# FILED
January 25, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

THURSTON ANDREW HELMS ) ) Plaintiff/Appellant ) FOR PUBLICA TION ) v. ) FILED: JANUARY 25, 1999 ) TENNESSEE DEPARTMENT ) DAVIDSON CHANCERY OF SAFETY ) ) Hon. Irvin H. Kilcrease, Jr., Chancellor Defendant/Appellee. ) ) No. 01S01-9709-CH-00185 ) ) (Civil Forfeiture) )
For the Appellant : For the Appellee : E.E. Edwards, III & John Knox Walkup James A. Simmons Attorney General & Repor ter Edwards & Simmons Nashville, Tennessee Michael E. Moore Solicitor General Albert T. Partee, III Senior Counsel Paula D. Godsey Assistant Attorney Gener al



## OPINION

Court of Appeals Barker, J. Affirmed2 OPINION
We granted this appeal to determine if Article I, section 6 of the Tennessee Constitution affords the right to a jury trial i n cases under Tenn. Code Ann. § 53-11- 451 (Supp. 1992), involving the forfeiture of personal prope rty. The Court of Appeals held that Thurston Andrew Helms, the appellant and owner of the forfeited property in this action, was not enti tled to a jury trial . We affirm the judgment of the court below and conclude t hat in Tennes see there is no righ t to a jury trial in stat utory proceedings involving the forfeitur

e of personal property.

BACKGROUND
On May 4, 1992, Nashvi lle police officers seiz ed seven packets of cocaine and other drug paraphernalia fr om Mr. Helms’ residence at 3447 Golf Club Lane. The Davidson County Cr

iminal Court issued an ex parte order of seizure, p ursuant to Tenn. Co de Ann. § 45-2-706 (Supp. 19 92), requi ring Natio nsBank t o freeze $30,808.09 in three of Mr. Helms’ bank accounts. Th e trial court found probable cause to believe that the money was traceable to Mr.Helms’ alleged ill egal drug trade.
Following two hearings attended by Mr. Helms and his lawyer, the trial court determined that the money was subject to forfeiture under Tenn. Cod e Ann. § 53-11- 451 (Supp. 1992). The trial cour t directed NationsBank to s urrender the money to the police at which point the police were to prepar e and deliver the requi red notices of seizure. Na tionsBa nk compl ied with th e court or der by send ing the po lice two cashier’s checks, one for $3 0,808.09 and a second for $215.06. The polic e prepared a notice of seizure for each c heck identifying Mr.Helms as the owner of the sei zed3

money and listing his address as 3447 Golf Club Lane. The t wo notices were sen

t to the post office to be delivered by certified mail to the Golf Cl ub Lane address.
During that time, Mr. Helms filed a change of address w ith the post office, listing his new r

esidence as 286 April Lane. The po st office delivered the tw o notices of seizure to the April Lan e address on separate dates. M r. Helms signed for the notice concern ing the $215.06 ; however, no one was a vailable at his resid ence to sign for the notice concerning the $30,808.09. The post office left a note at the Apr il Lane address stating that the ce rtified letter could be picked up at the local post office. Approximately one w

eek later, the post office left a secon d notice at the residence and thereafter returned the certified letter to the police w

hen Mr. Helms failed to retr ieve it.
Mr. Helms did not file a timely claim for the money, and consequently, the entire $31,023.15 was forfeited without an administrative heari ng. Mr. Helms’ law yer requested the Commissioner of Safety to reconsider the forfeitur e order and to provide a hearing on the merits. When the request was denied, Mr. Hel ms filed a petition for review in the Dav

idson County Chancery Court alleging that the forfeiture statutes were unconstitutional on their face and as applied to him. He challen ged the forfeiture on grounds that he did not rec eive adequate notice and that he was denied the right to a jury trial as g uaranteed by Article I, section 6 of the Tennessee Constituti on.

In a bench trial, the chancer y court upheld the forfeiture and determined that Mr. Helms had received adequate notice of the forfeiture proceedings and that he did not have the right to a jury trial under the forfeiture statutes. The Court of Appeals affirmed the judgment of the trial cour t.
On appeal, Mr. Helms contends that the statutes govern ing the forfeiture of personal property denied his right to a jury trial under the Tennessee Cons titution.1 The record reflects that Mr. Helm s did not contest the forfeiture until after the administrative proc eed ings . Nev erthe less , his u ntim elines s dur ing th ose proc eed ings does not a ffec t this C ourt’s jurisdi ction on appeal . The administr ative pr oceedings were not

a proper forum for his constit utional claims

. See Richardson v. Tenn essee Bd. Of D entistry , 913 S.W .2d 446, 456 (Tenn. 1995 ). Moreover, once those proceedi ngs were final ized, h e sought judi cial re view in the chancery court and preserved t he constitution al issues for appe llate review. 4 The Department of Safety, (D.O.S.),argues for the first time that this Court is without jurisdiction to determine the merits of Mr. Helms’ c laim because Mr. Helms fail ed to raise it in a contested cas e hearing before the D.O.S. M r. Helms filed a claim for the money approximately t welve days after the Commissioner of Safety issued th e order of forfeiture. Mr. Helms rais ed the constitutional issue of the right to a jury trial in his petition for judicial review in the chancery court and in the Court of Appeals. 1
Although it appears from the record that Mr. Helms was untimely in both his claim for the money and his peti tion for judicial revi ew, the D.O.S. wait ed throughout the proceedings in chancer y court and the Court of Appeal s to raise any objecti on concerning timeliness. We, therefore, conclude that the D.O.S. has w aived any defense that it might otherwise have had in that reg ard.

DISCUSSION

In this case, we must deter mine whether the statutory forfeitures of personal property may be conducted without jury trials. The forfeiture of personal prop erty in drug-related cases is

governed by the Dr

ug Control Act. See Tenn. Code Ann. § 53- 11-451 (S upp. 199 2). Forfe itures un der that statute are condu cted by ad ministra tive agencies under the procedur es contained in Tenn. Code Ann. § 53- 11-201 (Supp. 1992), and Tenn. Code Ann. §§ 40-33-201 t o -214 (1997). Those statutes pr ovide public hearings when persons claim an interest i n the seized property.Neither statute allows for a jury trial. Although Tenn. Code A nn. §§ 40-33-201 to -214 did not y et2 At the time the forfeiture warrants were issued in this case, the adm inistrative proceedings were provided i n Tenn. Code Ann. § 53-11- 201 (Supp. 1992). In 1994, t he General Assembly amended those procee dings by en acting a u niform proced ure gov erning the forfeiture o f person al proper ty. See 1994 Pub. Acts Ch. 925, § 1 (codifi ed at Tenn. Code Ann. §§ 4 0-33-201 -- 214 ). The new provi sions supplant the procedures contained in Te nn. Code Ann. § 53-11 -201. Both provisions follow an administrative mod el without the use of ju ry trials.

3 If no clai m were filed t o contest t he forfei ture, as i n this case, then the pr operty was f

orfeited without an adm inistrative hea ring. Ten n. Code Ann. § 53 -11-203 (Supp. 1 992). 5 exist at the time of the forfeiture in this case, 2 we shall review it together with Tenn. Code Ann. § 53-11-201 in address ing Mr. Helms’ cons titutional claim.
During the times relev

ant in this case, the forfeiture p roceedings were pro vided in Tenn. Code Ann. § 53-11-201 (Supp. 1992). Mr. Helms was required to file a time ly claim with the Commissi oner of Safety if he wished to claim an interest in the sei zed property. Tenn. Code Ann. § 53-11-201(c)(1). 3 Claimants were entitled to a public hearing before the Commissioner of Safety in which the State had the burden of proving by a prepond erance of the evidence that the pr operty should be forfeited. Tenn. Code Ann. § 53-11-201(d)(1) (A) - (2). Any par ty aggrieved by

the Commissioner’s decision had the right to seek judi cial review in the Chancery Court of Davidson County, w

ith review limited to the administrative record and conducted without a jury in accordance with the Uniform Administrative Procedu res Act. See Tenn. Code Ann. § 4-5-322(a)(1) , (b)(1), (g) (Supp. 1992).
Similar to those proceedings, the new procedure codified at Tenn. Code Ann. §§ 40-33-201 -- 214 (Supp. 1994) , follows an administrati ve model for the forfeiture of property. Persons seek ing to contest forfeiture of person al property under the Dr ug Control Act must file a timel y claim with the C

ommissioner of Safety. Tenn. Code Ann. § 40-33-206 (1997). Cla imants are then entitled to a co ntested case hearing under th e Unifor m Admini strative P rocedure s Act in whic h the Sta te must p rove by a preponderance of the evidence that the property at issue i s subject to forfeiture. Tenn. Code Ann. §§ 40-33-209(d), 210( a). The party dissatis

fied with the4 In denyi ng Mr. Helms’ clai m, the Court of Appeal s relie d upon its prior deci sion in Jones v. Greene , 946 S.W .2d at 824 -25. 6 Commissioner’s final order may seek judicial rev

iew by filing a w

ritten notice in either the circuit or chancery court of Davidson County. Tenn. Code Ann. § 40-33-213(c) (1997). J udicial re view is cond ucted with out a jury a nd is limit ed to the administ rative record, except to the ex tent that Tenn. Code Ann. §§ 4-5-322( e) and 322(g) permit the introduction of additional ev idence.

Mr. Helms contends that the for feiture statutes violate Ar ticle I, section 6 of the Tennessee Constitution because they do not provide fo r jury trials in the public hearings or judicial

review. We disagree.

Article I, section 6 of our Constitution does not guarantee the right to a jury trial in every case. The text of that provision reads, “[t]hat the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors. ” This right has been interpreted to be a trial by jury as it exis

ted at common law, Marler v. Wear , 117 Tenn. 244, 246, 96 S.W. 447, 448 (1906), or more specifically, “the

common law under the law s and constitution of North Car olina at the time of the adoption of the T ennessee Constitution of 1796.” Patten v. State , 221 Tenn. 337, 344, 426 S.W.2d 503 506 (Tenn. 1968), cert. denied , 400 U.S. 844, 91 S.Ct. 88, 27 L. Ed.2d 80 (1970).For rights and remedi es created after the formation of our Constitution, the l egislature is free to enac t procedures that do not include jury trial s. Newport Housing Authority v. Ballard , 839 S.W.2d 86, 88 (Tenn. 1992).
The Court of Appeals has previ ously addressed whether Article I, section 6 affords the right to a jury trial in forfeitures of personal property. See Jones v. Greene , 946 S.W.2d 817, 82 3-24 (Tenn. App. 1996). 4 In an opinion by Judge Koch, the court5 The General Assembly has prov ided the right to trial by jury in cases inv

olving f orfeit ure of real property. See Tenn. Code Ann. § 53-11- 452(c)(4) ( Supp. 1998). Those cases a re tri ed in the ci rcuit or chanc ery court of the coun ty where the property is loc ated. Te nn. Cod e Ann. § 53-11-4 52(c)(1 ). 7 detailed the history of Tennessee’s civil forfeiture law, beginning with the Uniform Narcotic Act of 1937. Id. at 820. That statute established a judicial forf eiture proceeding in which a judge or magistrate pr esided without a jury

on the forfeiture of various narcotic dr

ugs. Id. (citing Tenn. Code Ann. § 52- 1315).

As the court in Greene noted, Tennessee’s forfeiture law s followed a judicial model until 1955. Id. at 820. In that year, the Gen eral Assembly adopted an administrative proceedi ng in which the Commis sioner of Safety was authori zed to decide forfeiture claims. Id. at 820-21 (citing Tenn. Co de Ann. § 52-1404). Judicial review was av

ailable by filing a c

ommon-law writ of cer

tiorari in the Circuit Court of Davidson County. Id. at 821 (citing Tenn. Code Ann.§ 52-1405). However, in both the initial hearings an d judicial review , there was no allow ance for jury trials.
Tennessee statutes governi ng the forfeiture of drugs and other personal property have consistently omitted the use of jury trials. 5 The Court of Appeals in Greene upheld those provisions as “new remedies” cr eated by the legislatur

e after the formation of our Constitution. 946 S. W.2d at 825. The court, however, did not address whether simil ar forfeiture procedures exi sted under the common law of Nor th Carolina. See id.
Our inquiry is whether at the time of 1796, North Carolina recognized civil forfeiture proceedings with the right to jury trials. Mr. Helms relies upon early English common law and colonial records to argue that forfeiture procee dings both existed in North Carolina and wer e tried by juries. In a well-researched brief, Mr. Helms refers to6 See Smethwick v. Willi amson , 5 Colon ial Recor ds 385 (Gene ral Court 1 723). 8 historical qui tam

actions and executive

orders sent by the Eng lish Crown to the governor-in-chie

f of the North Carolina prov ince.

Qui tam actions originated by

statute in England, allow ing individual informant s to sue other citizens for particular acts of commissi on or omission against the Crown. The suits were filed in the Courts of Exchequer and if the informant won, he divided the penalty with the C rown. See e.g. Mitchell, who Prosecutes for the King and [himself] v. Torup , Parker 227, 145 Eng. Rep. 764 (F.x. 1766). Although this practice involved jury trials and was adopted i n colonial North Carol ina, 6 it is significantly different from civil forfeiture and i s unpersuasive in this case.

Mr. Helms also relie

s on two executiv

e orders sent by King

George II to the governor-in-chief of the North Carolina province. In two orders sent by the king in 1754, Governor Arthur Dobbs was directed to establish a Court of Exchequ er and was given a procedure for the selection of jurors. Instructions to Governor in Chief , 8 Colonial Records of North Carolina: Records of the Ex ecutive Council, 1735-1 754, R.J. Cain, ed. 490, 520, 531 (1 988). The colonial records show that the North Carolina province had jury proceedings i n courts similar to the c ommon law Court of Exchequer. The records, however, are sparse and do not show evidence of forfeiture proceedings in the North Carolina province or

in early North Car

olina statehood.

From other American colonies , it is well-document ed that jurisdiction ov

er the forfeiture of property, as ex ercised by the Court of Ex chequer in England, w

as adopted by colonial courts in common law proceedings. See United States v. One 1976 Mercedes Benz 280S , 618 F.2d 453, 466 (7th Cir. 1980). Forfeiture in those courts was in rem

against the property in question and was tr ied by a jury, si milar to7 See United Stat e v. One 1976 Mercedes Benz 280S , 618 F.2 d 453, 46 9 (7th Cir. 1 980); Idaho Dept. Of Law Enforcement v. Free , 126 Idah o 422, 42 5-26, 88 5 P.2d 3 81, 384- 85 (199 4); Peo ple ex rel. O’Malley

v. 6323 North LaCrosse Avenue , 158 Il l.2d 453, 458, 199 Il l. Dec. 690,693, 634 N.E.2d 743, 746 (19 94); Comm onwealth v. 1984 Z-28 Camaro Coupe , 530 Pa. 523, 532, 610 A.2d 36, 41 (199 2); Medlo ck v. 1985 Fo rd F- 150 Pi ck Up , 308 S.C . 68, 72-73 , 417 S.E .2d 85, 87 (1992); In re Forfei ture of 1978 Chevrolet

Van , 493 So .2d 433, 4 36-37 (F la. 1986); Comm onwealth v. One 1972 Chevrolet Van , 385 M ass. 19 8, 201-0 2, 431 N .E.2d 20 9, 211 (1 982); People v. One 1941 Chevr olet Coupe , 37 Cal. 2 d 283, 299 -300, 23 1 P.2d 8 32, 844 ( 1951); State v. 1920 Studebaker Touri ng Car , 120 Or. 254, 271, 251 P. 701, 70 6 (1926 ); Colon v. Li sk , 153 N.Y . 188, 198 , 47 N.E. 3 02, 305 ( 1897).

8 The North Caroli na Court of Appeal s has upheld a st ate forfei

ture stat ute that omits the use of jury trials in drug -related fo rfeiture ca ses. State v. Mo rris , 103 N.C. App. 246, 250, 405 S. E.2d 351, 353 (N.C . Ct. A pp. 1 991 ). Th e cou rt bas ed its decis ion in p art up on fin ding t hat th e righ t to trial b y jury in alcohol-re lated forfe iture case s did not e xist at com mon law or by statu te in 1868

. See id. 9 the traditional procedure i n Exchequer. C.J. Hendry Co. v. Moore , 318 U.S. 133, 139- 40, 63 S.Ct. 499, 502, 503, 87 L.Ed. 663 (1943).
Several jurisdicti ons in the United States hav e borrowed from the early colonial practice and have incorporated the use of jury trials into modern forf eiture proceedings. If not prescr ibed by statute, those states have recognized the right to a jury trial in forfeitur

e cases based upon their respec tive constitutions and the common law in both England and c olonial America. 7

Tennessee, however, differs from al l other states in focusing upon the common law of North Carolina to interpret the jury trial guarantee under the S tate Constitution. Patten v. State , 221 Tenn. at 344, 426 S.W .2d at 506. From our review of the law in North Carolina and Tennessee, w e find no evidence that those stat es followed or adopted the forfeiture proceedings fro m English common law. Moreover, even if forfeiture existed in North Carolina and the Tennessee territory before 1796, there is no evidence that jury trials were the mode for resolving those types of cases. 8
When addressing the constitut ionality of a statute, we afford considerable discretion to the General A ssembly and resolve an y reasonable doubt in favor of the legislative acti on. In re Burson , 909 S.W.2d 768, 775 (Tenn. 1995); Great Atlantic & Pacific Tea Co. v. McCanless , 1 78 Te nn . 3 54 , 3 55 , 1 57

S. W.2 d 8 43 , 8 44

(1 94 2) . We10

find reasonable doubt in this case and uphold th e constitutionality of the forfeiture provisions.

CONCLUSION
The General Assembly enacted forfeiture statutes and amended them over time to combat the rise of drug- related crimes in Tennessee. The modern procedures for the forfeiture of personal property are administrative, ex

cept for judicial revi ew, and are intended to afford due process to the interested claimants. In a ddition, the procedures provide an efficie nt means of enforcing anti-drug and contraband regulations, with a ll the rights and remedi es created by statute.
Having found no evidence that those or similar proc eedings existed under North Carolina common law in 1796, we conclude that the statutes for the forfeiture of personal property are v alid under Article I, s

ection 6. The judgment of the Court of Appeals is affirmed with costs assessed against the appellant, Mr. Helms.

_____________________________ WILLIAM M. BARKER, JUSTICE

CONCUR: Anderson, C.J. Drowota, Birch, Holder, JJ.SUPREME CO URT, NASHVILLE

THURSTON ANDREW HELMS ) ) Plainti ff/Appel lant ) DAVIDSON CHANCE RY ) NO. 92-3 515-I v. ) ) NO. 01S01-9709-CH-00185 TENNESSEE DEPARTME NT ) OF SAFETY ) Court of Appeals Affir med ) Defendant/Appel lee. ) )

JUDGMENT This case was heard upon the record on appeal from the Cou rt of Appeals, application for permission to appeal having heretofore been granted, briefs and argument of counsel; and upon consid eration thereof, this Court i s of the opinion that there is n o right to a jury trial in the civil f orfeitu re of per sonal pro perty.
In accordance with the opi nion filed herein, it is, therefore, ordered and adjudged that the judgment of the Court of Ap peals is affirmed, and the case is remanded to the Chancery Cour t of Davidson County for th e collection of costs accrued b elow.
Costs of appeal will be paid by the appellant, Thurston Andrew Helms.

01/25/99