Municipality of Anchorage v. Skagen (6/21/96) ap-1474
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correction before publication in the Pacific
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals Nos. A-5765 & 5795
Petitioner, ) Trial Court No. 3AN-94-2872 Cr
)
v. ) O P I N I O N
)
WILLIAM M. SKAGEN, )
)
Respondent. ) [No. 1474 - June 21, 1996]
______________________________)
Petition for Review from the District Court,
Third Judicial District, Anchorage, William H.
Fuld, Judge.
Appearances: James L. Walker, Assistant
Municipal Prosecutor, Mary K. Hughes, Municipal
Attorney, Anchorage, for Petitioner. Frederick
T. Slone, Kasmar and Slone, Anchorage, for
Respondent.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
William M. Skagen was charged with two violations of the
Anchorage Municipal Code: driving while intoxicated, AMC sec. 9.-
28.020A, and refusing to take a breath test, AMC sec. 9.28.022C.
While Skagen awaited trial, the Municipality commenced a civil
forfeiture proceeding against his automobile pursuant to AMC sec.
9.28.026C. (EN1) Skagen (who was the registered owner of the
vehicle) failed to enter an appearance in the forfeiture action.
As a consequence, the Municipality obtained a default judgement of
forfeiture against the vehicle.
After the vehicle was forfeited to the Municipality,
Skagen filed a motion seeking dismissal of the two criminal charges
pending against him. Skagen asserted that the forfeiture of his
vehicle, based on his acts of driving while intoxicated and refusing
to take the breath test, constituted a "punishment" for double
jeopardy purposes. Because he had already suffered this punishment,
Skagen argued, the double jeopardy clause of the Federal Constitu
tion barred the Municipality from prosecuting him for these two
crimes.
District Court Judge William H. Fuld agreed with Skagen
in part. He ruled that the forfeiture of Skagen's vehicle
constituted a punishment for double jeopardy purposes, but he found
that the vehicle forfeiture had been based solely on Skagen's
refusal to take the breath test, not his act of driving while
intoxicated. For this reason, Judge Fuld dismissed the breath-test
refusal charge but he maintained the driving while intoxicated
charge.
The Municipality filed a petition for review, asking us
to reinstate the breath-test refusal charge. Skagen filed a cross-
petition, asking us to dismiss the driving while intoxicated charge.
We granted both petitions, and we now hold that the Municipality is
entitled to pursue both of the criminal charges.
There is support for Skagen's assertion that the
forfeiture of a vehicle based on criminal acts of the driver
constitutes a "punishment" for federal double jeopardy purposes.
See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699; 85
S.Ct. 1246, 1250; 14 L.Ed.2d 170 (1965), cited in Austin v. United
States, 509 U.S. 602, 113 S.Ct. 2801, 2811; 125 L.Ed.2d 488 (1993),
and United States v. Perez, 70 F.3d 345 (5th Cir. 1995). There is
also legal authority against Skagen. See City of New Hope v. One
1986 Mazda 626, ___ N.W.2d ___ (Minn. App. 1996) (holding that the
forfeiture of a vehicle operated by an intoxicated driver does not
constitute "punishment" for double jeopardy purposes, and that such
a forfeiture can be imposed in addition to the criminal penalties
for DWI); State v. Johnson, 667 So.2d 510 (La. 1996) (holding that
the forfeiture of a vehicle used in drug offenses does not, per se,
constitute "punishment" for double jeopardy purposes þ that, with
the possible exception of extraordinarily valuable vehicles, such
a forfeiture can be imposed irrespective of whether the owner has
already been convicted and sentenced for the drug offenses); State
v. One 1989 Ford F-150 Pickup, 888 P.2d 1036 (Okla. App. 1995)
(indicating that the forfeiture of a vehicle used in drug offenses
does not constitute "punishment" for double jeopardy purposes). See
also United States v. Salinas, 65 F.3d 551, 553-54 (6th Cir. 1995),
and United States v. Tilley, 18 F.3d 295, 300 (5th Cir. 1994), cert.
denied ___ U.S. ___, 115 S.Ct. 574, 130 L.Ed.2d 490 (forfeiture of
property purchased with the proceeds of illegal narcotics transac
tions is not "punishment" for double jeopardy purposes).
Despite the allure of this double jeopardy issue, we
conclude that we need not resolve it to decide Skagen's case. The
federal circuits uniformly hold that, even when the government files
suit to obtain forfeiture of property based on a person's criminal
acts, the double jeopardy clause is not implicated when the
forfeiture is entered by default after the defendant fails to file
an appearance in the forfeiture action and assert an interest in the
property.
For instance, in United States v. Washington, 69 F.3d 401
(9th Cir. 1995), government agents arrested Washington for narcotics
offenses and seized over $1000 from him. When the government
commenced forfeiture proceedings against this money, "Washington
decided [on the advice of counsel] not to file a claim stating his
interest in the seized money". 69 F.3d at 402.
After the money was forfeited to the government,
Washington sought dismissal of the drug charges against him. He
relied on United States v. $405,089.23 in U.S. Currency, 33 F.3d
1210 (9th Cir. 1994), a case in which the Ninth Circuit held that
the forfeiture of money connected with narcotics offenses constitut-
ed "punishment" for double jeopardy purposes, thus prohibiting the
government from later trying the defendant on criminal charges
arising from the same conduct. However, the Ninth Circuit found
that Washington's case was not governed by U.S. Currency:
[While] [c]riminal [prosecution] and civil
forfeiture proceedings based on the same facts
may subject a defendant to double jeopardy[,]
[j]eopardy does not attach ... whenever the
Government seizes property.
In the recent decision in [United States
v.] Cretacci, [62 F.3d 307, 310-11 (9th Cir.
1995)], we concluded that an owner who receives
notice of an intended forfeiture and fails to
claim an ownership interest in the property has
effectively abandoned that interest. Because
abandonment constitutes a relinquishment of all
rights in the property, we held in Cretacci
that the taking of such property imposes no
"punishment" on the former owner and thus does
not place him or her in jeopardy.
. . .
Washington failed to contest the propriety
of the seizure [of the money] by filing a claim
of ownership [or] by filing a petition for
remission or mitigation. Under Cretacci, the
Government's forfeiture of the monies found on
Washington's person therefore imposed no
punishment on him and he thus was never placed
in jeopardy. Accordingly, we reject Washingto-
n's claim that his subsequent criminal prosecu-
tion constitutes double jeopardy.
United States v. Washington, 69 F.3d at 403-04 (citations omitted).
Accord: United States v. James, 78 F.3d 851, 855 (3rd
Cir. 1996); United States v. Wilson, 77 F.3d 105, 111 (5th Cir.
1996); United States v. Pena, 67 F.3d 153, 156 (8th Cir. 1995);
United States v. Ruth, 65 F.3d 599, 603-04 (7th Cir. 1995), cert.
denied, 116 S.Ct. 1548 (1996); United States v. Baird, 63 F.3d 1213,
1217-1220 (3rd Cir. 1995), cert. denied, 116 S.Ct. 909, 133 L.Ed.2d
841 (1996); United States v. Arreola-Ramos, 60 F.3d 188, 192 (5th
Cir. 1995); United States v. Torres, 28 F.3d 1463, 1465-66 (7th Cir.
1994), cert. denied 115 S.Ct. 669, 130 L.Ed.2d 603 (1994).
Skagen, like the defendants in Washington and the cases
cited in the last paragraph, failed to enter an appearance in the
civil forfeiture action. With no one appearing to contest the
forfeiture, the Municipality obtained the vehicle by default. Under
the foregoing cases, Skagen was not placed in jeopardy in the
forfeiture proceeding (because he was never a party to that
proceeding), nor was Skagen "punished" by the forfeiture of the
vehicle (because he failed to claim an interest in it).
Skagen claims that his failure to file an appearance in
the forfeiture action stemmed from the fact that he was never
properly notified of the proceeding. Skagen asserts that the
Municipality sent the notice of impending forfeiture to the wrong
address. Skagen further contends that the Municipality then
compounded its error: having failed to elicit any response through
its letter to Skagen, the Municipality proceeded to serve Skagen by
publication þ but it published the notice in a newspaper in Eagle
River, not in Anchorage where Skagen was residing.
Assuming that Skagen could prove that he never received
proper notice of the forfeiture action, he might be entitled to have
the forfeiture set aside under Civil Rule 60. (EN2) So far,
however, it appears that Skagen has chosen to take no action. Thus,
Skagen's position in the district court (and his position on appeal)
is that he might wish to assert an interest in the vehicle, and he
might be entitled to have the default set aside if he succeeded in
re-opening the forfeiture proceeding. These possibilities remain
speculative because Skagen has done nothing to pursue them.
A judgement remains valid until it is shown to be invalid.
The fact that a person claims that there is a compelling reason to
set aside a judgement does not invalidate that judgement until the
person's claim is proved in a judicial proceeding. See Civil Rule
60(b): "A motion [for relief from judgment] does not affect the
finality of a judgment or suspend its operation." For the present,
both the district court and this court must assume that the default
forfeiture entered against Skagen's vehicle was valid þ that Skagen
received notice, and that he knowingly refrained from claiming an
interest in the vehicle.
Moreover, even if we accepted Skagen's assertions of fact
as true, this would leave Skagen in the position of claiming that
his current criminal prosecution should be deemed a second jeopardy
because Skagen might choose to subject himself to another punishment
in the future. That is, Skagen asserts that he is entitled to have
the forfeiture proceeding re-opened at some future time and, when
it is re-opened, he would be entitled to assert an ownership
interest in the vehicle (an act that could arguably make any renewed
forfeiture order a "punishment" for double jeopardy purposes). None
of these events has occurred yet.
The Ninth Circuit recently considered an analogous case
in United States v. Castro, 78 F.3d 453 (9th Cir. 1996). The
defendant in Castro was charged with drug offenses and he was also
notified that the government would be seeking forfeiture of some
property he owned. Castro filed notice that he intended to contest
the forfeiture, but the notice was filed late and it failed to
include all the necessary forms. The Drug Enforcement Agency
notified Castro of these deficiencies and extended him another
opportunity to contest the forfeiture. Castro refiled the
paperwork, but again it was not in proper form. (Castro failed to
submit his pleadings under oath.) The government informed Castro
that his pleadings were again deficient, and they gave him a third
opportunity to contest the forfeiture. This time, Castro failed to
respond. Castro, 78 F.3d at 454-55.
On appeal from his criminal convictions, Castro argued
that the criminal judgement against him constituted a second
punishment because the government had already obtained forfeiture
of his property. The Ninth Circuit disagreed. "Merely asserting
that the property belonged to him, without complying with the
requirements for filing a claim of ownership, is not legally
sufficient[,]" the court said. Id. at 456. The court additionally
noted that Castro, despite his assertion of ownership, had never
actually sought to re-open the forfeiture proceedings or obtain a
modification of the default judgement:
[The defendant's] failure to file a petition
for remission or mitigation ... reveals that,
even when he had the opportunity to challenge
... the forfeiture and assert his interest, he
weighed the worth of asserting a claim against
any risks associated with doing so and ulti-
mately decided not to assert a claim of owner
ship.
Castro, 78 F.3d at 457.
Skagen, like the defendant in Castro, asserts that he is
the owner of the forfeited property, but he has done nothing to
pursue this asserted ownership interest. The cases unanimously hold
that the default forfeiture of the unclaimed vehicle did not inflict
a punishment on Skagen.
Skagen's double jeopardy claim will not be ripe until such
time, if any, as Skagen chooses to assert an interest in the vehicle
and succeeds in re-opening the forfeiture proceeding. If, at that
time, judgement has already been entered against Skagen on either
or both of the criminal charges, Skagen would have an arguable
double jeopardy defense to the forfeiture. If, on the other hand,
the forfeiture action is re-opened, Skagen unsuccessfully contests
the forfeiture, and the forfeiture is re-imposed before judgement
is entered against Skagen on the criminal charges, then Skagen would
have an arguable double jeopardy defense to any continuation of the
criminal charges.
These potential future scenarios have no bearing on our
resolution of the present case. As things currently stand, Skagen's
vehicle was forfeited by default after Skagen failed to assert an
interest in it, and Skagen has yet to take any action to seek a re-
opening of the forfeiture proceeding. Under these facts, Skagen
must be deemed to have abandoned his interest in the vehicle, and
the default forfeiture of that vehicle did not inflict any
punishment on him. Moreover, Skagen has not been tried on the
criminal charges. Thus, Skagen has not yet been subjected to any
punishment, much less double punishment, for his alleged acts of
driving while intoxicated and refusing the breath test.
We therefore REVERSE the district court's dismissal of the
breath-test refusal charge, and we AFFIRM the district court's
refusal to dismiss the driving while intoxicated charge. We remand
Skagen's case to the district court for further proceedings on these
two criminal charges.
ENDNOTES:
1. This ordinance empowers the Municipality to institute a civil
action seeking impoundment or forfeiture of any motor vehicle "that
[was] operated, driven[,] or in the actual physical control of an
individual arrested for or charged with ... driving while
intoxicated, or ... refusal to submit to [a] chemical [breath]
test[]". In cases in which the vehicle belongs to someone other
than the person who was driving it, the ordinance creates a
presumption that the vehicle was operated "with the knowledge and
consent of the registered owners". The ordinance then continues:
A vehicle so operated [that is, a vehicle
operated by a person who violated either the
driving while intoxicated ordinance or the
breath test refusal ordinance] is declared to
be a public nuisance for which the registered
owners hold legal responsibility[,] subject
only to the defenses ... set forth [below].
The ordinance allows the Municipality to seek a 30-day impoundment
of the vehicle if the driver has not been previously convicted of
either DWI or breath-test refusal. If the driver has previously
been convicted of either of these offenses, the Municipality can
seek forfeiture of the vehicle. AMC sec. 9.28.026A(1).
2. We note, however, that Civil Rule 60 requires such a motion to
be made "within a reasonable time". The forfeiture order was
entered in August 1994, and Skagen was aware of what had happened
at least by February 1995. (On February 10, 1995, Skagen filed a
pleading in the district court asserting that the forfeiture had
occurred without proper notice to him).
