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v. State (10/13/00) sp-5320
Waiste v. State (10/13/00) sp-5320
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN WAISTE and GEORGE RYAN, )
) Supreme Court No. S-8068
Appellants, )
) Superior Court No.
v. ) 3AN-94-6001 CI
)
STATE OF ALASKA and DONALD W. )
BUNSELMEIER, individually ) O P I N I O N
and in his official capacity, )
) [No. 5320 - October 13, 2000]
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Brian C. Shortell, Judge.
Appearances: Andrew M. Hemenway and Wm. Grant
Callow, Anchorage, for Appellants. Raymond M. Funk, Assistant
Attorney General, Fairbanks, and Bruce M. Botelho, Attorney
General, Juneau, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe,
Justice, not participating.]
COMPTON, Justice.
I. INTRODUCTION
John Waiste and George Ryan (collectively, Waiste) appeal
a summary judgment that the State of Alaska does not owe them
compensation for its ex parte seizure and retention of their
fishing boat during a criminal prosecution and civil in rem
forfeiture action based on a violation of fishing regulations.
This appeal presents three principal issues. First, does due
process require that the State, in every case in which it shows
probable cause that a boat has been used in a fishing violation,
either afford a hearing or show that exigent circumstances justify
ex parte seizure? Second, do the forfeiture statutes permit the
State, if it seizes a boat in connection with a criminal
prosecution, to retain the boat after that prosecution ends in
order to seek a civil forfeiture? And third, does the State's
retention of a fishing boat between the end of the criminal
prosecution and the dismissal of the civil forfeiture action
constitute a compensable taking? We answer the first and third
questions in the negative and the second in the affirmative;
accordingly, the superior court's decision is affirmed.
II. FACTS AND PROCEEDINGS
On July 8, 1992, while Waiste was skippering the F/V
CHRISTINA ROSE, several people saw him fish for salmon in closed
waters at the mouth of Big Creek, in the Egegik district. An
Alaska Department of Fish and Game investigation ensued. Assistant
Attorney General (AAG) Lance Nelson, after consulting with officers
of the Department of Public Safety's Division of Wildlife
Protection, decided to have the boat seized. He acted in part on
a mistaken belief that Big Creek was a salmon-spawning stream and
that Waiste had thus committed the serious offense of "creek
robbing." In an ex parte hearing on July 11, the State showed
probable cause that the CHRISTINA ROSE had been used in illegal
fishing and obtained a seizure warrant from the Naknek District
Court. The State seized the boat that day, which was soon after
the peak of the Egegik salmon run, and issued Ryan and Waiste
misdemeanor citations.
Waiste moved at once for the boat's release on bond. On
July 13 the superior court held a hearing in Anchorage; Waiste's
counsel participated by phone. AAG Nelson opposed release on bond
"because of the extremely egregious nature of the [creek-robbing]
violation." The hearing was limited to the bond issue. On July 14
the court held a second hearing. Before that hearing, Nelson
informed the court that he had erred in accusing Waiste of creek-
robbing. Waiste claims that "the State continued to insist . . .
that the vessel should not be released on bond." Log notes for the
second hearing, however, show that Nelson said that the State was
willing to stipulate to a release on bond for fair market value.
Waiste's counsel deemed this "extortion."
At the end of the second hearing, the court set bond at
the boat's fair market value, $90,000. A seafood company held a
preferred ship mortgage on the CHRISTINA ROSE of more than $90,000.
Waiste affied that he could not post the bond, so he rented a
substitute boat for the rest of the 1992 season; he further affied
that he lost substantial profits.
Waiste did not challenge the basis for the seizure in the
hearings. The court had opined in the first hearing that, because
it was a bond hearing, it would "not necessarily cover [the] same
thing[s]" as a Criminal Rule 37(c) hearing, in which a property
owner can contest the basis for a seizure. [Fn. 1] The court may
have limited the hearings' scope because it was sitting in
Anchorage and, at least in the first hearing, lacked access to both
witnesses and a copy of the warrant. Waiste's counsel had also
stressed the need for a quick ruling.
The State arraigned Waiste on July 15. It filed a civil
in rem forfeiture complaint against the CHRISTINA ROSE on July 31.
It agreed to delay Waiste's criminal trial until after the 1992
fishing season, and to hold the civil forfeiture action in abeyance
until after the criminal trial. In September 1992 a jury acquitted
Waiste of criminally negligent violation of fishing laws, but found
him guilty of a strict-liability (quasi-criminal) violation. [Fn.
2]
A 1992 set of forfeiture guidelines drafted by Nelson
says that "[i]t has been the policy of the Attorney General's
office" not to seek an in rem forfeiture if it seeks but fails to
obtain an in personam forfeiture as part of a criminal sentence.
In this case, the State could not obtain an in personam forfeiture
as part of Waiste's sentence, for in personam forfeiture of a boat
is not an authorized sanction for the strict-liability violation of
which Waiste was convicted. [Fn. 3] Despite Nelson's guidelines,
however, the State did not dismiss its in rem forfeiture action
against the CHRISTINA ROSE.
Waiste answered the in rem forfeiture complaint on the
CHRISTINA ROSE's behalf in February 1993. In April the CHRISTINA
ROSE moved to lower her bond to $10,000; the State opposed.
Sometime in May, AAG Nelson offered to stipulate to a dismissal and
return of the boat, with each side to bear its own costs and fees.
Waiste did not accept. On May 17 the court heard argument and
lowered the bond to $80,000. On May 27 Waiste moved for summary
judgment in the in rem action on double jeopardy grounds. On
June 10 the State moved to dismiss its in rem claim with prejudice.
Waiste did not oppose, but sought to preserve his rights to seek
attorney's fees -- which he was eventually awarded -- and to make
in personam claims against the State. The court dismissed the
forfeiture claim with prejudice.
In July 1994 Waiste filed a complaint alleging, after
amendment, federal and state constitutional violations and a
common-law conversion claim. Defendants successfully moved for
summary judgment. Waiste appeals.
III. DISCUSSION
A. Standards of Review and Summary of Issues
We decide de novo how to construe the Alaska and federal
Constitutions, and Alaska statutes, adopting rules of law that best
reflect precedent, reason, and policy. [Fn. 4] We review summary
judgments de novo. If there is no genuine dispute of material
fact, we will affirm if the undisputed facts entitle the movant to
judgment as a matter of law. [Fn. 5] Waiste does not claim a
dispute of material fact, only that the State is not entitled to
judgment as a matter of law. We view the facts in the best light
for the nonmovant -- here, Waiste -- and draw all reasonable
inferences in Waiste's favor. [Fn. 6]
There are two periods in which the State may have
violated Waiste's rights or taken his property without
compensation. The first period is between the July 11, 1992,
seizure and the July 14 postseizure hearing. Waiste argues that
the ex parte seizure violated due process and is compensable as a
taking, or subject to damages in a Bivens [Fn. 7]-type claim, under
the Alaska Constitution. The second period is between Waiste's
September 1992 acquittal on the criminal charge and the State's
June 1993 abandonment of its civil forfeiture action. Waiste
advances three theories supporting his right to recover
compensation or damages for that period: (1) the statute governing
seizure of fishing gear required the State to return his boat at
the end of the criminal case, making its retention thereof a
conversion; (2) the State's pursuit of a forfeiture claim violated
the Alaska Constitution's Double Jeopardy Clause; and
alternatively, (3) even if the State did not violate Waiste's
rights, it took his property by retaining his boat and owes him
compensation therefor.
B. Waiste's Allegations of the State's Violations of His
Rights
1. The Alaska Constitution's Due Process Clause allows
the State, when it has probable cause to think that a boat has been
used in a fishing violation, to seize the boat without prior notice
or an adversarial hearing.
Waiste and the State agree that the Due Process Clause of
the Alaska Constitution requires a prompt postseizure hearing upon
the seizure of a fishing boat potentially subject to forfeiture.
The question is thus narrowed to whether a preseizure hearing is
due. [Fn. 8]
Waiste argues that (1) federal precedent leaves unclear
whether the federal Due Process Clause allows a government in all
cases to seize a fishing boat without prior notice or hearing; (2)
suggestions in this court's precedent that the State may do so were
dicta; (3) we interpret Alaska's Due Process Clause more broadly
than its federal counterpart; (4) therefore, the ex parte seizure
in this case violated Alaska's Due Process Clause. The State
argues that a prompt postseizure hearing is the only process due,
both under general constitutional principles and under this court's
precedents on fishing-boat seizures, whose comments were not dicta.
[Fn. 9]
The baseline for our inquiry is simple: "We have
consistently held that, except in emergencies, due process requires
the State to afford a person an opportunity for a hearing before
the State deprives that person of a protected property interest."
[Fn. 10] Waiste claims that due process requires the State to show
an emergency in each individual case before it makes an ex parte
seizure; any "categorical approach" would violate due process.
This cannot be true. There are categories of cases in which
seizures without prior notice or an adversarial hearing -- i.e.,
seizures after an ex parte warrant hearing -- are always
permissible. An obvious example is the seizure of evidence in
criminal investigations. [Fn. 11] But Waiste's claim is helpful if
read thus: even if the public interest in a class of cases will
justify ex parte seizure in some of those cases, due process still
requires that the State make a particularized showing, in each such
case, that exigent circumstances warrant ex parte seizure in that
case. Only if all or most cases in a class involve such exigency
may the State always proceed ex parte.
We must decide whether the interests in this sort of
case -- fishing-boat seizures -- justify a blanket exception to the
requirement of preseizure hearings. To do so, we must apply the
due-process balancing test that we have adopted from the United
States Supreme Court's opinion in Mathews v. Eldridge. [Fn. 12]
Before applying that general test, however, we review what that
Court and we have previously said on the issue of preseizure
hearings in forfeiture cases.
In Calero-Toledo, the Supreme Court approved Puerto
Rico's ex parte seizure of a yacht on which authorities had found
drugs. [Fn. 13] The Court's opinion as a whole shows not just that
the facts of that case justified an ex parte seizure, but that a
class of cases -- i.e., statutory seizures of boats carrying
contraband -- warranted a blanket rule allowing ex parte seizure in
all such cases. [Fn. 14] One can, however, debate how broad that
class of cases is; the Court did not define it.
Two decades later, in United States v. James Daniel Good
Real Property, the Court made clear that the class of cases covered
by Calero-Toledo does not include seizures of real property. [Fn.
15] The Court held that due process "requires the Government to
afford notice and a meaningful opportunity to be heard before
seizing real property subject to civil forfeiture." [Fn. 16] It
did allow the government to show that exigent circumstances mandate
ex parte seizure in a given case, if "less restrictive measures --
i.e., a lis pendens, [Fn. 17] restraining order, or bond -- would
not suffice to protect the Government's interests in preventing the
sale, destruction, or continued unlawful use of the real property."
[Fn. 18]
The Good Court distinguished Calero-Toledo by contrasting
the ease of moving, hiding, or destroying a boat with the
difficulty of so handling real property. [Fn. 19] It did not
define a class of cases in which governments may always make ex
parte seizures. But the Court's focus on the uniqueness of real
property suggests that Good did not narrow Calero-Toledo much;
after Good, it is likely that ex parte seizure of real property is
the only type of seizure that is barred. [Fn. 20] Federal law,
then, permits ex parte seizure in a class of cases at least as
broad as "oceangoing boats used to transport illicit drugs." It
bars ex parte seizures in a class of cases that is probably no
broader than "real property."
The seizure here falls between those two classes, though
obviously much closer to that in Calero-Toledo. Post-Good circuit
court opinions suggest that Good is limited to real property. [Fn.
21] Of course, the federal courts' interpretation of the federal
Due Process Clause is only persuasive, not binding, authority when
we interpret the Due Process Clause of the Alaska Constitution.
As for Alaska law, the State relies on two opinions
involving fishing-boat seizures: F/V American Eagle v. State [Fn.
22] and State v. F/V Baranof. [Fn. 23] In American Eagle, we heard
a due process claim about the ex parte seizure of a fishing vessel
under AS 16.05.190 .195, the statutes at issue here. [Fn. 24] As
the State stresses, we cited Calero-Toledo and said that, "[w]here
property allegedly used in an illicit act is confiscated . . .
pending a forfeiture action, no notice or hearing is necessary
prior to the seizure." [Fn. 25] Waiste argues that this was
dictum; the State deems it an integral part of the holding.
Technically, Waiste is right. The AMERICAN EAGLE's
owners only "complain[ed that] they were denied due process in that
the [statutes] provide for no . . . prompt postseizure notice and
hearing." [Fn. 26] They implicitly conceded that no preseizure
process was due, and we expressly limited our decision to whether
the statute was constitutional as applied, not on its face. Our
opinion, read as a whole, makes clear that we did not address
whether due process required a preseizure hearing. [Fn. 27] We
simply held that, while the owners claimed that due process
required that the statute provide a prompt postseizure hearing,
their claim failed because such a hearing had in fact been
available under Criminal Rule 37(c). [Fn. 28] And as we explain in
the margin, our opinion in Baranof also provides only dicta
supporting the State's position. [Fn. 29]
The dicta in American Eagle and Baranof strongly suggest
that the State need only provide a prompt postseizure hearing. But
had the owners in American Eagle and Baranof insisted that a
preseizure hearing was due, we might not have so readily presumed
that a broad reading of Calero-Toledo applied. Moreover, it is in
the sixteen years since Baranof -- our last review of ex parte
seizures of potentially forfeitable property -- that the
constitutionality of many long-accepted aspects of in rem
forfeiture has become a hotly-contested, evolving area of law. [Fn.
30]
Precedent does not foreclose Waiste's claim. This
court's dicta, however, and the persuasive weight of federal law,
both suggest that the Due Process Clause of the Alaska Constitution
should require no more than a prompt postseizure hearing. With
that in mind, we turn to general due process analysis.
a. Application of the Mathews test to fishing
vessel seizures
The Mathews v. Eldridge [Fn. 31] test for whether a
preseizure hearing is due requires a court to balance three things:
(1) the private interest at risk; (2) the degree to which an
adversarial hearing, as opposed to an ex parte hearing, will reduce
the risk of erroneous deprivation; and (3) the State's interest,
including that in avoiding any additional burden imposed by a
preseizure hearing. [Fn. 32]
While the parties discuss the Mathews factors, they
mainly focus on three concerns that the Calero-Toledo Court noted
in finding that seizure of a yacht used to run drugs was one of the
"'extraordinary situations that justify postponing notice and
opportunity for a hearing.'" [Fn. 33] (The Court did not apply the
Mathews test in Calero-Toledo because that opinion preceded
Mathews.) Those concerns are the need to seize the boat in order
to (1) obtain in rem jurisdiction over the boat; (2) prevent
removal, concealment, or destruction of the boat; and (3) prevent
further illegal use of the boat. [Fn. 34] In terms of Mathews, all
of those factors constitute "government interests" in making
seizures ex parte. [Fn. 35] Mathews makes clear that we cannot
review those interests in a vacuum, but must weigh them against the
private interests at stake, in light of the risk of error in an ex
parte preseizure hearing. [Fn. 36]
i. The governmental interests
(1) Jurisdiction. The first governmental interest in
Calero-Toledo -- the need to seize ships in order to acquire
jurisdiction to forfeit them -- is absent here. Waiste argues at
length that Alaska law does not require physical seizure of a
fishing boat to give a court jurisdiction to forfeit it. The
State, moreover, has implicitly conceded the issue; its brief says
nothing about in rem jurisdiction.
The State notes instead that, when it seized the boat, it
charged Waiste with a crime, and that, had he been convicted, the
court could have ordered an in personam forfeiture of the boat as
part of his sentence. In personam forfeiture, the State argues,
citing our opinion in Rubino v. State, [Fn. 37] requires "prior
seizure of the items." That is incorrect. In Rubino, the State
did not contest Rubino's claim that the in personam forfeiture of
his drift-net was invalid because the State had never seized the
net. [Fn. 38] Rubino thus establishes no rule of law on the point.
The State cites, and our research reveals, no authority for the
rule that it asserts, namely that seizure of items is required for
in personam forfeitures.
A post-Rubino statute, moreover, vitiates the State's
argument. Rubino's criminal forfeiture was under AS 16.05.190; the
legislature did not enact AS 16.05.195 until 1974. [Fn. 39]
Subsection (a) of AS 16.05.195 says that equipment used in fishing
violations may be forfeited either "(1) upon conviction of the
offender in a criminal proceeding . . . or (2) upon judgment . . .
in a proceeding in rem[.]" Subsection (b) says, without
distinguishing in personam and in rem forfeiture, that items "may
be forfeited . . . regardless of whether they were seized before
instituting the forfeiture action." [Fn. 40] Thus, we conclude
that there is no jurisdictional need to seize fishing boats ex
parte.
(2) Preventing flight or destruction. The State next
argues that it must seize fishing boats without prior notice. It
argues that it must do so to prevent fishing violators from, inter
alia, fleeing with their boats, hiding them, or selling them to
bona fide purchasers, who would be immune from forfeiture. [Fn. 41]
Waiste responds that he, unlike a drug dealer with an oceangoing
yacht in Puerto Rico, was very unlikely to flee Alaska -- where he
has lived and fished for many years and where his family depends
solely on his fishing income -- in a thirty-two-foot boat. The
State contends that many of the facts supporting his argument were
not properly in the record on summary judgment. The State is
correct about some of the facts Waiste alleges -- e.g., the
CHRISTINA ROSE's non-oceangoing range. But Waiste did establish
that he is a long-time Alaskan commercial fisher, and it may well
be within the scope of reasonable inferences in his favor, on
summary judgment, to conclude that he was unlikely to flee the
jurisdiction in his boat.
We need not decide, however, whether that inference about
Waiste is in fact reasonable, for the details of his personal
situation are not dispositive. The relevant inquiry under Mathews
is not into Waiste's individual circumstances, but into whether
alleged commercial fishing violators in general, upon receiving
preseizure notice of pending forfeiture proceedings, are likely to
remove, conceal, or sell their boats. If most commercial fishing
violators pose a risk of doing so, then due process should permit
the State to seize boats ex parte. To do so, moreover, would not
violate Waiste's rights, even if he, as an individual, happens to
be among the fishers least likely to take such steps.
The Calero-Toledo Court, in discussing this issue, merely
noted that "preseizure notice and hearing might frustrate the
interests served by the [drug] statutes, since the property
seized -- as here, a yacht -- will often be of a sort that could be
removed to another jurisdiction, destroyed, or concealed, if
advance warning of confiscation were given." [Fn. 42] A court
could distinguish that broad comment by delineating a subclass of
movable property -- e.g., non-oceangoing fishing boats -- that are
not likely to be "removed to another jurisdiction, destroyed, or
concealed." To our knowledge, though, no court has yet done so.
In this case, we are not persuaded that the class of
movable property at issue -- fishing boats that the State has
probable cause to believe were used in commercial fishing
violations, and thus subject to forfeiture -- presents a negligible
risk of removal or concealment. As the State points out, in the
typical case, owners could readily seek to evade forfeiture upon
receiving notice of an impending preseizure hearing. Such owners
could sail their vessels out of Alaskan waters, hide them, paint
over their identifying numbers, or sell them to innocent
purchasers. Preventing such removal or concealment constitutes, in
the class of cases at issue, a significant government interest
supporting a blanket rule allowing ex parte seizure.
(3) Preventing continued illegal use. Waiste focuses on
this concern, but it was not a major factor in allowing immediate
seizure in Calero-Toledo. The Court said that "[s]eizure permits
Puerto Rico to assert in rem jurisdiction over the property in
order to conduct forfeiture proceedings, thereby fostering the
public interest in preventing continued illicit use of the property
. . . ." [Fn. 43] It was the ultimate forfeiture that would
"prevent[] continued illicit use of the property," not the marginal
additional period the State would retain the property if a court
granted a seizure following an ex parte hearing, rather than
requiring notice and an adversarial hearing before granting it.
Immediate seizure only served the interests in gaining jurisdiction
and preventing flight.
Good focused on "[t]wo essential considerations" in
Calero-Toledo: jurisdiction and flight. [Fn. 44] The State
correctly notes that Good "did not hold that government needs to
make . . . a showing [that further illegal activities are likely]
prior to issuance of [a] search warrant for a prior criminal act,"
but the point has little force. As Waiste notes, the State's own
policy in commercial fishing seizures of negotiating the release of
vessels and allowing the owners to resume fishing -- and its
willingness in this case to delay Waiste's trial until after the
fishing season -- make quite implausible any suggestion that
preventing continued violations is its immediate aim in seizing
fishing boats before any hearing. [Fn. 45]
Even if ex parte seizures might serve an interest in
preventing continued illegal fishing, they do so but slightly:
proceeding ex parte only prevents continued illegal use for the
brief time between when the State seizes a boat ex parte and when
it could do so after a hearing. It thus seems unlikely, and the
State has certainly not shown, that ex parte seizures contribute
meaningfully to preventing continued illegal use of fishing boats.
(4) Avoiding the burden of a hearing. The State alludes
to the "extensive preseizure inquiry" that Waiste's proposed rule
would require. But given the conceded requirement of a prompt
postseizure hearing on the same issues, in the same forum, "within
days, if not hours," [Fn. 46] the only burden that the State avoids
by proceeding ex parte is the burden of having to show its
justification for a seizure a few days or hours earlier. The
interest in avoiding that slight burden is not significant. [Fn.
47]
(5) Other interests. The State notes that the warrant
under which it seized the boat also authorized it to seize evidence
of crime, and that fishing violators could, if they received notice
before the State seized their boats, hide or destroy such evidence.
But as Waiste cogently notes, this argument is plainly fallacious;
nothing bars the State from simultaneously executing a warrant to
search for evidence and fruits of a fishing violation, seizing and
safeguarding any such evidence, and notifying the boat's possessors
that it has filed a forfeiture action and that the court will be
holding a hearing on the State's request to seize the boat before
the forfeiture.
Finally, the State argues that a lis pendens would not
protect its financial interest in a forfeitable vessel, because the
rules of maritime lien prioritization "would allow liens for wages
or maintenance and cure to continue to accrue and defeat or reduce
any state forfeiture interest" in the vessel. It is true that lis
pendens is of no help to the State, but for a more basic reason.
As noted above, AS 09.45.940, the lis pendens statute, applies by
its terms only to real property, [Fn. 48] and we have never
extended the availability of lis pendens to personalty. In any
event, it seems a minor concern, unlikely to arise often. The
State's forfeiture interest already ranks below, for example, a
preferred ship mortgage. [Fn. 49] And the State again ignores the
relevant time frame: that between the time of an ex parte seizure,
and the time of a post-hearing seizure. Only for that brief period
would the State be at risk of boats accruing maritime liens that
would reduce its forfeiture proceeds.
(6) Summary. The State's only significant interest in
proceeding ex parte is thus to avoid the risk of owners removing or
concealing their boats upon receiving notice of a seizure hearing.
ii. The private interest
The State does not discuss the private interest at stake,
and Waiste is plainly right that it is significant: even a few
days' lost fishing during a three-week salmon run is serious, and
due process mandates heightened solicitude when someone is deprived
of her or his primary source of income. [Fn. 50]
iii. The reduction in the risk of erroneous
deprivation
The State similarly does not dispute that a preseizure
hearing will significantly reduce the risk of an erroneous seizure.
As Good noted, "[t]he practice of ex parte seizure . . . creates an
unacceptable risk of error." [Fn. 51] Indeed, for the State to
argue otherwise in this case would be to risk looking foolish,
given AAG Nelson's significant error in thinking Big Creek a
salmon-spawning stream. It is not surprising that the magistrate
who issued the seizure warrant did not, in an ex parte hearing,
happen to notice and correct that error sua sponte.
The State does note that executive officials, not private
parties, make the decision to seek a seizure, and that a magistrate
or judge, not a court clerk, reviews it. This is the third
consideration that the Calero-Toledo Court stressed in finding the
ex parte seizure at issue there acceptable. [Fn. 52] Those facts
do avoid the risks of serious abuse that inhered in prejudgment
attachment schemes, struck down by the Supreme Court and this
court, that once allowed private parties unilaterally to employ a
court's power to attach property with no review by a judicial
officer. [Fn. 53] But it does not fully remedy the basic flaws in
ex parte proceedings. As Justice Frankfurter observed, "fairness
can rarely be obtained by secret, one-sided determination of facts
decisive of rights. . . . No better instrument has been devised for
arriving at truth than to give a person in jeopardy of serious loss
notice of the case against him and opportunity to meet it." [Fn.
54] As the Good Court noted, moreover, the protection of an
adversary hearing "is of particular importance [in forfeiture
cases], where the Government has a direct pecuniary interest in the
outcome." [Fn. 55] Nonetheless, the government officials involved
have less personal stake in the outcome than private litigants
would have. This factor mitigates, but does not eliminate, the
risk of error inherent in ex parte proceedings.
iv. Conclusion
We must decide whether the private interest in avoiding
the erroneous detention of a fishing boat for several days of a
brief fishing season, given the risk of error in an ex parte
hearing held by a magistrate and initiated by a State attorney,
outweighs the State's interest in ensuring that fishing-boat owners
not remove or conceal their boats to avoid forfeiture. Waiste
argues plausibly that the private interest outweighs the State
interest, but not persuasively enough to convince us to become the
first court to expand the rule of Good beyond real property. [Fn.
56] An ensemble of procedural rules bounds the State's discretion
to seize vessels and limits the risk and duration of harmful
errors. The rules include the need to show probable cause to think
a vessel forfeitable in an ex parte hearing before a neutral
magistrate, to allow release of the vessel on bond, and to afford
a prompt postseizure hearing. That ensemble is undeniably less
effective than a prior, adversarial hearing in protecting fishers
from the significant harm of the erroneous seizure and detention of
a fishing boat. The facts of this case may illustrate that point.
But we do not balance the State and private interests and risk of
error in this case, in hindsight. Rather, we balance the State's
interest in avoiding removal or concealment with the likelihood and
gravity of error in the relevant class of cases, and, in so doing,
we hold that a blanket rule of ex parte seizure comports with due
process.
2. The State did not violate AS 16.05.190 .195 by
retaining Waiste's boat after his acquittal.
Waiste argues that AS 16.05.190, which governs the
seizure and disposition of equipment used in fishing violations,
required the State to return his boat once the criminal case had
ended. The statute says that items "seized under the provisions of
this chapter . . . unless forfeited by an order of the court, shall
be returned, after completion of the case and payment of the fine,
if any." [Fn. 57] Waiste argues that "the case" means the criminal
case. The State argues that "the case" encompasses both criminal
and civil proceedings.
Waiste's argument on this point is unavailing. However
one defines "the case" for purposes of AS 16.05.190, the State was
not required to return Waiste's boat after his acquittal. This is
so because the boat was seized not only for the purposes of the
section .190 criminal proceeding, but also for the State's parallel
section .195 civil forfeiture action. Because the latter
proceeding had not been completed at the time of Waiste's
acquittal, the State was not required to return the boat to him
then; rather, the State had independent authority to retain it
under section .195.
That the State was not seizing the boat only for the
section .190 criminal proceeding is apparent from the record. The
search warrant affidavit evinces the State's dual purpose in
seizing the boat, citing both section .190 and section .195 as
justification for the seizure.
Further, the language of section .195 strongly suggests
that the State has the power to seize property for civil forfeiture
purposes. Subsection .195(b) provides that "[i]tems specified in
(a) of this section may be forfeited under this section regardless
of whether they were seized before instituting the forfeiture
action." (Emphasis added.) The State must have the power to seize
the property for this subsection to have any meaning, and it would
make little sense to decide that this power arises purely from the
State's power to seize under section .190, the quasi-criminal
statute. Further, that the State has the power to seize property
for the purposes of an in rem forfeiture action is a long-standing
tenet of Alaska law. [Fn. 58]
Beyond this analysis, to hold as Waiste would have us
might create unfortunate results. If the State has no independent
power to seize property for section .195 purposes, its only means
of seizing equipment and contraband used in violation of the fish
and game laws and regulations would be to institute criminal or
quasi-criminal prosecutions. Surely there are many violations of
these provisions that do not warrant such drastic measures, and
would be more suited to a mere civil proceeding.
Therefore, even if we accept the proposition that "the
case" in AS 16.05.190 refers to the criminal proceeding only, the
State had independent authority to seize the vessel under
AS 16.05.195 and could retain it after the charges were dismissed.
Waiste's second statutory claim is that AS 16.05.195(d)
forces the State to choose between criminal prosecution and civil
forfeiture. This is untenable. Subsection .195(d) says that it is
no defense to forfeiture "that the person who had the item . . . in
possession at the time of its use and seizure has not been
convicted or acquitted in a criminal proceeding resulting from or
arising out of its use." Waiste reads this to mean that, if the
possessor-at-time-of-misuse has been "convicted or acquitted," that
is a defense to forfeiture. That does not follow. The words "not
been convicted or acquitted" clarify that the State may pursue a
civil forfeiture even though it has not yet completed or even begun
a criminal prosecution. They allow it to pursue civil forfeiture
before or instead of prosecution; they do not forbid it to do both.
3. The State did not violate Waiste's double jeopardy
rights by continuing to pursue a civil in rem forfeiture after
criminally prosecuting him.
Waiste argues that the State compensably violated his
right under the Alaska Constitution not to be subject to double
jeopardy. This is so, Waiste argues, because he was "put in
'jeopardy' when the State brought criminal charges against him
[and] [w]hen the criminal case was completed, further proceedings
that placed Waiste and Ryan in 'jeopardy' within the meaning of
Article I, section 9 were barred."
However, this argument also fails. Simply put, Waiste
asks us to overrule or tortuously distinguish a near-controlling
precedent [Fn. 59] largely on the persuasive authority of two
fairly recent Supreme Court opinions [Fn. 60] whose rationales the
Supreme Court itself, in a more recent opinion, [Fn. 61] explicitly
refused to combine as Waiste urges, instead holding that civil in
rem forfeitures can almost never constitute punishment under the
federal Double Jeopardy Clause. [Fn. 62] He asks us to do so,
moreover, in a case not involving a forfeiture, but the allegedly
improper retention of property to pursue a never-accomplished
forfeiture. This we decline to do.
4. The State need not compensate Waiste for taking his
profits by seizing his boat between the acquittal and the dismissal
of the civil forfeiture action.
Waiste's next claim is that the State must compensate him
for taking (i.e., preventing the generation of) his profits from
his boat for the period between his acquittal and the boat's
return. The State does not address this argument at all. [Fn. 63]
We liberally interpret Alaska's Takings Clause in favor
of property owners, whom it protects more broadly than the federal
Takings Clause. [Fn. 64] The Clause's protection extends to
personal as well as real property. [Fn. 65] It ensures
compensation for temporary as well as permanent takings. [Fn. 66]
We have rejected traditional rules that do not comport
with the primacy of full compensation, measured from a property
owner's perspective, and with economic reality. [Fn. 67] The
finding of a taking, finally, depends on whether someone has been
deprived of the economic benefits of ownership, not whether the
State captures any of those benefits. [Fn. 68]
Relying on these principles, and our broad, flexible
approach to takings jurisprudence, Waiste argues that when the
State retained his boat following his criminal acquittal, it
thereby "took" not only the boat itself, but the stream of income
that that capital asset would have produced in the period that the
State held it. The State has partially compensated Waiste for this
taking by returning the boat, but, according to Waiste, it will not
have fully compensated him until it gives him the monetary
equivalent of the stream of income that it prevented.
But we conclude that Waiste's loss of profits due to the
State's retention of the boat cannot properly be characterized as
a taking. There is no question that the State was empowered by
AS 16.05.195 to keep the boat for purposes of the in rem action.
There is also no question that the State seized the boat pursuant
to a valid warrant. An in rem action under section .195 is not an
exercise of the State's constitutional taking power for which the
Takings Clause triggers the requirement of just compensation.
Rather, that law is an exercise of the State's police powers. As
the Oregon Supreme Court observed:
Not every acquisition of a private property
interest by the state constitutes a taking . . . ; through the
lawful exercise of other powers available to it, e.g., the taxing
power, the "police power," or the power to purchase property, the
state may, consistently with constitutional requirements, acquire
private property interests in a manner that does not constitute a
taking. Ordinarily, when the government acquires such an interest
through a power other than its taking power, just compensation is
not constitutionally required.[ [Fn. 69]]
In State ex rel. Schrunk v. Metz, the Oregon Court of
Appeals was faced with facts similar to Waiste's. [Fn. 70] There,
the state had seized two restaurants where gambling activities were
suspected of taking place. [Fn. 71] The state eventually dismissed
its forfeiture action, and the court returned the restaurants to
the owners. [Fn. 72] The owners sued, arguing that the seizure of
the assets was a taking. [Fn. 73] The court held:
Oregon's civil forfeiture law, which operates
to make illicit behavior unprofitable and to thwart the continued
unlawful use of property, fosters the purposes served by the
criminal laws and is directed primarily at the prevention of
serious public harm and the preservation of the public welfare. As
such, it is a permissible police power regulation. Because the
seizure and ultimate forfeiture of property under [Oregon's cognate
to AS 16.05.195] is not accomplished by the power of eminent
domain, but is instead undertaken in the exercise of the police
power, any acquisition of defendants' properties that may have
resulted from the court ordered seizures did not constitute a
"taking" of property . . . .[ [Fn. 74]]
The distinction between eminent domain and the state's
police power is well established legal doctrine, as is the notion
that government seizure of property suspected of having been used
to break the law falls squarely within the police power. [Fn. 75]
Therefore, we hold that Waiste is not entitled to the profits he
would have received had he been able to fish during the period
between his acquittal and the boat's return.
IV. CONCLUSION
The superior court's decision is AFFIRMED.
FOOTNOTES
Footnote 1:
See Alaska R. Crim. P. 37(c) ("A person aggrieved by an
unlawful search and seizure may move the court . . . for the return
of the property and to suppress for use as evidence anything so
obtained on the ground that the property was illegally seized.").
Footnote 2:
The State had dismissed the charge against Ryan. However,
because he is co-owner of the CHRISTINA ROSE, he continues to seek
damages alongside Waiste and remains a party to this appeal.
Footnote 3:
Compare AS 16.05.722 (providing penalties, not including boat
or gear forfeitures, for strict-liability fishing violations) with
AS 16.05.723 (providing penalties, including boat or gear
forfeitures, for criminally negligent violations).
Footnote 4:
See, e.g., Todd v. State, 917 P.2d 674, 677 (Alaska 1996).
Footnote 5:
See, e.g., Metcalfe Invs., Inc. v. Garrison, 919 P.2d 1356,
1360 (Alaska 1996).
Footnote 6:
See id.
Footnote 7:
Bivens v. Six Unknown Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971) (holding that claim, analogous to
42 U.S.C. sec. 1983 action, could lie against federal agents for
violations of constitutional rights).
Footnote 8:
Waiste argues in his opening brief that the forfeiture statute
is facially unconstitutional because it lacks standards for
forfeiture actions, but -- as the State noted in its brief, and
Waiste did not contest in his reply -- he waived this claim by
failing to raise it below.
Footnote 9:
The State also argues that waiver, res judicata, and public
policy bar Waiste's claim; because we conclude that the State is
essentially correct on the merits, we need not address these
arguments.
Footnote 10:
Hoffman v. State, Dep't of Commerce & Econ. Dev., 834 P.2d
1218, 1219 (Alaska 1992) (citing Graham v. State, 633 P.2d 211, 216
(Alaska 1981)).
Footnote 11:
See, e.g., Morris v. State, 473 P.2d 603 (Alaska 1970).
Footnote 12:
424 U.S. 319, 334-35 (1976) (adopted as standard for due
process under Alaska Constitution in Homer v. State, Department of
Natural Resources, 566 P.2d 1314, 1319 (Alaska 1977)).
Footnote 13:
See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,
665 67, 678 80 (1974).
Footnote 14:
See id. at 676 80.
Footnote 15:
510 U.S. 43, 57-58 (1993).
Footnote 16:
Id. at 62.
Footnote 17:
See Black's Law Dictionary 1081 (Rev. 4th ed. 1968) (defining
"notice of lis pendens" as "notice filed for the purpose of warning
all persons that the title to certain property is in litigation,
and that, if they purchase the defendant's claim to the same, they
are in danger of being bound by an adverse judgment"). Such a
device would, of course, be of no avail in the instant case; a
notice of lis pendens may be filed only as to real, not personal,
property. See AS 09.45.940.
Footnote 18:
Good, 510 U.S. at 62.
Footnote 19:
See id. at 57 58.
Footnote 20:
See also id. at 74 76 (O'Connor, J., concurring and dissenting
in part) (arguing that all ex parte pre-forfeiture seizures should
be constitutional under Calero-Toledo).
Footnote 21:
See United States v. $129,727.00 in U.S. Currency, 129 F.3d
486, 493 (9th Cir. 1997); United States v. One Parcel of Real Prop.
Described as Lot 41, Berryhill Farm Estates, 128 F.3d 1386, 1392
(10th Cir. 1997); Madewell v. Downs, 68 F.3d 1030, 1038-39 (8th
Cir. 1995). Two courts of appeals have suggested that Good could
extend to personal property, but have not so extended it. See
United States v. All Assets and Equip. of W. Side Bldg. Corp., 58
F.3d 1181, 1192 93 (7th Cir. 1995); Organizacion JD Ltda. v. United
States Dep't of Justice, 18 F.3d 91, 94 (2d Cir. 1994).
Footnote 22:
620 P.2d 657 (Alaska 1980).
Footnote 23:
677 P.2d 1245 (Alaska 1984).
Footnote 24:
See American Eagle, 620 P.2d at 662.
Footnote 25:
Id. at 666 (citing Calero-Toledo).
Footnote 26:
Id. (emphasis added).
Footnote 27:
The opinion makes clear that the vessel's owners did not
dispute that a prompt postseizure hearing was the only process due:
"The owners . . . also complain [that] they were denied due process
of law in that the forfeiture statutes under which the vessel . . .
[was] seized provide for no in rem procedure or prompt
post[]seizure notice and hearing." Id. (emphasis added).
Footnote 28:
See id. at 667 (noting that the State had promptly notified
owners of seizure and that they had an "immediate and unqualified
right to contest the state's justification for the seizure before
a judge under Criminal Rule 37(c)").
Footnote 29:
The BARANOF also argued, as we read its brief, that
AS 16.05.195 "is constitutionally defective in that it does not
provide a hearing either prior to or immediately after the seizure
of property." Baranof, 677 P.2d at 1255. This no more squarely
presents the question that Waiste raises than did American Eagle,
for the BARANOF's argument implicitly concedes that a hearing
"immediately after the seizure" would satisfy due process. As in
American Eagle, we noted that, while the forfeiture statute did not
expressly provide for a prompt postseizure hearing, Criminal Rule
37(c) had in fact made such a hearing available. See id. at
1255 56 (citing American Eagle, 620 P.2d at 667).
Footnote 30:
See, e.g., Susan R. Klein, Civil In Rem Forfeiture and Double
Jeopardy, 82 Iowa L. Rev. 183, 185 86 (1996).
Footnote 31:
See Homer v. State, Dep't of Natural Resources, 566 P.2d 1314,
1319 (Alaska 1977) (adopting test of Mathews, 424 U.S. at 335).
Footnote 32:
See, e.g., A. Fred Miller, Attys. at Law, P.C. v. Purvis, 921
P.2d 610, 618 (Alaska 1996) (applying Mathews); Keyes v. Humana
Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988) (same); Hilbers
v. Anchorage, 611 P.2d 31, 36 (Alaska 1980) (same); see also United
States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993)
(applying Mathews to decide whether due process required preseizure
hearing about forfeitable real property); id. at 77 (O'Connor, J.,
concurring in part) (agreeing that Mathews applies).
Footnote 33:
Calero-Toledo, 416 U.S. at 677 (quoting the pre-Mathews
standard of Fuentes v. Shevin, 407 U.S. 67, 90 (1972)).
Footnote 34:
See id. at 679.
Footnote 35:
See Mathews, 424 U.S. at 335.
Footnote 36:
See, e.g., Good, 510 U.S. at 53 59 (applying Mathews to ex
parte seizure of forfeitable real property).
Footnote 37:
391 P.2d 946, 948 (Alaska 1964).
Footnote 38:
See id. at 947 48.
Footnote 39:
See ch. 124, sec. 3, SLA 1974.
Footnote 40:
See also AS 16.05.723 (authorizing in personam forfeiture of
fishing boats upon conviction for criminal fishing violation and
not saying whether items can be forfeited without prior seizure).
Footnote 41:
See AS 16.05.195(e).
Footnote 42:
416 U.S. 663, 679 (1974).
Footnote 43:
416 U.S. at 679 (footnote omitted).
Footnote 44:
See 510 U.S. at 57. The Court did say, as the State notes,
that one of "the Government's legitimate interests at the inception
of forfeiture proceedings [is] to ensure that the property not be
. . . used for further illegal activity prior to the forfeiture
judgment." Id. at 58. But the State has quoted that passage out
of context, for Good goes on to say that this "legitimate
interest[] can be secured without seizing the subject property,"
id., because "the Government can forestall further illegal activity
with search and arrest warrants." Id. at 59.
Footnote 45:
Cf. id. at 59 (noting that, while Government's preforfeiture
interests include preventing destruction of res, its "policy of
leaving occupants in possession of real property . . . pending the
final forfeiture ruling demonstrates that there is no serious
concern about destruction in the ordinary case").
Footnote 46:
F/V American Eagle v. State, 620 P.2d 657, 667 (Alaska 1980).
Footnote 47:
Cf. Good, 510 U.S. at 59 ("Requiring the Government to
postpone seizure until after an adversary hearing creates no
significant administrative burden. A claimant is already entitled
to an adversary hearing before a final judgment of forfeiture.").
Footnote 48:
See supra note 17.
Footnote 49:
It is settled that "federal, state and local [tax liens],
being nonmaritime, are subordinate to all maritime liens . . .
whether the maritime liens arise before or after the governmental
claim." Grant Gilmore & Charles L. Black, Jr., The Law of
Admiralty sec. 9 73 (1975). Since tax liens do not defeat later-
accrued maritime liens, it seems unlikely that forfeiture claims
should. Indeed, in ranking the priority of maritime liens, one
commentator puts "[m]aritime liens for penalties and forfeiture for
violation of federal statutes" eighth, and "[s]tate-created liens
of [a] maritime nature" seventh. See George Varian, Rank and
Priority of Maritime Liens, 47 Tulane L. Rev. 751, 753 (1973).
Footnote 50:
See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
543 (1985); F/V American Eagle, 620 P.2d at 666-67 ("[W]hen the
seized property is used by its owner in earning a livelihood,
notice and an unconditioned opportunity to contest the state's
reasons for seizing the property must follow the seizure within
days, if not hours, to satisfy due process guarantees even where
the government interest in the seizure is urgent.").
Footnote 51:
Good, 510 U.S. at 55.
Footnote 52:
See 416 U.S. 663, 679 (1974).
Footnote 53:
Cf., e.g., Sniadach v. Family Fin. Corp., 395 U.S. 337, 342
(1969); Fuentes v. Shevin, 407 U.S. 67, 91, 93 (1972); Etheredge v.
Bradley, 502 P.2d 146, 153 (Alaska 1972) (noting lack of "any
mechanism for review of the necessity and justification for the
seizure by a responsible government official").
Footnote 54:
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,
170 72 (1951) (Frankfurter, J., concurring).
Footnote 55:
Good, 510 U.S. at 55 56.
Footnote 56:
The legislature, of course, might conclude differently. It
could exercise its broader fact-finding powers, and greater ability
to tailor regulatory schemes to balance competing social interests,
to delineate a class or classes of moveable property that, like
real property, will not be subject to ex parte preforfeiture
seizure.
Footnote 57:
AS 16.05.190 (emphasis added). The statute provides in part
that equipment, including boats,
used in or in aid of a violation of this
chapter or a regulation of the department may be seized under a
valid search, and all fish and game . . . taken, transported, or
possessed [illegally] . . . shall be seized . . . . Upon
conviction of the offender or upon judgment of the court having
jurisdiction that the item was taken, transported, or possessed
[illegally] . . . , all fish and game . . . are forfeited to the
state and shall be disposed of as directed by the court. . . .
[Equipment, including boats,] seized under the provisions of this
chapter or a regulation of the department, unless forfeited by
order of the court, shall be returned, after completion of the case
and payment of the fine, if any.
Footnote 58:
See United States v. Three Thousand Two Hundred Thirty-six
Dollars, 167 F. Supp. 495, 497-98 (D. Alaska 1958) ("Where the
object seized is capable of use in non-prohibited activity, the
party seizing the object must file a libel in rem against the
object and prove by the weight of evidence that the object was an
implement of gambling in the context in which it was seized. This
is necessary in order to perfect the seizure and forfeiture. It is
the same type of procedure followed in admiralty practice where a
ship is treated as a person for purpose of suit. Because the
forfeiture action is a action in rem, separate from any criminal
action brought in conjunction with the seizure, no prior conviction
of the alleged owner is needed to sustain the action, and it can be
maintained where the owner has been acquitted of the crime
charged.") (citations omitted).
Footnote 59:
See Resek v. State, 706 P.2d 288 (Alaska 1985) (holding that
civil in rem forfeiture under AS 17.30.110 of instrumentalities of
drug crimes is not a criminal proceeding triggering right to
counsel).
Footnote 60:
See United States v. Halper, 490 U.S. 435 (1989) (holding that
fixed civil penalty can, in rare case, be so disproportionate to
harm from misdeed as to constitute punishment for double jeopardy
purposes); Austin v. United States, 509 U.S. 602 (1993) (holding
that civil in rem forfeiture constituted "excessive fine" violating
Eighth Amendment).
Footnote 61:
See United States v. Ursery, 518 U.S. 267 (1996).
Footnote 62:
See id. at 291-92. Since Waiste filed his briefs, moreover,
the Supreme Court has further undermined his argument by overruling
the part of Halper that had relaxed the traditionally strict
presumption that nominally civil proceedings cannot constitute
punishment for double jeopardy purposes. See Hudson v. United
States, 522 U.S. 93, 95-96 (1997) (disavowing Halper, 490 U.S. at
448 (focusing on whether civil sanction is "punitive" or
"remedial")) (stating that punitive character is irrelevant unless
double jeopardy claimant shows that Congress intended penalty to be
criminal or presents "clearest proof" that statutory scheme as a
whole is so punitive in purpose or effect as to constitute a
criminal penalty despite civil label).
Footnote 63:
Waiste unfortunately muddies this simple claim by arguing
that, since we have held that Alaska's Due Process Clause requires
the State to afford "innocent" owners a remission procedure in
forfeiture schemes, see State v. Rice, 626 P.2d 104, 113 (Alaska
1981), and since remission is impossible for owners like him who
suffer a taking but not a forfeiture, we should order compensation
under the Takings Clause as a substitute for remission. This is
the only part of his takings claim that the State rebuts. This is
a needless complication of the issue. Similarly, whether Waiste
technically qualifies as an "innocent owner" under Rice and Fehir
v. State, 755 P.2d 1107, 1109 (Alaska 1988), is irrelevant, though
his "innocence" or culpability, in general, may be relevant to a
takings inquiry.
Footnote 64:
See, e.g., Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska
1993) (citing State v. Doyle, 735 P.2d 733, 736 (Alaska 1987) and
State v. Hammer, 550 P.2d 820, 824 (Alaska 1976) (noting that
unlike federal Clause, Alaska's Takings Clause mentions "damage[]"
as well as "tak[ing]")).
Footnote 65:
See Hammer, 550 P.2d at 826 (treating ongoing business,
divorced from specific realty, as "property"); State v. Ness, 516
P.2d 1212, 1214 & n.9 (Alaska 1973); cf. DeLisio v. Alaska Super.
Ct., 740 P.2d 437, 440 41 (Alaska 1987) (holding services to be
property under the Takings Clause and deeming contrary traditional
rule "manifestly unreasonable").
Footnote 66:
See, e.g., Cannone v. Noey, 867 P.2d 797, 800 & n.3 (Alaska
1994); Hammer, 550 P.2d at 827.
Footnote 67:
See, e.g., DeLisio, 740 P.2d at 440 43; Hammer, 550 P.2d at
823 26; Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1246 47
(Alaska 1974) (approving New Jersey's "provocative departure from
established precedent" in establishing "analysis sensitive to the
economic realities of public condemnation") (adopting State v.
Nordstrom, 253 A.2d 163 (N.J. 1969)).
Footnote 68:
See Stewart & Grindle, 524 P.2d at 1248.
Footnote 69:
Hughes v. State, 838 P.2d 1018, 1037 (Or. 1992) (citations
omitted).
Footnote 70:
867 P.2d 503 (Or. App. 1993).
Footnote 71:
See id. at 506.
Footnote 72:
See id. at 507.
Footnote 73:
See id. at 508.
Footnote 74:
Id.
Footnote 75:
See Lawton v. Steele, 152 U.S. 133, 138 (1894) (upholding the
power of the state to seize and destroy fishing nets used in
violation of fish and game laws, holding: "The preservation of game
and fish . . . has always been treated as within the proper domain
of the police power . . . ."); United States v. One 1962 Ford
Thunderbird, 232 F. Supp. 1019, 1022 (N.D. Ill. 1964) ("Where
Congress, in the implementation of its constitutional powers,
provides for penalties such as forfeitures, such action is not a
taking of property in a constitutional sense. It is not an
instance of eminent domain, in which property is taken because the
use of such property is beneficial to the public. Rather, the
property interest is infringed because Congress has deemed it
necessary in order to preserve other incidents of the public
welfare. As such, it represents a federal exercise of a police
power to which the constitutional requirement of compensation is
inapplicable."); United States v. One 1961 Cadillac Hardtop
Automobile, 207 F. Supp. 693, 699 (E.D. Tenn. 1962) ("forfeitures
of property used in violation of law is generally not a denial of
due process of law or a violation of the constitutional prohibition
against the taking of private property for public use without fair
compensation"); see also Joseph L. Sax, Takings and the Police
Power, 74 Yale L.J. 36, 36 n.6 (1964).
