State of Ga. v. Alford

Benham, Presiding Justice,

concurring specially.

While I am in full accord with the majority’s conclusion that this case should be remanded in order that Ms. Alford may be afforded a reasonable time in which to file an amended answer, I respectfully disagree with the majority’s determination in Division 2 that the 60-day period within which the State must hold a forfeiture hearing does not commence until the property owner has filed a “sufficient” answer. I believe the majority’s decision is at odds with the intent of the General Assembly in passing the forfeiture statute, and renders meaningless the statute’s provision concerning a property owner’s right to file an answer to a petition for forfeiture.

The prompt disposition of property subject to forfeiture and the protection of the property interest of an innocent owner are the two legislative intentions that must be balanced under the forfeiture statute. State of Ga. v. Jackson, 197 Ga. App. 619 (1) (399 SE2d 88) (1990). The statute itself provides that it should be liberally construed to effectuate its remedial purpose. OCGA § 16-13-49 (z). See also State v. Henderson, 263 Ga. 508, 509, n. 3 (436 SE2d 209) (1993). In the case at bar, the majority has eschewed liberal construction of the statute and focused only on streamlining the forfeiture proceed*247ing, much to the detriment of the innocent property owner.

Mrs. Alford’s husband pled guilty to criminal charges after law enforcement officers, armed with a search warrant, seized a handgun, cocaine, and $150 cash from the mobile home occupied by the Al-fords. Ninety-five days after the seizure,5 the district attorney filed a complaint for forfeiture of the seized personal property as well as the mobile home and the 8.66-acre tract on which it is located. Mrs. Alford answered, asserting that the real property and mobile home were not subject to forfeiture because she was an innocent property owner. See OCGA § 16-13-49 (e).6 Nine months later, the State sought dismissal of Mrs. Alford’s answer on the ground that it did not comply with OCGA § 16-13-49 (o) (3). No hearing on the complaint for forfeiture was ever held.

While recognizing that OCGA § 16-13-49 (o) (5) requires a hearing within 60 days after the service of the complaint if an answer is filed, the majority posits that an answer is not filed and thus the 60-day period does not commence, unless the document filed is “sufficient,” i.e., the document comports with the requirements of § 16-13-49 (o) (3). .Should an answer be judicially deemed insufficient, as was the case with Mrs. Alford’s answer, the answer is dismissed. Majority opinion, p. 245. As a result, it is as if no answer was ever timely filed, and the trial court is authorized to order the disposal of the seized property without a hearing. OCGA § 16-13-49 (o) (4). The majority opinion opens the door to abuse — a property owner, having filed an answer, prepares for the hearing while the State, under no time constraint, seeks adjudication of the sufficiency of the answer. If the answer is deemed insufficient after the expiration of the 30-day period in which a property owner must file an answer, the property owner is without recourse to stop the trial court from disposing of the property as if no answer had been filed. The majority opinion forces a property owner to file an answer, file a motion seeking adjudication of the sufficiency of that answer, and seek an expedited ruling on the motion in order that she might amend her answer, if found insufficient, prior to the expiration of the 30-day period in which to file an answer. In the alternative, a property owner could protect herself by filing an answer and a sufficiency motion, and immediately seeking a continuance while awaiting a ruling on the sufficiency.7 Such procedural maneu*248vering to safeguard property rights results in the frustration of the other goal of the forfeiture statute — speedy resolution of the disposition of property subject to forfeiture. It stands to reason that many property owners, including innocent owners, contesting the seizure of their property will lose their property without a hearing due to the majority’s draconian statutory interpretation that requires dismissal of an answer eventually deemed insufficient.8

Decided June 6, 1994. Johnnie L. Caldwell, Jr., District Attorney, Lance K. Hiltbrand, *249F. Maxwell Wood, for appellant.

*248Recognizing the procedural dilemma property owners now face and the fact that the Civil Practice Act is applicable to forfeiture, the Court of Appeals has pointed out that the State is not without remedy when faced with what it believes is an inadequate answer: the State could file a motion for a more definite statement under OCGA § 9-11-12 (e), a motion to strike under § 9-11-12 (f), or argue that amendments filed after the expiration of the 30-day period for filing an answer should not be allowed. Alford v. State of Ga., 208 Ga. App. 595, 597 (431 SE2d 393) (1993). See also State of Ga. v. Adams, 212 Ga. App. 881 (443 SE2d 517) (1994). In Henderson v. State, supra at 511, n. 7, this court recognized that the State had the burden of obtaining a dismissal of the answer prior to the expiration of the 60-day hearing period, or obtaining a continuance if it could not have a hearing within the 60-day period. The majority has now removed the burden from the State and placed it on the backs of property owners whose personalty and realty has been seized by the government.

I would suggest that, if the majority is going to interpret § 16-13-49 (o) (3) as it has, a fairer, more equitable interpretation of the forfeiture statute as a whole results if the majority would also hold that the filing of the answer tolls the running of the 30-day period in which to file an answer, should an attack on the sufficiency of the answer be launched by the State. That way, a property owner faced with a judicial determination of insufficiency would be able to amend her answer in a timely fashion, thereby avoiding judicial disposition of the property as if there were no answer. See OCGA § 16-13-49 (o) (4).

I am authorized to state that Justice Sears-Collins joins in this special concurrence. *249Guy J. Notte, Cathy M. Alterman, for appellees.

But see OCGA § 16-13-49 (h) (2), which requires that a complaint for forfeiture be filed within 60 days from the date of seizure. If forfeiture proceedings are not timely initiated, “the property must be released on the request of an owner or interest holder. . . .” OCGA § 16-13-49 (h) (3).

Mrs. Alford apparently owned the land and the mobile home prior to her marriage to Mr. Alford in 1984.

By placing on a respondent/property owner the burden of inquiring when an answer is “sufficient,” the majority has implicitly shifted that burden from where it normally rests, on *248the opposing party.

In addition to wreaking havoc with the pleading process in a forfeiture case, the majority’s incorporation within the statute of a requirement that an answer be “sufficient” adds another tier of scrutiny by a superior court bench already over-burdened.