NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN K. DAVIS, )
) Court of Appeals No. A-6318
Appellant, ) Trial Court No. 3AN-95-1273 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1548 - September 19, 1997]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Stephanie Rhoades, Judge.
Appearances: Michael B. Logue, Gorton &
Associates, Anchorage, for Appellant. James L. Walker, Assistant
Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Rabinowitz, Senior Supreme Court Justice.
MANNHEIMER, Judge.
The Municipality of Anchorage undertook an in rem
forfeiture proceeding against a vehicle owned by John K. Davis.
This forfeiture action was prosecuted under former Anchorage
Municipal Code (AMC) 9.28.026, an ordinance which declared that any
vehicle operated by an intoxicated driver, or any vehicle operated
by a driver who refused to submit to a breath test, was subject to
forfeiture as a "public nuisance". Based on proof that Davis had
driven while intoxicated and had refused to submit to a breath test,
the Municipality obtained forfeiture of Davis's vehicle. The
Municipality also pursued criminal charges against Davis for these
same two offenses.
In this appeal, Davis contends that once the Municipality
secured forfeiture of his vehicle in the civil proceeding, the
double jeopardy clauses of the federal and the Alaska constitutions
prohibited the Municipality from pursuing the criminal charges
against him. For the reasons explained in this opinion, we hold
that the Municipality was entitled to pursue both the in rem
forfeiture action and the criminal charges. [Fn. 1]
Facts of the case
Davis was arrested in Anchorage on February 17, 1995, for
driving while intoxicated and refusing to submit to a breath test.
His vehicle, a 1982 Ford, was seized at the time of his arrest.
While Davis awaited trial on the two criminal charges, the
Municipality pursued an in rem forfeiture action against the
vehicle, and on May 12, 1995, Davis's vehicle was declared forfeit
to the Municipality.
Davis asked the district court to dismiss the still-
pending criminal charges. He argued that the forfeiture of his
vehicle amounted to a "punishment" for his acts of driving while
intoxicated and refusing the breath test. Davis further contended
that, because he had been punished once for these acts (by the
forfeiture of his vehicle), the constitutional guarantees against
double jeopardy prohibited the government from punishing him again
for the same acts (by imprisonment or fine in the criminal case).
See the Fifth Amendment to the United States Constitution and
Article I, Section 9 of the Alaska Constitution.
The district court rejected Davis's arguments and refused
to dismiss the criminal charge. Davis then pleaded no contest to
driving while intoxicated, preserving his double jeopardy argument
for appeal. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska
1974).
The forfeitures imposed under former AMC 9.28.026 were
in rem forfeitures
In his brief to this court, Davis renews his argument that
the forfeiture of his vehicle was a "punishment" for double jeopardy
purposes. Under the United States Supreme Court's decision in
United States v. Ursery, 518 U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d
549 (1996), it is clear that forfeiture of a person's property in
an in rem civil forfeiture proceeding does not constitute
"punishment" for purposes of the federal double jeopardy clause.
Davis attempts to avoid this result by arguing that vehicle
forfeiture proceedings under former AMC 9.28.026 were not really in
rem proceedings, but were instead in personam forfeitures, a type
of forfeiture generally recognized as "punishment". See Ursery, 116
U.S. at 2147 (majority opinion) and at 2150-51 (concurring opinion
of Justice Kennedy).
The law distinguishes between in personam forfeitures,
which are inflicted as punishment for a crime, and in rem
forfeitures, which can be inflicted on property owners who are
themselves innocent of crime, if the government proves that the
property is contraband or is connected to the commission of a
criminal act. See Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 684; 94 S.Ct. 2080, 2092; 40 L.Ed.2d 452 (1974); The
Palmyra, 12 Wheat. 1, 14-15; 6 L.Ed. 531 (1827).
For instance, this court recently decided a case in which
a defendant was subjected to an in personam forfeiture of his
vehicle. See Hillman v. Anchorage, Opinion No. 1539 (Alaska App.,
June 20, 1997). In Hillman, the defendant's vehicle was forfeited,
not in a separate civil action, but at his sentencing for driving
while intoxicated. The forfeiture was imposed as part of the
defendant's sentence pursuant to former AMC 9.28.020(C) (the
statutory provision defining the penalties for driving while
intoxicated), and the legal basis for the forfeiture was that the
defendant had been found guilty of a crime.
Such in personam forfeitures, imposed as part of a
person's penalty for violating a criminal statute, must be
distinguished from in rem forfeitures, which do not depend upon
proof that the property owner is guilty of a crime, but which are
based on proof that the property is contraband or is connected to
or derived from some dangerous or unlawful activity. This distinc-
tion was explained in some detail by Justice Kennedy in his
concurring opinion in Ursery:
The key distinction is that the
instrumentality-forfeiture statutes are not directed at those who
carry out the crimes, but at owners who are culpable for the
criminal misuse of the property. See Austin [v. United States, 509
U.S. 602,] 619, 113 S.Ct. [2801,] 2810-2811 [(1993)] (statutory
"exemptions serve to focus the provisions on the culpability of the
owner"). The theory [of in rem forfeiture] is that the property,
whether or not illegal or dangerous in nature, is hazardous in the
hands of this owner because he either uses it to commit crimes, or
allows others to do so. The owner can be held accountable for the
misuse of the property. Cf. One 1958 Plymouth Sedan [v.
Pennsylvania, 380 U.S. 693,] 699, 85 S.Ct. [1246,] 1250[, 14 L.Ed.2d
170 (1965)] ("There is nothing even remotely criminal in possessing
an automobile. It is only the alleged use to which this particular
automobile was put that subjects [the owner] to its possible loss.")
... Since the punishment befalls any propertyholder who cannot
claim statutory [exemption], whether or not he committed any
criminal acts, [the forfeiture] is not a punishment for a person's
criminal wrongdoing.
Forfeiture, then, punishes an owner by
taking property involved in a crime[.] [I]t may happen that the
owner is also the wrongdoer charged with a criminal offense. But
the forfeiture is not a second in personam punishment for the
offense[.]
Ursery, 116 S.Ct. at 2150.
In Ursery, the Supreme Court reaffirmed that the govern-
ment may pursue "parallel in rem civil forfeiture actions and
criminal prosecutions based upon the same underlying events". The
Court noted that, "in a long line of cases", it had "considered the
application of the Double Jeopardy Clause to civil forfeitures" and
had "consistently conclud[ed] that the Clause does not apply to such
actions because they do not impose punishment." Ursery, 116 S.Ct.
at 2140.
The question then, for double jeopardy purposes, is to
distinguish civil in rem forfeitures from forfeitures that are
"intended as punishment, so that the proceeding is essentially
criminal in character". Ursery, 116 S.Ct. at 2141, quoting United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 362; 104
S.Ct. 1099, 1105; 79 L.Ed.2d 361 (1984). To answer this question,
the Ursery Court reviewed its past decisions in this area
specifically, Various Items of Personal Property v. United States,
282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931), One Lot [of]
Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34
L.Ed.2d 438 (1972) (per curiam), and United States v. One Assortment
of 89 Firearms, supra and then reaffirmed the two-part analysis
it had used in those cases:
First, [a court must] ask whether [the legisla-
ture] intended proceedings under [the forfei-
ture statute] to be criminal or civil. Second,
[a court must] consider whether the [forfeiture] proceedings are so
punitive in fact as to "[demonstrate] that [they] may not
legitimately be viewed as civil in nature," despite [the
legislature's] intent. 89 Firearms, 465 U.S., at 366, 104 S.Ct.,
at 1107.
Ursery, 116 S.Ct. at 2147. Using this analysis as a guide, we
conclude that the vehicle forfeitures imposed under former AMC 9.-
28.026 were in rem forfeitures, and that forfeiture proceedings
under that ordinance were civil, not criminal.
Under subsection C(3) of the ordinance, a vehicle
allegedly used in connection with either of the two specified
offenses (driving while intoxicated or breath test refusal) could
be seized and held for impoundment or forfeiture proceedings even
if no criminal charges were ever filed against the driver. In fact,
seizure of the vehicle apparently did not depend on whether the
court could obtain in personam jurisdiction over the driver.
Subsection C(3) provided that any court "having jurisdiction over
the motor vehicle" could issue an order for seizure of the vehicle
if the government demonstrated probable cause to believe that the
vehicle was forfeitable under AMC 9.28.026. The same subsection
declared that, even in the absence of an arrest, a police officer
who had probable cause to believe that a vehicle was forfeitable
could temporarily seize the vehicle and hold it for up to 2 days (so
that a court order could be obtained to authorize a longer seizure).
Moreover, under subsection A(6), even when criminal charges were
filed against the driver, the court presiding over the forfeiture
action (and not the court presiding over the criminal action)
remained in control of the vehicle: "Any requests for release of
a vehicle during the pendency of [the] in rem action" had to be
"brought in the forum of the in rem action".
Forfeiture under former AMC 9.28.026 was not premised on
whether the driver of the vehicle had been convicted of a crime.
Rather, subsection A(11) declared that it was "not a defense to an
in rem proceeding brought under [AMC 9.28.026]" that the person in
possession of the vehicle was acquitted or was convicted of a lesser
offense. And, under subsection A(3), it was likewise no defense
that a criminal proceeding against that person remained unresolved.
Once the Municipality established by a preponderance of the evidence
that the vehicle had been used in connection with one of the two
specified offenses, subsection A(7) allowed only one defense to
forfeiture that the vehicle owner "[was not] in possession of the
vehicle and [was not] responsible for ... the act which resulted in
the impound[ment] or forfeiture", and that the vehicle owner "did
not know or have reasonable cause to believe" that the other person
would operate the vehicle in violation of the law.
This analysis of former AMC 9.28.026 demonstrates that its
forfeiture provisions were squarely aimed at "owners who [were]
culpable for the criminal misuse of [their vehicle]", and that the
forfeiture imposed by this ordinance was based on proof that the
vehicle was "hazardous in the hands of this owner because either he
use[d] it to commit crimes, or allow[ed] others to do so". Ursery,
116 S.Ct. at 2150. The Anchorage Municipal Assembly plainly
intended the forfeiture provisions to be civil, and our analysis of
those provisions demonstrates that those provisions are not "so
punitive in fact" as to belie that civil categorization. Ursery,
116 S.Ct. at 2147.
We therefore hold that forfeitures imposed under former
AMC 9.28.026 were civil in rem forfeitures. It follows that vehicle
forfeitures under former AMC 9.28.026 were not "punishments" for
purposes of the federal double jeopardy clause. Ursery, supra.
Under federal constitutional law, the forfeiture of Davis's vehicle
did not bar the Municipality of Anchorage from prosecuting Davis for
the crimes of driving while intoxicated and refusing a breath test.
Davis's argument under the Alaska Constitution
Davis argues that, even if the forfeiture of his vehicle
did not constitute a "punishment" under federal double jeopardy law,
we should interpret the Alaska double jeopardy clause differently.
Davis cites Whitton v. State, 479 P.2d 302, 310 (Alaska 1970), in
which the Alaska Supreme Court refused to follow federal precedent
and instead adopted a different test for deciding when a defendant's
violation of two criminal statutes constitutes the "same offense"
for double jeopardy purposes.
However, as we noted both in State v. Zerkel, 900 P.2d 744
(Alaska App. 1995), and in Aaron v. Ketchikan, 927 P.2d 335 (Alaska
App. 1996), the fact that a clause of the Alaska Constitution has,
on occasion, been interpreted differently from the corresponding
provision of the federal Constitution does not mean that we are at
liberty to ignore federal precedent at will. When a party asserts
that a provision of the Alaska Constitution should be construed
differently from its close federal counterpart, that party bears the
burden of demonstrating "something in the text, context, or history
of the Alaska Constitution that justifies this divergent
interpretation". Zerkel, 900 P.2d at 758 n.8, citing Abood v.
League of Women Voters, 743 P.2d 333, 340-43 (Alaska 1987); Aaron,
927 P.2d at 336.
Davis does not satisfy the requirement established in
Abood, Zerkel, and Aaron. He argues that the Alaska Supreme Court
has not followed federal law in defining "same offense" (viz., the
Whitton decision), and he argues that the concept of double jeopardy
should not be "static". But even acknowledging this to be true,
Davis does not explain why civil forfeiture of a vehicle used by an
intoxicated driver should be considered "punishment" under the
Alaska Constitution. Under AMC 9.28.026, the Municipality of
Anchorage was authorized to institute a civil action to obtain
forfeiture of movable property that was used as the instrumentality
of a criminal offense. Such forfeitures have a long tradition in
Anglo-American law, and they traditionally have been viewed as non-
criminal. The United States Supreme Court's decision in Ursery
affirms this traditional view. Davis asks us to reject the analysis
in Ursery, but he provides hardly any critique of the legal
reasoning underlying that decision.
We recognize that, in recent times, both the Congress and
various state legislatures have greatly increased the scope and
severity of in rem forfeitures in an attempt to deter not only
criminals but also non-criminals who countenance the use of their
property by criminals. See Justice Stephens's dissent in Ursery,
116 S.Ct. at 2153. There are constitutional limits to such
forfeitures; in rem forfeitures are governed by the Eighth
Amendment's prohibition on excessive fines. Austin v. United
States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993).
Moreover, it is possible that the Alaska Constitution may place
additional limitations on forfeitures of non-traditional scope or
severity. However, Davis's case does not raise these issues.
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
Since the time of this litigation, the Municipality of
Anchorage has amended AMC 9.28.026. The current version of the
ordinance contains several changes that are arguably material to a
double jeopardy analysis. We express no opinion concerning the
current version of AMC 9.28.026.
