FORFEITURE--WHAT'S LEFT?

By: Wayne C. Fricke; Dec 1996

          Since the United States Supreme Court held that civil forfeitures are neither punishment nor criminal for purposes of the double jeopardy clause in United States v. Ursery, $405,089.23, 116 S.Ct. 1039 (1996) the area of asset forfeiture has lost one of the most dynamic issues that have existed in recent times.  (Obviously, the one issue remaining in this area is independent State Constitutional analysis, but there is not much promise for a different result.)  In spite of this set-back, many issues remain in litigating forfeiture cases under both state and federal law. 

          All forfeitures remain subject to the Eighth Amendment excessive fines clause.  Thus, those cases where the client is having real and personal property subjected to forfeiture hearings that were arguably used to facilitate manufacturing operations determinations still need to be made in relation to the criminal penalties, as well as the seriousness of the underlying drug transaction.  In conjunction with this, since the excessive fines cases take into consideration the amount of time and expense that the police agency has put into prosecuting the case, it appears that one could use interrogatories and depositions in order to access internal documents to determine the costs of the investigation.  Arguably, where drug operations are busted with little or no investigation (such as a domestic violence call) an attempted forfeiture of the premises would appear to be excessive.  Secondly, the question remains as to what constitutes a "full hearing" under the case of Tellevik vs. Real Property, 125 Wn.2d 364, 884 P.2d 1319 (1995).  The courts appear to be concluding, at least in Pierce County, that the full hearing is satisfied during the preliminary hearing wherein the government normally places a lien on the real property at issue and then sets a trial date for the case beyond the 90 days that is mentioned in Tellevik.  Arguably, this is not a full hearing and is more akin to the arraignment and probable cause hearing in the accompanying criminal case. 

          Finally, in Tellevik v. Real Property, et. al., Washington Court of Appeals Division II, No. 18197-5-II (August 29, 1996), Division II of the Court of Appeals has held that Article 19, Section 1, of the Washington State Constitution (the Homestead Exemption) does not apply to forfeiture proceedings.  This issue still needs to be raised because as of yet the Washington Supreme Court has not ruled whether the Homestead Exemption applies.  According to that exemption the legislature is to set a value that would not be subjected to forfeiture from government agencies.  That amount was initially set at $30,000 by the legislature under RCW 6.13.010.  The Constitution does not restrict its application to property.  Again, however, Division II has ruled that it does not apply in a forfeiture case, but until the Supreme Court rules, the issue remains alive and well.

          In sum, there are many issues that need to be addressed prior to any factual hearing as it relates to asset forfeiture.  Simply because double jeopardy is no longer an issue does not mean that these cases are not winnable under any number of different theories.  It's just more difficult now.