No. 94-225
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MATTER OF DANIEL L. MAGONE,
SHERIFF, MISSOULA COUNTY, STATE OF MONTANA,
Petitioner and Respondent,
-VS-
DANIEL RICHARD FROEHLICH,
Respondent,
LaDONNA FROEHLICH,
Respondent
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anne Hamilton, ASUM Legal Services, Missoula,
Montana
Margaret Borg, Public Defender's Office,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Ass't Attorney General
Helena, Montana
Robert L. Deschamps, III, Missoula County Attorney,
Karen S. Townsend, Deputy County Attorney,
Missoula, Montana
Submitted on Briefs: January 12, 1995
Decided: March 30, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
LaDonna Froehlich (LaDonna) appeals from the findings of fact,
conclusions of law and order of the Fourth Judicial District Court,
Missoula County, denying her motion to vacate an order forfeiting
three rifles and one shotgun. We reverse, concluding that LaDonna
did not receive the service of summons and petition for forfeiture
to which she was entitled under § 44-12-201(l), MCA, and that
neither actual notice of the forfeiture hearing nor subsequent
intervention cured the lack of required service.
We restate the issues on appeal as follows:
1. Was LaDonna entitled to service of summons and
petition for forfeiture as provided in § 44-12-201, MCA,
as a known owner or claimant of the property for which
forfeiture was sought?
2. Did any actual notice by LaDonna of the September 10,
1993, forfeiture hearing relieve the necessity of
compliance with § 44-12-201(l), MCA?
3. Was the State's failure to provide the statutorily
required notice remediable by the District Court allowing
LaDonna to intervene after the original order of
forfeiture was entered?
The underpinnings of this appeal began with a 1990 law
enforcement investigation of Daniel Froehlich (Daniel), LaDonna's
estranged husband. The investigation culminated in December 1990,
with an undercover purchase of LSD in Daniel's home. After
arresting Daniel, the Missoula City Police, Missoula County Sheriff
and Montana Criminal Investigation Bureau searched his residence
and seized property. LaDonna claims to have been present at the
time of the search and seizure. The four guns at issue in this
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case were among the property seized.
The Missoula County Sheriff, represented by Deputy County
Attorney Karen Townsend (Townsend), filed a petition seeking
forfeiture of the guns and other seized property on December 31,
1990. Daniel was served with summons and a copy of the petition as
required by § 44-12-201, MCA. In his answer, Daniel claimed that
he and LaDonna had purchased the guns for hunting and paid for them
with his employment wages. The forfeiture hearing regarding the
guns ultimately was scheduled for September 10, 1993.
Prior to the September 10, 1993 hearing, Daniel telephoned
LaDonna and told her that he was being transferred to the Missoula
County Courthouse for a hearing he believed was related to
forfeiture of the guns. LaDonna then left a handwritten note with
Townsend--who had represented the State of Montana (State) in other
proceedings against Daniel--at the County Attorney's office. In
LaDonna's note, she asserted ownership of the guns and expressed
interest in the forfeiture proceeding she thought might be
occurring that day. She also included information about where she
could be reached throughout the day.
Townsend represented the State at the September 10, 1993,
forfeiture hearing regarding the guns. She had read LaDonna's note
and showed it to Daniel's counsel before the hearing began; neither
counsel notified the court of the note or its contents. Three law
enforcement officers testified in support of the petition's claim
that the guns were used to protect or facilitate Daniel's drug
distribution operation. Daniel testified that he and LaDonna had
purchased the guns "for our children . . to hunt and shoot them
[sic] . . .I' Following the hearing, the District Court ordered
the guns forfeited.
LaDonna obtained counsel after learning that the guns had been
ordered forfeited. She moved to intervene in the forfeiture
proceedings, for a temporary restraining order to prevent final
disposition of the property and to have the forfeiture order
vacated. Among other things, LaDonna asserted that:
All owners or claimants of seized property are to be
notified of any forfeiture hearings. Montana Code
Annotated 5 44-12-201. Missoula County had notice that
LaDonna Froehlich claimed an interest in said property.
LaDonna Froehlich received no notice regarding the
hearing of forfeiture.
On December 1, 1993, the District Court held a hearing on
LaDonna's motions. The court took the motion to intervene under
advisement and received testimony from LaDonna. LaDonna stated
that she first informed law enforcement authorities that she owned
the guns during their search of Daniel's home in December 1990.
She stated that the authorities again became aware of her claimed
ownership interest in the guns through various other events,
culminating in her September 10, 1993, note to Townsend. No
testimony or evidence was offered in response. Townsend and
Daniel's public defender verified that they had read, but failed to
advise the court of, LaDonna's note prior to the September 10,
1993, forfeiture hearing.
Following the hearing on LaDonna's motions, the District Court
entered its findings of fact, conclusions of law and order granting
LaDonna's motion to intervene and denying her motion to vacate.
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The court again ordered the guns forfeited. LaDonna appeals.
1 . Was LaDonna entitled to service of summons and
petition for forfeiture as provided in § 44-12-201(l),
MCA, as a known owner or claimant of the property for
which forfeiture was sought?
The District Court concluded that LaDonna did not present a
claim to the guns as required by statute until after completion of
the forfeiture proceeding. In Montana, the forfeiture of property
related to drug offenses is authorized and governed by Title 44,
Chapter 12, MCA. Within 45 days following the seizure of such
property, a petition to institute forfeiture proceedings must be
filed; summons and a copy of the petition must be served on all
owners or claimants of the property. Section 44-12-201, MCA.
Personal service is required when the name and address of the owner
or claimant is known. Section 44-12-201(l), MCA.
At the outset, we observe that the District Court's conclusion
that LaDonna did not present a claim to the guns as required by
statute is susceptible of two interpretations. The conclusion
could be read as a determination that the forfeiture statutes
require an owner or claimant to affirmatively present a claimed
interest in the property via bills of sale or title documents prior
to the point at which obligations regarding service of summons are
imposed on the State. Alternatively, the conclusion could be
interpreted as a determination that LaDonna was not a known owner
or claimant at any time prior to the forfeiture hearing.
Because nothing in the forfeiture statutes corresponds to the
first interpretation, that an owner or claimant has an affirmative
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duty to "present a claim," we read the District Court's conclusion
as determining that LaDonna was not a known owner or claimant at
any time prior to the September forfeiture hearing and, therefore,
that she was not entitled to service as required by § 44-12-201,
MCA. We review a district court's conclusions of law regarding the
application of a statute to determine whether the court's
interpretation of the law is correct. State v. Henning (1993), 258
Mont. 488, 490-91, 853 P.2d 1223, 1225; citing Steer, Inc. v. Dep't
of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
LaDonna argues that the District Court erred in concluding
that she was not a known claimant. She contends that the State
knew, or should have known, of her claimed interest in the guns as
early as the search of Daniel's property in December of 1990 and at
various times thereafter, including the day of the forfeiture
hearing when she left her note for Townsend. On that basis,
LaDonna contends she was entitled to service of summons and the
petition pursuant to § 40-12-201, MCA.
The State acknowledges that we have mandated strict compliance
with the procedural requirements of Montana's forfeiture statutes.
See State v. 1978 LTD II (1983), 216 Mont. 401, 404-05, 701 P.2d
1367-68. Rigid adherence to the statutory safeguards is necessary
because of the extraordinary nature of the forfeiture statutes in
permitting seizure of private property prior to a factfinding
hearing. LTD II, 701 P.2d at 1367. It is the summons which
informs an owner or claimant of the necessity of answering the
petition within 20 days as required by § 44-12-202, MCA; an owner's
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or claimant's failure to answer timely ordinarily bars him or her
from presenting evidence at the forfeiture hearing. See § 44-12-
202, MCA.
The State also admits that it did not serve LaDonna with
notice of the forfeiture proceedings pursuant to § 40-12-201, MCA.
The State argues, however, that neither the statutory service
requirements nor LTD II is applicable here because, as the District
Court determined, LaDonna was not a known claimant prior to the
September 10, 1993, forfeiture hearing.
LaDonna claims to have notified the State of her ownership
interest in the guns when they were seized during the search of
Daniel's home in December, 1990. She also claims the State was
made aware of her interest through Daniel's answer to the
forfeiture petition, through testimony at a 1991 forfeiture hearing
regarding other seized property and as a result of the note she
left for Townsend on September 10, 1993. The State vigorously
disputes having any knowledge of LaDonna's claimed interest in the
guns prior to her September note to Townsend.
The term "known owner or claimant" is not defined in § 44-12-
201, MCA. In construing the meaning of a statute, we presume the
terms and words used were intended to be understood in their
ordinary sense. Gaustad v. City of Columbus (1994), 265 Mont. 379,
381, 877 P.Zd 470, 471 (citation omitted). A common definition for
the term "owner" is "one who has dominion over a thing, real or
personal. . , which he has a right to enjoy and do with as he
pleases." Black's Law Dictionary, page 1105, (6th Ed. 1990). A
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"claimant" is one who asserts a right, demand or claim. Black's
Law Dictionary, page 247, (6th Ed. 1990).
Adding these everyday meanings to the statutory service
requirements, we conclude that the District court erred in
determining that LaDonna was not a known claimant at any time prior
to the forfeiture hearing on September 10, 1993. In so concluding,
we need not address each point in time at which LaDonna contends
her claim was known to the State; nor is it necessary to ascertain
a precise point in time during the early stages of this forfeiture
proceeding at which the State had the requisite knowledge of
LaDonna's claim regarding the guns. Our discussion is limited to
the events of December 18, 1990, and September 10, 1993.
LaDonna testified that the State was first aware of her claim
to the guns via a conversation between herself and Detective
Harbison during the search of Daniel's residence and seizure of the
guns and other property on December 18, 1990. According to
LaDonna, she told Detective Harbison at that time that she had
purchased the guns, that they were legally hers, and that she had
bills of sale for them.
No testimony or other evidence was presented to controvert
LaDonna's statements. The State contends that the District Court,
having found other portions of LaDonna's testimony incredible, also
was free to reject this testimony that the conversation occurred.
Indeed, it appears that the District Court necessarily,
although impliedly, rejected LaDonna's testimony in this regard;
only by doing so could the court have concluded that she was not a
8
known claimant. The court certainly is free to weigh credibility
and evidence and we will not substitute our judgment for that of
the trial court. Hagen v. Dow Chemical Co. (1993), 261 Mont. 487,
494, 863 P.2d 413, 418. For that reason, we do not conclude that
LaDonna was a known claimant by virtue of the alleged December 18,
1990, conversation.
The State's other contention regarding LaDonna's testimony in
this regard is, however, troubling. The State argues that, even if
the conversation took place, it does not support LaDonna's position
that she was entitled to notice of the forfeiture proceedings.
This is so, argues the State, because the conversation "was clearly
held in passing" and related more to the question of whether the
guns were stolen than to the identity of the actual owner. We
cannot approve of the State's cavalier attitude about what
constitutes notice of a claimed interest in property for which
forfeiture is sought. If the conversation occurred, it would
constitute a claim of interest in the guns by LaDonna because
LaDonna asserted a right to the guns. Accepting the State's
position that it was merely a conversation "in passing" which would
not support a claimed interest would impermissibly shift the
initial burden under the forfeiture statutes to those claiming
interest, rather than strictly requiring the State to serve known
claimants. We will not countenance such a result where ex parte
seizures of private property are at issue. See LTD II, 701 P.2d at
1367-68.
Unlike the events of December 18, 1990, the events of
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September 10, 1993, regarding LaDonna's note to Townsend are not
vigorously disputed. Townsend represented to the court that
LaDonna left the following note for her before the forfeiture
hearing on the guns:
LaDonna Froehlich
1302 Phillips
Y/10/93
Karen Townsend,
This note is in reference to Daniel R. Froehlich.
He was transported from MSP for a hearing today. I do
not know what its [sic] about. I would like you to have
this information in case the hearing was for a forfeiture
of firearms seized Dec. 18, 1990 at Daniel's home.
At the time Daniel was in possession of the firearms
to hunt with. The guns are in reality of my ownership
[sic]. I have receipts for the guns and I also know that
these guns were not illegal, as in stolen.
The guns were purchased originally for my children,
when they were old enough to go hunting. I only allowed
Daniel to use them as he did not own any guns.
I don't want to talk to Dan or see him as I'm trying
to get a divorce from him. If you have any questions of
me 1'11 be at school, U of M, until 5pm [sic] and then
I'll be at Tower Pizza, 543-6112, where I'll be working.
If the case today was not in reference to this, then
1'11 need no information.
Thanks for your time,
LaDonna Froehlich
The State concedes that Townsend received and read the note prior
to the September 10 forfeiture hearing. In addition, LaDonna's
testimony that she turned the bills of sale over to someone at the
County Attorney's office who returned them to her was undisputed.
Considered in relation to the common definition of "owner" and
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"claimant," the words "the guns are in reality of my ownership"
clearly convey a claim to the guns. The State's only argument
relating to the note is that, taking the note and LaDonna's later
testimony about the note together, LaDonna's story is
"contradictory, confusing and incredible." The flaw in the
argument, however, is that it is the note itself that gave the
State notice that LaDonna was a known claimant; nothing in the note
is contradictory, confusing or incredible. The State may not
"undo" clear notice provided at a specific point in time by relying
on testimony given three months later. We conclude that at least
as of the day of the forfeiture hearing, but before the hearing
began, LaDonna was a known owner or claimant of the property.
Having concluded that LaDonna was a known claimant, we come
full circle to our LTD II holding mandating strict compliance with
the procedural requirements of the forfeiture statutes. Section
44-12-201, MCA, required the State to serve LaDonna with summons
and a copy of the petition before proceeding with the forfeiture of
the guns. If the owner or claimant's name and address are known,
personal service is required. Section 44-12-201(l), MCA.
LaDonna's note articulated her full name, address, work location
and telephone number; thus, her name and address were known. We
conclude, therefore, that 5 44-12-201(l), MCA, required the State
to serve LaDonna personally prior to the forfeiture hearing.
2. Did any actual notice by LaDonna of the September 10,
1993, forfeiture hearing relieve the necessity of
compliance with § 44-12-201(l), MCA?
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The District Court found that, while LaDonna was not served or
given formal notice of the forfeiture proceeding, she had actual
knowledge of the September 10, 1993 forfeiture hearing. LaDonna
argues that this finding is erroneous both factually and legally.
For purposes of analysis, we accept the court's finding that
LaDonna had actual notice of the hearing and address the legal
question of whether actual notice cured the failure to serve her
personally as required by 5 44-12-201(l), MCA.
As discussed above, the legislature has expressly provided for
notice via personal service of process on known claimants to
property for which forfeiture is sought. Section 44-12-201(l),
MCA. The language of the statute--that owners and claimants of the
property"'shal1 'I be served--is mandatory. See Gaustad, 877 P.2d at
471; LTD II, 701 P.2d at 1367. Nothing in the forfeiture statutes
provides for alternative or substitute notice. We may not insert
into statutory enactments provisions omitted therefrom. Section l-
2-101, MCA.
Moreover, our LTD II mandate of strict compliance and rigid
adherence to the procedural safeguards contained in forfeiture
statutes is even more compelling in the case presently before us
than it was in LTD II. There, the statutorily required notice was
given, but was defective in that it did not advise the person
served that an answer was required within 20 days. We refused to
allow the State to cure the defect by amending the notice of
intention to institute forfeiture and, in effect, recommencing the
forfeiture proceeding. LTD II, 701 P.2d at 1368.
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Here, LaDonna received no notice at all pursuant to § 44-12-
201, MCA. As a result, she--like the respondent in LTD II--was
never advised of the necessity of filing a timely answer under §
44-12-202, MCA, in order to protect her claimed interest in the
guns. Even with actual notice of the hearing, § 44-12-202, MCA,
likely would have precluded her from presenting evidence or
asserting her interest at the September 10, 1993, forfeiture
hearing because she had not timely filed an answer to the petition
for forfeiture. As we stated in LTD II, "[tlhe interests of the
possibly innocent owner should likewise be protected by strict
compliance with the procedural mandate of the statute." LTD II,
701 P.2d at 1368 (citation omitted).
We will not stand idly by and allow known, and possibly
innocent, owners or claimants to have their property forfeited for
failure to serve a summons and copy of the petition as expressly
required by § 44-12-201, MCA. We conclude, therefore, that actual
notice of a forfeiture hearing by a known claimant or owner does
not relieve the necessity of compliance with § 44-12-201, MCA.
3. Was the State's failure to provide the statutorily
required notice remediable by the District Court allowing
LaDonna to intervene after the original order of
forfeiture was entered?
As a final matter, we consider whether the District Court's
granting of LaDonna's motion to intervene remedies the State's
failure to strictly comply with the requirements of § 44-12-201(l),
MCA. LaDonna contends that the State's failure to serve her was a
"fatal flaw" requiring dismissal of the forfeiture proceeding. The
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State argues that the opportunity to testify at the intervention
hearing provided her with an adequate mechanism to challenge the
forfeiture and assert her rights. By way of background, we note
that the guns were seized on December 18, 1990, the forfeiture
hearing was not held until September 10, 1993, and the original
order of forfeiture was entered November 2, 1993. LaDonna's
intervention motion was granted on January 25, 1994. By that time,
the guns had been in the State's possession for more than three
years. The State argues that the intervention provided sufficient
protection of LaDonna's interests. We disagree.
Forfeiture statutes are extraordinary measures. "The very
exercise of the seizure and forfeiture statutes by the State is a
serious infringement on the rights of the party whose property is
seized without a hearing." LTD II, 701 P.2d at 1368. The only
justification for allowing such a procedure at all is because "it
is considered a significant weapon in the battle against drug
trafficking." LTD II, 701 P.2d at 1368.
Where the mere initiation of forfeiture proceedings is a
serious infringement on the property owner's rights, the extent of
the infringement on LaDonna's rights which occurred here simply by
virtue of the length of time the State had control over the seized
property in which she claimed an interest can hardly be quantified.
In LTD II, where the time periods were relatively short, we refused
to allow the State to cure its defective notice; such a cure would
have increased the delay in proceeding against the property at the
price of prejudicing the owner's rights. LTD II, 701 P.2d at 1368.
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Instead, we affirmed the district court's dismissal of the
forfeiture proceeding where a possibly innocent owner's rights were
prejudiced by the State's failure to comply with mandatory
statutory requirements. The same result is even more compelling
here, given the total absence of notice and the inordina.te length
of time during which the State had control of the guns.
In addition, it is clear that the forfeiture procedure imposes
stringent limitations on the party whose property is seized,
including a rebuttable presumption of forfeiture and the limited
proof allowed to rebut the presumption. Sections 44-12-203 and 44-
12-204, MCA. Adopting the State's position would maintain those
stringent limitations on property owners or claimants while, at the
same time, excusing the necessity of its own strict compliance with
the service requirements contained in 5 44-12-201, MCA. We
rejected such a one-sided interpretation of the forfeiture statutes
in LTD II, indicating that the requirements placed on property
owners or claimants "must be enforced so as to avoid, to the
greatest extent possible, prejudicing the rights of the party
against whom they are directed." LTD II, 701 P.2d at 1368.
Enforcing the requirements of the forfeiture statutes when they may
adversely impact owners or claimants while simultaneously not
enforcing those statutes when they may adversely impact the State--
as the State would have us do--would not in any way meet our
obligation to enforce the statutory requirements so as to avoid
prejudicing the rights of property owners or claimants.
Allowing an intervention subsequent to a court-ordered
15
forfeiture of property to replace strict compliance by the State
with the requirements of § 44-12-201, MCA, would essentially gut
the statute, encourage the State to "not know" of a clearly
asserted claim to the property and, as a result, significantly
prejudice the claimant's rights by shifting the entirety of the
burden to the claimant. The extent of the prejudice would far
exceed the prejudice to the rights of a possibly innocent owner
that we refused to countenance in LTD II. Nor are we persuaded by
the State's arguments that we should depart from the LTD II remedy
here. The State argues that the District Court's approach in
allowing LaDonna to intervene was reasonable and procedurally
sound. We do not disagree that the court did what it could to
protect LaDonna's interests given the position in which it was
placed by the State's failure to properly serve LaDonna as required
by § 44-12-201, MCA. We conclude, however, that the State's
failure to provide the statutorily-mandated notice was not
remediable by the District Court allowing LaDonna to intervene
after it had ordered the forfeiture of the guns.
Reversed and remanded with instructions to vacate the order of
forfeiture and dismiss the forfeiture proceedings involving the
guns.
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