "the owner" for purposes of the innocent owner defense, concluding that "the owner" has to be one or the other. The majority's analysis that there can be only one owner appears to turn on the use of "the owner" in the statute and repeated in Kirch. But, it is a codified rule of statutory construction that "[t]he singular includes the plural. . . ." Wis. Stat. § 990.001(1); see In re Forfeiture of One 1970 Ford Pickup Truck, 823 P.2d 339, 341 (N.M. Ct. App. 1991). The statute permits more than one owner.

¶ 27. In Kirch we determined that the factors to be considered to determine ownership include "posses*599sion, title, control and financial stake." Kirch, 222 Wis. 2d at 606-07. The federal cases cited for application of the multifactor analysis recognize an innocent owner defense to the extent of the owner's interest.3 Id. An "owner" may include a person with only a partial or shared interest in property. Owner, Black's Law Dictionary (10th ed. 2014) (owner defined as "[s]omeone who has the right to possess, use, and convey something; a person in whom one or more interests are vested. An owner may have complete property in the thing or may have parted with some interests in it."). It is common for one person to use the property, while two are on the title and have a financial stake.

¶ 28. The majority relies on Kirch to conclude that Vogel is a "nominal owner," when she in fact is on the title and has a significant financial stake. However, a nominal owner is one "existing in name only." Nominal, Black's, supra. In Kirch and the federal cases we cite and upon which the majority relies, the "nominal owner" had no financial stake: the claimants had no indicia of ownership beyond bare legal title. Kirch, 222 Wis. 2d at 605-06. These cases do not address a co-owner who is, in fact, not a nominal owner.

¶ 29. In Kirch we favorably cited the federal statute that provided an exception for property from forfeiture "to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." Id. at 605 n.2 (citing 21 *600U.S.C. § 881(a)(7)). Subsequently, in 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA), 18 U.S.C. § 983, which replaced a number of federal forfeiture statutes. With CAFRA, Congress provided an innocent owner "defense for all federal civil forfeitures, to make that defense uniform, and to ensure that it offers protection in all appropriate cases." H.R. Rep. No. 106-192, at 15 (1999).4 As part of the innocent owner defense, CAFRA took into account that an innocent owner may have only a "partial interest in property... a joint tenancy or tenancy by the entirety." 18 U.S.C. § 983(d)(5) (2012). In those circumstances, a court is given three different options in fashioning an appropriate remedy that account for the interests of the federal government and the innocent owner, to the extent of the co-owner's interest. See 18 U.S.C. § 983(d)(5)(A), (B), & (C). Thus, under federal forfeiture statutes, the innocent owner defense discussed in Kirch was and is available to protect a co-owner to the extent of his or her interest.

¶ 30. Similarly, a number of state courts interpreting the same or similar statutory language as that provided in Wisconsin's forfeiture statute have concluded that "the owner" recognizes innocent co-owners. Like in Wisconsin, Delaware provides that "[n]o vehicle is subject to forfeiture under this section by *601reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent." Del. Code Ann. tit. 16, § 4784(a)(4)b. (West 2015) (emphasis added). In In re One 1986 Pontiac Firebird, 687 A.2d 190, 191-92 (Del. 1997), the Delaware Supreme Court looked to the federal courts and other states, and found that the majority of courts addressing the innocent owner defense have interpreted owner to include a co-owner and to protect a co-owner to the extent of his or her interest in the forfeited property. This approach was "best designed to accomplish the overall purpose of deterring drug-related activity while protecting innocent property owners." Id. at 192.

¶ 31. Similarly, in State v. Jackson, 399 S.E.2d 88 (Ga. Ct. App. 1990), at issue was Georgia's forfeiture statute, which then provided that "[n]o conveyance is subject to forfeiture under this Code section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent." Id. at 90 (emphasis added) (quoting Ga. Code Ann § 16-13-49).5 The court noted that the statute did not explicitly address the forfeiture of co-owned property, leaving the term "owner" ambiguous. The intent of the legislature, though, was to dispose of property subject to forfeiture promptly, while protecting the property interests of innocent owners. Id. at 90. Giving effect to those balanced interests led the court to the "logical" construction "that the legislature intended ['owner'] to apply to owners to the extent of their interest in property subject to forfeiture." Id. This construction, the court noted, "would allow the State to condemn the property *602interests of wrongdoers, and those otherwise failing to qualify as innocent owner under the statute, while at the same time preserving the interests of innocent owners." Id. The court found that a construction that was consistent with the intention of the legislature allows "forfeiture of the property interest of the wrongdoer and those who knew or should have known of the criminal use of the property, and provides protection to innocent owners to the extent of their property interest." Id. at 91; see In re Forfeiture of 1985 Ford Ranger Pickup Truck, 582 So. 2d 3, 4 (Fla. Dist. Ct. App. 1991) (holding that an "innocent owner" under the Florida Contraband Forfeiture Act need not be the owner of the whole property where the ownership is divisible and the property is susceptible of division in kind or sale and division of proceeds; "The State certainly should have the right to proceed against the property; however, the State is not entitled to take the property of one who did no wrong and knew of no wrong."), aff'd, 598 So. 2d 1070 (Fla. 1992); In re Forfeiture of One 1970 Ford Pickup Truck, 823 P.2d at 341 (by construing "the owner" to protect co-owners the court found that it was "furthering the intent of the legislature" to protect owners who did not participate in or have knowledge of the illegal uses to which their property was put, "consistent with the language of the statute").

¶ 32. Like these other jurisdictions, the plain language of Wis. Stat. § 961.55 demonstrates that the intent of the legislature is to deter and punish drug trafficking by permitting the forfeiture of vehicles used in connection with drug-related offenses, while protecting the interests of innocent parties. State v. Fouse, 120 Wis. 2d 471, 477-79, 355 N.W.2d 366 (Ct. App. 1984). The statute provides that all forfeitures "shall be made with due provision for the rights of innocent *603persons" under subd. (l)(d)2.6 Sec. 961.55(3). All persons with "an interest in the property" shall be given notice of the hearing on claims to determine the property's "true ownership." Id. Giving notice to all persons with "an interest" in the property, but then ignoring the ownership interest of an innocent co-owner would defeat the "rights of innocent persons" and "true" owners, contrary to the statute's directives. The provisions of § 961.55(3) require due provision for the rights of an innocent co-owner — to the extent of his or her interest.7

¶ 33. The majority's analysis forces a conclusion that one co-owner is the only "actual owner," and employs the fiction that the other with a financial stake is a "nominal owner," when neither is the case. This artificial analysis undermines the intent of the legislature by potentially precluding the forfeiture of co-owned vehicles. Considering the practical realities of ownership as reflected in that word's very meaning, that the singular includes the plural, and the intention *604of the legislature, "the better reasoned approach" is to construe the ambiguous "the owner" to include innocent co-owners. Jackson, 399 S.E.2d at 91. This construction allows forfeiture of the property interest of the wrongdoer and those who knew or should have known of the criminal use of the property, and provides protection to innocent owners to the extent of their property interest.

¶ 34. The next issue is whether Vogel qualifies as a co-owner, since it is undisputed that she is "innocent." As noted above, relevant factors a court must consider are "possession, title, control and financial stake." Kirch, 222 Wis. 2d at 606. In addition to having her name on the title, Vogel had, as the circuit court found, "the primary financial stake" in the Toyota. She paid $20,000 toward the $23,320 purchase price, which Baumgard had started to repay when the vehicle was seized. The majority, while acknowledging that Vogel has the largest financial interest in the vehicle, is persuaded that Vogel is not "the owner" because it is Baumgard who will "suffer most" from the forfeiture, Majority, ¶ 12, but, if Vogel was truly a mere "nominal owner," then why would she suffer at all? As already discussed, "the owner" includes a co-owner, and that interpretation prevents an innocent owner with a financial stake in the property from suffering at all. Therefore, for the foregoing reasons, I conclude that Vogel has met her burden to establish that she is a co-owner entitled to the protection of Wis. Stat. § 961.55(l)(d)2.

¶ 35. Because this appeal can be decided using a straightforward construction of the statute, I need not address whether the forfeiture is constitutionally ex*605cessive as to Vogel.8 When possible this court will avoid deciding a constitutional question if the case can be decided on other grounds. State v. Halmo, 125 Wis. 2d 369, 374 n.5, 371 N.W.2d 424 (Ct. App. 1985). Application of the innocent owner defense to a co-owner avoids the problem of a governmental taking of property belonging to a truly innocent owner, which would "give rise to serious constitutional questions." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689 (1974).

¶ 36. I conclude that the term "owner" under the innocent owner defense of Wis. Stat. § 961.55(l)(d)2. includes a "co-owner," Vogel is a co-owner and, thus, should receive the protection of the statute to the extent of her ownership interest in the vehicle. To that end, I would remand this forfeiture matter with directions for the circuit court to determine the extent of her interest in the vehicle and to fashion an appropriate remedy taking into account the State's interest in Baumgard's portion of the vehicle and her interest in the vehicle.

The State does not dispute that Baumgard committed the drug offenses without Vogel's knowledge or consent. Wis. Stat. § 961.55(l)(d)2.

I agree with the majority that the analysis of "owner" in Kirch is applicable to the forfeiture statute. Majority, ¶ 6 fn.3.

United States v. Real Prop. & Improvements Located at 5000 Palmetto Drive, 928 F.2d 373, 375 (11th Cir. 1991); United States v. One Parcel of Prop. Located at Route 27, Box 411 (Patterson Rd.), 845 F. Supp. 820, 824 (M.D. Ala. 1993); United States v. One 1986 Chevrolet Monte Carlo, 817 F. Supp. 729, 732 (N.D. Ill. 1993).

Earlier, the U.S. Supreme Court had intimated that the forfeiture of a truly innocent owner's property would raise "serious constitutional questions." Calero-Toledo v. Pearsing Yacht Leasing Co., 416 U.S. 663, 688—89 (1974). In Bennis v. Michigan, 516 U.S. 442 (1996), in reviewing a Michigan forfeiture statute, the Court concluded that lack of an innocent owner defense in the statute did not offend the U.S. Constitution. Id. at 446, 451-53. However, significant for the Court in Bennis was that the Michigan statute gave the trial court "remedial discretion." Id. at 444, 453.

In 2015, Georgia amended its forfeiture law. 2015 Ga. Laws 98.

This language, which is not included in the statutes of the states already discussed, is further evidence of the legislature's desire to protect the rights of innocent persons.

In State v. Fouse, 120 Wis. 2d 471, 355 N.W.2d 366 (Ct. App. 1984), we considered only whether persons who had an unperfected security interest in a vehicle subject to forfeiture could claim protection as "innocent persons" even though such an interest was not enumerated in the statute. We held that they could claim protection. In response to our decision, the legislature amended then Wis. Stat. § 161.55(3) for the express purpose of limiting the rights of innocent persons to those persons delineated in the subdivisions of the statute, including subd. (1)(d)2. State v. One 2010, Nissan Altima, No. 2013AP2176, unpublished slip op. ¶ 14 n.5 (WI App

June 11, 2014). Neither Fouse nor the amendment that followed addressed the issue of whether a co-owner is included within the term "the owner" in subd. (l)(d)2.

I agree with the majority that forfeiture of Baumgard's interest is not an excessive fine.