DA 14-0687

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 181

MARK MUIR, CHIEF OF POLICE, CITY

OF MISSOULA, STATE OF MONTANA,

 Petitioner and Appellee,

 v.

BOBBY JEROME BILDERBACK,

 Respondent,

and

MARIE FELTON,

 Intervenor and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV-13-551

Honorable Karen S. Townsend, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Craig Shannon, Attorney at Law, Missoula, Montana

For Appellee:

Kirsten H. Pabst, Missoula County Attorney, Andrew Paul, D. James 

McCubbin, Deputy County Attorneys, Missoula, Montana

Submitted on Briefs: May 6, 2015

 Decided: June 30, 2015

Filed:

__________________________________________

Clerk

June 30 2015

Case Number: DA 14-0687
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Marie Felton appeals from the District Court’s Memorandum and Order filed 

August 25, 2014. We reverse.

¶2 We re-state the issue on appeal as follows:

¶3 Whether the District Court properly dismissed Felton’s objection to forfeiture 

proceedings concerning her interest in a Hummer automobile.

BACKGROUND

¶4 In March 2013 law enforcement officers in Washington State contacted the 

Missoula Police asking for assistance in locating Bobby Bilderback, who was wanted in 

Washington in connection with a homicide investigation. Bilderback is Felton’s son. 

Missoula Police found Bilderback at a residence in Missoula, took him into custody, and 

seized a Hummer vehicle from the premises. Missoula Police Detective Curtis applied 

for and received a search warrant for the Hummer from the Montana Fourth Judicial 

District Court. Missoula officers executed the search warrant for the Hummer, finding a 

locked metal tool box that contained over $36,000 in cash and a plastic bag with 

methamphetamine residue in it.1 

¶5 On May 9, 2013, Mark Muir, then the Missoula Chief of Police, instituted this 

proceeding pursuant to § 44-12-102, MCA, seeking forfeiture of the Hummer, the cash 

and other items found during the search on the ground that they were involved in 

unlawful drug transactions. The Hummer had a Montana motor vehicle title that listed 

 

1 This opinion concerns only the interest in the vehicle. Felton has not presented any 

substantial argument that she was an owner of the money.
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the owners as Bilderback and Felton. Prior to commencement of the forfeiture action 

Detective Curtis knew that Felton was a title owner of the Hummer and interviewed her 

about it. Felton told Curtis that she was a title owner of the Hummer along with 

Bilderback and that she had no knowledge that either Bilderback or the vehicle was

involved in drugs. 

¶6 Based upon the Felton interview the Missoula Police unilaterally determined that 

she was a sham owner, and they were not required to name her in the forfeiture 

proceeding or to serve her with the summons and a copy of the forfeiture petition. The 

forfeiture petition named only Bilderback as a respondent and the only summons was 

served on him. Bilderback contested the forfeiture proceeding on the Hummer, in part, 

by arguing that Felton was an innocent owner and that her interest in the vehicle was 

therefore not subject to forfeiture. Felton also voluntarily appeared in the forfeiture 

action through the same attorney who represented her son, asserting her ownership 

interest and requesting an order that the Hummer be released to her. The District Court 

denied Felton’s motion for summary judgment on the innocent owner issue, concluding 

that there were genuine issues of material fact. 

¶7 The District Court set the forfeiture matter for hearing on May 21, 2014. Neither 

Bilderback nor Felton appeared at the hearing. The District Court received evidence 

from the State and ordered forfeiture. In June 2014 Felton moved to intervene in the 

forfeiture action. In August 2014 the District Court denied the motion to intervene, 

determining that Felton became a party when she appeared in October 2013 requesting 

release of the vehicle. The District Court also dismissed Felton’s claim that she was not 
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properly served with the forfeiture petition and summons, concluding that because Felton 

failed to appear at the May 21 hearing she had slept on her rights.

¶8 Felton appealed and filed an appellant’s brief with this Court on December 22, 

2014. In early February 2015 the petitioner requested and was granted a 45-day 

extension in which to file its responsive brief. Despite this, the petitioner never filed a 

brief in response to this appeal. 

STANDARD OF REVIEW

¶9 This Court reviews a district court’s interpretation and application of the law to 

determine whether it is correct. State v. Bieber, 2007 MT 262, ¶ 20, 339 Mont. 309, 170

P.3d 444. 

DISCUSSION

¶10 Issue: Whether the District Court properly dismissed Felton’s objection to 

forfeiture proceedings concerning the Hummer automobile.

¶11 Montana law provides that vehicles used or intended for use “in any manner to 

facilitate the commission of a violation of Title 45, chapter 9” [relating to offenses 

involving dangerous drugs] are subject to forfeiture. Section 44-12-102(1)(d), MCA. An 

officer who seizes property subject to forfeiture must institute forfeiture proceedings 

within 45 days. The summons issued by the clerk of the district court upon filing the 

petition must be personally served “upon an owner or claimant whose name and address 

are known.” Section 44-12-201, MCA. There is a rebuttable presumption of forfeiture, 

and a person served with the petition and summons must file an answer within 20 days of 

service, and if so the district court must set the matter for hearing. Section 44-12-203, 
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MCA. A person who files an answer to the petition and summons is entitled to rebut the

presumption of forfeiture by showing that the property was not used for the purposes 

alleged in the petition, or that it was used without the owner’s knowledge or consent. 

Sections 44-12-102(2)(b) and - 204, MCA.

¶12 This Court has recognized that the forfeiture statutes are based upon a “nononsense attitude . . . with respect to drug traffic,” but that they “must be enforced so as 

to avoid, to the greatest extent possible, prejudicing the rights of the party against whom 

they are directed.” State v. Hendrickson, 216 Mont. 401, 405, 701 P.2d 1365, 1368 

(1985). The “very exercise of the seizure and forfeiture statutes by the State is a serious 

infringement of the rights of the party whose property is seized without a hearing. Notice 

of the seizure and intent to obtain forfeiture “must be served on the owners of the 

property.” Hendrickson, 216 Mont. at 405, 701 P.2d at 1368. 

¶13 In Hendrickson this Court concluded that there is “strong reason to insist that the 

State provide proper notice so as to protect the innocent person from the unwitting 

surrender of his property.” Hendrickson, 216 Mont. at 405, 701 P.2d at 1368. In that 

case the owner was served with the petition and summons, but the summons failed to 

inform him of the requirement in § 44-12-203, MCA, that he file an answer within 20 

days. When Hendrickson failed to file an answer the district court entered his default to 

the petition. Hendrickson appeared in the proceeding to contest the default and the 

district court granted relief. The documents served upon Hendrickson were defective 

because they omitted notice of the requirement to respond and therefore violated due 

process. Hendrickson, 216 Mont. at 402-03, 701 P.2d at 1367. Because of the 
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importance of upholding the interests of potentially innocent owners of seized property, 

all statutory requirements in a forfeiture proceeding must be “rigidly adhered to.” 

Hendrickson, 216 Mont. at 404, 701 P.2d at 1367. Because notice to the owner was 

inadequate we upheld the district court’s order vacating the owner’s default.

¶14 In Magone v. Froehlich, 270 Mont. 381, 892 P.2d 540 (1995), officers arrested 

Froehlich’s husband for drug offenses and seized several firearms. She asserted 

ownership of the guns at the time of the seizure, but the subsequent forfeiture 

proceedings were instituted only against her husband. At the time of the forfeiture 

hearing Froehlich sent a note to the prosecutor again asserting her ownership interest in 

the guns. She provided her contact information but no one contacted her and she did not 

appear. The district court ordered forfeiture and Froehlich appealed. 

¶15 This Court reversed the forfeiture, acknowledging the requirement in Hendrickson 

that the State must strictly comply with the requirements of the forfeiture statutes. 

Froehlich, 270 Mont. at 385, 982 P.2d at 543. We concluded that a “claimant” entitled to 

receive service of the summons and petition under § 40-12-201, MCA, is “one who 

asserts a right, demand or claim” and that Froehlich had sufficiently made her claim 

known to qualify as a “claimant.” Froehlich, 270 Mont. at 386, 982 P.2d at 544. In 

addition, we held that neither actual notice of the forfeiture hearing nor allowing 

intervention were sufficient to substitute for service of the initial summons and petition.

We will not stand idly by and allow known, and possibly innocent, 

owners or claimants to have their property forfeited for failure to serve 

summons and copy of the petition as expressly required by § 44-12-201, 

MCA.
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Froehlich, 270 Mont. at 385, 982 P.2d at 546.

¶16 As to motor vehicles, a certificate of title is “prima facie evidence of the facts 

appearing on the certificate of title.” Section 61-3-435, MCA. If more than one owner is 

listed on a certificate of title, joint ownership with the right of survivorship “is 

presumed.” Section 61-3-202(4), MCA. In this case the motor vehicle title was prima 

facie evidence that Felton was an owner of the Hummer vehicle. The telephone 

conversation between the Missoula Police and Felton confirmed that she was a title 

owner. Therefore, service of the summons and petition on her was required by 

§ 44-12-201, MCA. Nothing in the forfeiture statutes allows the seizing authority to 

unilaterally conclude that a prima facie owner of seized property is only a sham owner 

who is not entitled to service. As we said in Froehlich, allowing the seizing authority to 

do so would

essentially gut the [forfeiture] statute, encourage the State to ‘not know’ of 

a clearly asserted claim to the property and, as a result significantly 

prejudice the claimant’s rights by shifting the entirety of the burden to the 

claimant.

Froehlich, 270 Mont. at 391-92, 982 P.2d at 546-47. The district court, not the seizing 

authority, has the responsibility to determine the extent of the claimant’s ownership in 

the property. Section 44-12-204, MCA.

¶17 Therefore, the District Court erred in determining Felton to be a party to the 

forfeiture action and in relying upon Felton’s presumed knowledge of the setting of the 

forfeiture hearing as adequate substitutes for timely service of summons and a copy of the 
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forfeiture petition as required by Montana law. The forfeiture proceeding was therefore 

ineffective in terminating Felton’s interest in the vehicle.

¶18 Reversed and remanded with instructions to vacate the order of forfeiture of the 

Hummer vehicle as to Marie Felton.

/S/ MIKE McGRATH

We Concur:

/S/ LAURIE McKINNON

/S/ PATRICIA COTTER

/S/ BETH BAKER

/S/ JAMES JEREMIAH SHEA