IN THE SUPREME COURT OF IOWA

No. 08–1369

Filed April 9, 2010

IN THE MATTER OF PROPERTY SEIZED FOR

FORFEITURE FROM MICHAEL WAYNE YOUNG,

MICHAEL WAYNE YOUNG,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, Jon C. 

Fister, District Court Judge, and Nathan A. Callahan, District Associate 

Judge.

Claimant seeks further review of the forfeiture of his handgun 

asserting that the governing statute violates procedural due process. 

DECISION OF THE COURT OF APPEALS VACATED IN PART AND 

AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED. 

Michael Young, Tama, pro se.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant 

Attorney General, Thomas J. Ferguson, County Attorney, and Brad P. 

Walz, Assistant County Attorney, for appellee.
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APPEL, Justice.

This case presents a question regarding the proper interpretation 

and constitutionality of a provision of Iowa forfeiture law. A property 

owner challenges the statutory scheme for a type of in rem forfeiture 

proceeding asserting that the code prevents him from filing an answer to 

the State’s forfeiture complaint in violation of his right to procedural due 

process. 

I. Factual and Procedural History. 

In 2002, a state trooper noticed a truck pulled over on the side of 

the road and conducted a welfare check on the occupants. Michael 

Young was seated in the driver’s seat, had bloodshot, watery eyes, and 

was slow to respond to the trooper’s questions. While conducting the 

check, the trooper observed a twelve-pack of beer on the passenger-side

floorboard and an empty holster on the passenger seat. Young admitted 

that he had a loaded handgun under the front seat. He further stated 

that he had lost count of the number of alcoholic beverages he 

consumed. 

The trooper placed Young under arrest and seized the handgun 

and ammunition. The State charged Young with illegal possession of a 

handgun in violation of Iowa Code section 724.4 (2001) and operating a 

motor vehicle while under the influence of alcohol in violation of section 

321J.2. 

More than five years after the gun and ammunition were seized, 

the State filed an in rem forfeiture complaint. Young filed a preanswer 

motion to dismiss, raising three issues. First, Young claimed that the 

forfeiture complaint violated the applicable statute of limitations because 

a notice of pending forfeiture was not filed within ninety days of the 

seizure of the property. Second, he claimed that the complaint violated 
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the general five-year statute of limitations for forfeiture actions as the 

last conduct, act, or omission giving rise to the forfeiture was more than 

five years prior to the commencement of the action. Third, Young 

asserted that the in rem forfeiture was unconstitutional because the 

Code specifically prevented him from filing an answer in violation of state 

and federal due process guarantees. 

The district court rejected the first two arguments on the merits. 

The district court did not specifically rule on the constitutional issue, but 

instead allowed Young to file an answer to the State’s in rem complaint. 

Young declined to file an answer, however, and the district court entered 

an order granting the State’s application for forfeiture by default.

Young appealed. The court of appeals affirmed the district court’s 

ruling. On the constitutional issue, a majority of the court of appeals 

held that Iowa Code section 809A.13(3) (2007) should be interpreted as 

not applying to cases where the State initiates an in rem proceeding 

without first serving a notice of forfeiture. Upon such an interpretation,

aggrieved property owners would retain the ability to file an answer. A 

concurring opinion reached the same result, but did so by declaring Iowa 

Code section 809A.13(3) unconstitutional under the statute’s plain 

meaning. 

We granted further review. Upon further review, we limit 

consideration of this case to the constitutionality of Iowa Code section 

809A.13(3) as applied. See Botsko v. Davenport Civil Rights Comm’n, 774 

N.W.2d 841, 844 (Iowa 2009) (noting that when this court takes further 

review it may address all issues raised on appeal or limit discussion to 

selected issues). 
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II. Standard of Review.

The court’s review of forfeiture proceedings is for correction of 

errors at law. In re Prop. Seized from DeCamp, 511 N.W.2d 616, 619 

(Iowa 1994). To the extent that the petitioner raises constitutional 

issues, this court’s review is de novo. In re Prop. Seized from Terrell, 639 

N.W.2d 18, 21 (Iowa 2002).

III. Discussion.

A. Overview of Iowa Code Chapter 809A.

1. In personam and in rem forfeiture procedures. Entitled the 

Forfeiture Reform Act, Iowa Code chapter 809A establishes two types of 

forfeiture proceedings—in personam and in rem. Iowa Code §§ 809A.13, 

.14. In personam forfeiture occurs pursuant to Iowa Code section 

809A.14 and is not at issue in this case.

In rem proceedings are governed by Iowa Code chapter 809A.13. 

Under Iowa Code section 809A.13(2), an in rem action may be brought by 

the prosecuting attorney “pursuant to a notice of pending forfeiture or 

verified complaint for forfeiture.” The use of the term “or” in Iowa Code 

section 809A.13(2) indicates that there are two different ways in which 

an in rem proceeding might be brought. 

2. In rem proceedings pursuant to a notice of pending forfeiture. 

Under Iowa Code section 809A.13(2), an in rem proceeding may be 

brought “pursuant to a notice of pending forfeiture.” The Code provides 

that a notice of pending forfeiture must be served on the owner and 

interest holders of the property involved by personal service or certified 

mail, subject to certain exceptions. Iowa Code § 809A.8(2)(a)–(b). Once 

the notice of forfeiture is served, the owner or interested party may file 

within thirty days a claim in the property, a petition for recognition of an 

exemption, or an extension of time to file a claim or petition. Id.
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§ 809A.8(1)(b)(2). If a timely claim or petition for recognition of 

exemption is received, the prosecuting attorney may then file an action 

for judicial forfeiture under the timeline described in the Code. Id. 

§ 809A.8(1)(d). If a timely claim or petition for recognition of an 

exemption is not received, the prosecuting attorney may proceed to 

dispose of the property according to Iowa Code sections 809A.16 and 

809A.17. Id. § 809A.8(1)(e).

3. In rem proceedings pursuant to a verified complaint. The Code 

also authorizes the commencement of an in rem forfeiture proceeding 

through the filing of a verified complaint. Id. § 809A.13(2). This is a 

different procedure than that which arises through the filing of a notice 

of pending forfeiture. It amounts to a direct resort to courts rather than 

a process that involves the service of a notice of pending forfeiture and 

subsequent filing of claims and exemptions with the prosecuting attorney 

prior to invoking the judicial process. 

While the prosecuting attorney is authorized to proceed directly to 

judicial process through the filing of a verified complaint under Iowa 

Code section 809A.13(2), the next provision of the Code contains a 

procedural limitation that appears to apply to all in rem forfeiture 

actions. That section provides, “Only an owner of or an interest holder in 

the property who has timely filed a proper claim pursuant to section 

809A.11 may file an answer in an action in rem.” Id. § 809A.13(3).

Under Iowa Code section 809A.11(1), a proper claim in seized 

property is timely filed “within thirty days after the effective date of notice 

of pending forfeiture.” Id. § 809A.11(1). Where the prosecuting attorney 

commenced forfeiture pursuant to a verified complaint, however, there is 

no notice of pending forfeiture and no requirement that a claim be filed 

within thirty days. The only notice required for forfeiture of property 
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pursuant to an original verified complaint is service of the verified 

complaint itself. Literally read, Iowa Code section 809A.13(3) appears to 

prohibit an owner or interested party from defending a forfeiture initiated 

pursuant to a verified complaint. 

B. Statutory and Constitutional Issues Under Iowa Code 

Section 809A.13(3). We begin our discussion by agreeing with all 

parties to this case that a statutory scheme which would allow the 

forfeiture of property without notice and an opportunity to be heard 

would violate due process under the United States and Iowa 

Constitutions.1

One possible approach in this case is to avoid the constitutional 

problem by holding that the limitation in section 809A.13(3) simply does 

not apply to in rem proceedings commenced pursuant to a verified 

complaint. This approach makes sound policy sense and would conform 

to the presumption of statutory constitutionality and our mandate to 

construe statutes in a fashion to avoid a constitutional infirmity where 

possible. Iowa City v. Nolan, 239 N.W.2d 102, 103 (Iowa 1976).

 U.S. Const. amend. XIV, § 1; Iowa Const. art. I, § 9; see 

also Dusenbery v. United States, 534 U.S. 161, 167, 122 S. Ct. 694, 699, 

151 L. Ed. 2d 597, 604 (2002); War Eagle Vill. Apartments v. Plummer, 

775 N.W.2d 714, 719 (Iowa 2009). The issue presented in this case, 

therefore, is whether Iowa Code section 809A.13(3) can be construed to 

allow aggrieved property owners and interested parties to file an answer 

to a verified forfeiture complaint. 

Such a possibility, however, does not exist here. We conclude that 

the plain meaning of section 809A.13(3) does not allow for judicial 

rescue. The language is not ambiguous, Carolan v. Hill, 553 N.W.2d 882, 

 1As a result, it is not necessary to consider whether the state due process clause 

should be construed in a fashion different from its federal counterpart. See generally 

State v. Bruegger, 773 N.W.2d 862 (Iowa 2009). 
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887 (Iowa 1996), and we are not confronted with conflicting statutory 

directives that must be harmonized or read in pari materia. State v. Nail, 

743 N.W.2d 535, 540–41 (Iowa 2007). Instead, in section 809A.13(3) we 

have plain, straightforward language which prohibits a party from filing 

an answer where a timely claim has not been made. It is located under 

the general section applying to all in rem proceedings. There is no 

qualifying or limiting language in this or other related statutory 

provisions. In fact, the opposite is true, as the statute provides that 

“[o]nly an owner” who has filed a proper claim can file an answer. Iowa 

Code § 809A.13(3) (emphasis added). Though it is a matter of art rather 

than science, we conclude that we cannot avoid the constitutional issue 

posed by the plain language of Iowa Code section 809A.13(3). See 

Carolan, 553 N.W.2d at 887.

As a result of our approach to the statute, we conclude that the 

statute cannot be constitutionally applied in forfeiture proceedings 

commenced by verified petition. To do so would violate the due process 

rights of property owners or interested parties to notice and a meaningful 

opportunity to be heard. Dusenbery, 534 U.S. at 167, 122 S. Ct. at 699, 

151 L. Ed. 2d at 604; War Eagle Vill. Apartments, 775 N.W.2d at 719. 

Our approach, however, does not require reversal of the district 

court judgment in this case. Although the basis of the district court 

opinion is opaque, the district court afforded Young an opportunity to file 

an answer to the verified complaint of forfeiture. The district court did 

exactly what it should have done, namely, declined to apply the mandate 

of Iowa Code section 809A.13(3) to proceedings initiated by verified 

complaint and proceeded to provide Young with an opportunity to 

present an answer. In short, Young was afforded the process that was 

due—notice of the forfeiture and an opportunity to defend. The fact that 
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he chose to decline the constitutionally adequate opportunity to be heard 

below cannot be used as a bootstrap to create a constitutional infirmity 

on appeal.

IV. Conclusion.

For the above reasons, the opinion of the court of appeals is

vacated in part and affirmed in part, and the district court judgment is 

affirmed.

DECISION OF THE COURT OF APPEALS VACATED IN PART 

AND AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.