IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE SEIZURE OF A 1988 CHEVROLET VAN, CALIFORNIA 

LICENSE NUMBER 3M38781. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marc Racicot, Attorney General, Helena, Montana; 

Paul D. Johnson, Assistant Attorney General, 

Helena, Montana; Mike ~alvagni, County Attorney, 

Bozeman, Montana; Marty Lambert, Deputy county 

Attorney, Bozeman Montana. 

I: For Respondent: 

$]Y-!, - +j:l yJ] Helene Orenstein, Attorney at Law, Bozeman, Montana. 

Filed: 

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Submitted on briefs: July 16, 1991 

Decided: December 30, 1991 

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Justice R. C. McDonough delivered the Opinion of the Court. 

The State of Montana appeals the order of the District Court 

of the Eighteenth ~udicial District, Gallatin County, dismissing 

the State's petition for forfeiture and releasing the respondent's 

Chevy Van. The District Court found it within its discretionary 

power to release the van to protect the interests of a lienholder 

despite entering default against that lienholder. We reverse. 

The dispositive issue on appeal is whether the District Court 

abused its discretion by denying and dismissing the petition for 

forfeiture. 

Brian Soule and his wife Elizabeth Soule were arrested for 

possession of dangerous drugs and paraphernalia, violations of 

Title 45, Chapter 9, MCA. The circumstances surrounding their 

arrest were as follows. Law enforcement authorities in Los 

Angeles, upon a security check at the airport, discovered a package 

containing drugs bound for Brian Soule via Gallatin Field. The 

authorities in Los Angeles notified Gallatin County and a search 

warrant was obtained. Upon arrival of the package at Gallatin 

Field, Brian Soule claimed the package, walked to the subject Chevy 

Van, which was owned by Brian Soule, and drove it across the 

airport to a parking lot. The officers approached the van, 

presented the warrant and the subsequent search yielded illegal 

drugs and paraphernalia. Brian and Elizabeth entered a plea 

agreement and pled guilty to felony possession of dangerous drugs, 

misdemeanor possession of dangerous drugs and misdemeanor 

possession of drug paraphernalia. 

2 
The instant case is a civil proceeding filed under 5 44-12-102 

(1) (d), MCA, which provides in part for the forfeiture of "all 

conveyances, including. . . vehicles, . . . that are used or 

intended for use in any manner to facilitate the commission of a 

violation of Title 45, Chapter 9." There is no dispute that 

Brian's father, Peter Soule, has a security interest in the Chevy 

Van. Both Peter and Brian were served with copies of the summons 

and petition. The State presented an affidavit of service on Peter 

Soule. 

Brian Soule filed an answer to the complaint, alleging the 

forfeiture of the Chevy Van was subject to his father's secured 

interest because his father neither had knowledge of, nor consented 

to ~rian's violation of Title 45, Chapter 9. Peter Soule did not 

respond on his own behalf and at the hearing, the court entered a 

default of Peter Soule. 

However, the District Court, relying on § 44-12-205(3), MCA, 

found broad discretionary powers to release the vehicle to protect 

the interests of Peter Soule. Section 44-12-205 (3) , MCA, provides: 

In making a disposition of property under this chapter, 

the court may take any action to protect the rights of 

innocent persons. 

The District Court found: 

there (was) not a scintilla of evidence that Peter W. 

Soule was aware of, or had anything to do with Brian and 

Elizabeth Soulets possession or use of illegal drugs, or 

drug paraphernalia. 

As such, the District Court determined Peter Soule to be an 

innocent person within the meaning of 5 44-12-205 (3), MCA, and the 

court acted to protect his interest. 

3 
The standard of review for discretionary trial court rulings 

is whether the trial court abused its discretion. Steer, Inc. v. 

Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Section 44- 

12-205(3), MCA, makes clear that the legislature was sensitive to 

the rights of innocent persons and granted broad discretion to the 

courts to protect those rights. However, the legislature has also 

provided specific provisions regarding the protection of the rights 

of claimants with a security interest in seized property. See 55 

44-12-204, and 205(2), MCA. Section 44-12-203, MCA, states: 

There is a rebuttable presumption of forfeiture as to all 

propertv listed in 44-12-102... (Emphasis supplied.) 

The Chevy Van is clearly within the scope of property listed in g 

44-12-102, MCA: Section 44-12-204, MCA, provides: 

In order to rebut the presumption of forfeiture: 

(3) a claimant of a security interest in the 

property who has a verified answer on file must prove 

that his security interest is bona fide and that it was 

created after a reasonable investigation of the moral 

responsibility, character, and reputation of the 

purchaser and without knowledge that the property was 

being or was to be used for the purpose charged. . . . (Emphasis supplied.) 

Here, Peter Soule failed to file an answer, failed to appear and 

offered no proof of anything whatsoever. 

Section 44-12-205(2)(a), MCA, provides the following: 

If proper proof of his claim is presented at the hearing 

by the holder of a security interest, the court shall 

order the property released to the holder of the security 

interest. . 

Brian Soule, not his father, claimed the lien, in his answer, as an 

affirmative defense to the forfeiture. Brian has no standing nor 

did he present any evidence to support his father's claim. 
"The judicial function in construing and applying statutes is 

to effect the intention of the legislature. In determining 

legislative intent, the court looks first to the plain meaning of 

the words used in the statute." State ex. rel. Roberts v. Public 

Service Commission (1990), 242 Mont. 242, 790 P.2d 489. The 

language of the forfeiture statutes cited above is clear. 

Apparently, the court was apprehensive about placing an 

affirmative duty on Peter Soule to prove that he was an 'innocent 

person' entitled to return of the Chevy Van. The legislature had 

no such apprehension. The presumption is for forfeiture and the 

burden rests on the secured interest holder to rebut that 

presumption. Sections 44-12-203 to 204, MCA. It has long been 

held under Montana statutes that a presumption remains until 

rebutted by preponderance of contrary evidence and disappears only 

when the party to whom it is opposed produces sufficient evidence 

to preponderate against it. N.Y. Life Insurance Company v. Gamer, 

(9th Cir. 1939), 106 F.2d 375. 

Peter Soule received proper notice and failed to assert his 

rights and therefore default was properly entered. Peter Soule 

failed to rebut the presumption as required by 5 44-12-102, MCA. 

We conclude that the District Court abused its discretion by 

acting in a manner inconsistent with the statutes on forfeiture. 

The order of the District Court is reversed. 
Justices 
Justice Karla M. Gray, dissenting. 

I respectfully dissent from the opinion of the majority. 

Briefly stated, the majority notes the existence of § 44-12-205(3), 

MCA, granting the district court broad discretionary authority, and 

then goes on to ignore it altogether. The majority does not 

attempt to construe the subsection either on a stand-alone basis, 

as part of the statute within which it is contained, or in relation 

to the other statutes comprising the Montana Forfeiture Act. This 

lack of analysis results in giving g 44-12-205(3), MCA, no effect 

whatsoever. I cannot agree. 

Facts in addition to those set forth in the majority opinion 

are important to an appropriate analysis of the case before us. A 

bench trial on the forfeiture petition was held on June 25, 1990. 

Brian Soule was represented by counsel, but neither he nor his 

father appeared. At the outset of the proceeding, the State 

requested, and the court entered, a default of Peter Soule for 

failure to respond or appear; no default judgment was entered. 

The proceeding continued, with Lieutenant Christie as the only 

witness. Christie first testified to the circumstances surrounding 

the arrest of Brian and Elizabeth Soule. He explained, on direct 

examination, that he had found a receipt in the vehicle indicating 

that Peter Soule was the holder of a security interest in the van. 

Christie then testified in some detail about a telephone 

conversation he had with Peter Soule; Peter Soule indicated during 

the conversation that he had co-signed a GMAC loan with Brian in 

order to help Brian purchase the van. Peter Soule later paid off 

7 
the loan on the understanding that Brian would pay him back, which 

Brian never did. Peter Soule told Christie that he was aware of 

Brian's drug problems and had attempted to help by paying for a 

drug treatment program for both Brian and Elizabeth, and by sending 

them to Brian's grandmother in Montana after their release from 

that program in hopes of getting them away from drugs. 

Briefs were submitted on July 9, 1990. The District Court 

subsequently entered its judgment releasing the van to Peter Soule 

and dismissing the petition for forfeiture with prejudice. 

The issue is whether the District Court erred in finding Peter 

Soule an innocent person and dismissingthe petition for forfeiture 

pursuant to lj 44-12-205(3), MCA. The standard of review for 

discretionary trial court rulings is whether the trial court abused 

its discretion. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 

470, 475, 803 P.2d 601, 603-604. 

The procedural requirements for forfeiture proceedings of the 

type before us are set forth in 85 44-12-201 et seq., MCA. Section 

44-12-204, MCA, provides detailed provisions by which owners and 

claimants of security interests with verified answers on file can 

rebut the presumption of forfeiture which arises under § 44-12-203, 

MCA. subsections (1) and (2) of 5 44-12-205, MCA, provide for 

mandatory dispositions of property in the event certain findings 

are made by the court based on proof presented at the hearing by an 

owner or a holder of a valid security interest in the property at 

issue. Section 44-12-205(3), MCA, on the other hand, allows the 

court to ''take any action to protect the rights of innocent 
persons" in disposing of property otherwise subject to forfeiture. 

This Court consistently follows the fundamental rule of 

statutory construction that: 

[Tjhe judicial function in construing and applying 

statutes is to effect the intention of the legislature. 

In determining legislative intent, the Court looks first 

to the plain meaning of the words used in the statute. 

If intent cannot be determined from the content of the 

statute, we examine the legislative history. 

State ex rel. Roberts v. Public Service Commission (1990), 242 

Mont. 242, 246, 790 P.2d 489, 492. 

The language of 5 44-12-204, MCA and subsections (1) and (2) 

of 5 44-12-205, MCA, are clear and plain and susceptible of only 

one interpretation on a stand-alone basis. Under these 

subsections, the court has no discretion in how it disposes of 

property subject to forfeiture. There is no doubt that Peter Soule 

did not make the requisite showing to protect his interest in the 

van under these sections. 

The intended interplay between the sections discussed above 

and subsection (3) of 5 44-12-205, MCA, as well as the intended 

meaning of "innocent persons" therein, however, cannot be 

ascertained from the words themselves. Therefore, it is necessary 

to focus specifically on both the language and the legislative 

history of 5 44-12-205(3), MCA. 

Section 44-12-205(3), MCA, provides that "[iln making 

disposition of property under this chapter, the court may take anv 

action to protect the rights of innocent persons." (Emphasis 

added.) This wording clearly grants a trial court the broadest 

possible discretion in protecting the interests of innocent 

9 
persons. It is also clear, from the absence of any limiting 

language, that such discretion can be exercised in favor of any 

innocent person. In addition, nothing in the sweeping grant of 

discretion suggests that an "innocent person" must have jumped 

through the procedural hoops otherwise provided for lienholders. 

The majority adopts the State's position that we must read 

into 5 44-12-205(3), MCA, the requirements of § 44-12-204 and 5 44- 

12-205 (1) and (2), MCA. Nothing contained therein suggests such 

a reading. "In the construction of a statute, the office of the 

judge is . . . not to insert what has been omitted. . . ." Section 

1-2-101, MCA. 

For the most part, the Montana Forfeiture Act is patterned 

after the federal act found at 21 U.S.C. 5 881. Section 44-12- 

205 (3) , MCA, however, is unique to Montana and, as such, we must 

assume that the legislature included it for a particular reason. 

It is this Court's duty to ascertain that legislative intent and, 

insofar as possible, give it meaning in interpreting and construing 

the statutes involved. Palmer v. Montana Ins. Guar. Ass'n (1989), 

239 Mont. 78, 779 P.2d 61. Thornock v. State (l987), 229 Mont. 67, 

745 P.2d 324; Darby Spar. Ltd. v. Dept. of Revenue (1985), 217 

Mont. 376, 705 P.2d 111. 

The Montana legislature added 44-12-205 (3) , MCA, to the 

Montana Forfeiture Act in 1987. The statute must have meaning as 

we presume the legislature does not pass meaningless laws. Mills 

v. Commissioner of Insurance (1987), 226 Mont. 387, 736 p.2d 102; 

Crist v. Segna (1981), 191 Mont. 210, 662 P.2d 1028. We also 
presume that this amendment changed the law in some way or the 

legislature would not have added it to the existing law. Cantwell 

v. Geiger (1987), 228 Mont. 330, 742 P.2d 468. 

The 1987 bill amending the Montana Forfeiture Act originally 

was introduced to expand and broaden the Act and to enhance 

cooperation between federal and state agencies; as introduced, it 

did not contain what ultimately became 5 44-12-205(3), MCA. 

Serious questions were raised by members of the Senate Judiciary 

Committee during the hearing on the bill relating to jointly owned 

property. The Committee was assured that the existing provisions 

of 55 44-12-204 and -205, MCA, protected innocent owners and that 

the district courts would determine who was an innocent owner able 

to retain property under those sections. Minutes Legislative 

Hearing S.B. 241, February 6, 1987, at 2. Notwithstanding those 

assurances, one legislator expressed concern about how innocent 

victims really would be protected; another stated that clearer 

language was needed dealing with innocent parties. a. 

Section 44-12-205(3), MCA, was added to S.B. 241 as a 

committee amendment to address the expressed concerns. The 

committee had before it, but did not adopt, alternative language 

granting the district courts discretion to "take any action . . . 

not inconsistent with the provisions of this chapter." (Emphasis 

added. ) 

Based on this legislative history, it is clear that the 

legislature consciously chose the term llpersons," rather than the 

narrower term in enacting a provision significantly more 
protective than it considered the existing statutes. Furthermore, 

in doing so, it did not support alternative language limiting 

subsection (3)'s application only to situations consistent with 

other provisions of the Act. The legislature specifically having 

rejected the "consistent with" approach as not sufficiently 

protective, the majority now adopts it. 

Legislative concern for the rights of innocent persons 

continued even after enactment of 5 44-12-205(3), MCA. When 

additional amendments to the Act were proposed in 1989, legislators 

received further assurances that the forfeiture statutes would not 

unnecessarily burden innocent persons. "[Tlhis entire procedure is 

subject to the scrutiny and control of the District Courts of the 

State of Montana," which constitute a "significant balancing 

factor." Minutes, Legislative Hearing, S.B. 377, March 9, 1989, at 

2. The majority simply ignores the legislative history and intent 

of 5 44-12-205(3), MCA, dismissing it with a cavalier reference to 

the fact that "the legislature was sensitive to the rights of 

innocent persons. I' 

When the legislature uses a particular term, this Court's duty 

is to construe it "according to the context and the approved usage 

of the language. . . . 'I Mydlarz v. Palmer/Duncan Const. Co. 

(1984), 209 Mont. 325, 336, 682 P.2d 695, 701. Therefore, I would 

read "innocent personsN as a general term which includes, but is 

not limited to, tlowners," and find that, according to the language 

of § 44-12-205(3), MCA, a person is "innocent" when so determined 

by the district court on the particular facts before it. 
In my opinion, this close review of the legislative history 

mandates a conclusion that, in enacting 5 44-12-205(3), MCA, the 

legislature intended the broadest conceivable grant of discretion 

to the courts in protecting the rights of innocent persons with 

regard to property otherwise subject to forfeiture. I further 

conclude that the "under this chaptern language in that statute is 

sufficiently broad, and intended, to override the other detailed 

forfeiture statutes when necessary, in the court's discretion, to 

protect innocent persons and prevent unjust results. To conclude 

otherwise ignores the legislature's clear intent. Finally, absent 

any indication in the statute or the legislative history to the 

contrary, I conclude that the only reasonable interpretation of the 

legislature's failure to include any burden of proof requirement 

for an innocent person, as it clearly included for lienholders 

filing a verified answer, is that no such specific burden was 

intended. The majority's imposition of the requirements of other 

statutory provisions into 9 44-12-205(3), MCA, totally negates and 

eviscerates the broad discretion granted to the district court by 

that section. 

It remains only to apply the conclusions set forth above 

regarding § 44-12-205(3), MCA, to the facts and judgment in the 

instant case. Here, Peter Soule was served with the petition for 

forfeiture and summons, as an owner or claimant of the van, under 

9 44-12-201, MCA. A verified answer was filed by the registered 

owner of the van, Brian Soule, as required by 5 44-12-202, MCA, but 

no answer was filed individually by Peter Soule. At the outset of 
the forfeiture hearing and upon a motion by the State, the District 

Court entered a default against Peter Soule due to his failure to 

file an answer as required by 5 44-12-202, MCA. The entry of the 

default was neither based on, nor related to, the question of 

whether Peter Soule was an innocent person under g 44-12-205(3), 

MCA. No default judgment was entered. 

A "default entry is simply an interlocutory order that in 

itself determines no rights or remedies. . . ." Cribb v. Matlock 

Communications, Inc. (1989), 236 Mont. 27, 30, 768 P.2d 337, 339. 

Thus, the District Court's entry of Peter Soule's default did not 

finally determine his rights or status in the proceeding. Nor did 

the entry of the default, in and of itself, foreclose the District 

Court's ability to Wake any action to protect the rights of 

innocent persons" under 5 44-12-205(3), MCA. 

The real question in this case is whether, subsequent to the 

entry of the default, Peter Soulets status in relation to the van 

was before the District Court, thus enabling the court to act under 

g 44-12-205, MCA. Under the particular facts of this case, it was. 

While the record is clear that Peter Soule did not appear at 

the forfeiture proceeding, his status and interest were before the 

court via Brian Soule's verified answer. Furthermore, the State 

itself established Peter Soule's status and interest in the van 

through the testimony of Lieutenant Christie. That testimony also 

established that, while Peter Soule knew of Brian's drug problems, 

he had paid to enroll Brian and Elizabeth in a treatment program 

for those problems and then, on their release from that program, 
sent them to Brian's grandmother in Montana where they would be 

away from drugs. The court concluded that the record did not 

support any inference of knowledge or involvement by Peter Soule in 

the drug possession by Brian from which the forfeiture proceeding 

arose. On the basis of the State's evidence, the court concluded 

that Peter Soule was an "innocent person" under 5 44-12-205(3), 

MCA, and entered judgment accordingly, releasing the van to Peter 

Soule. The ~istrict Court concluded that to do otherwise would be 

grossly unfair and inequitable under the circumstances of this 

case. 

It is a rule of statutory construction that the legislature 

does not pass meaningless legislation. The majority's 

interpretation, or lack thereof, of 5 44-12-205(3), MCA, produces 

precisely that result. It renders meaningless an act of the 

legislature, namely, the insertion into the Act patterned on the 

federal model of a subsection peculiar to Montana and clearly 

intended to balance the harshness of the forfeiture laws by 

protecting the rights of innocent persons without regard to other 

statutory provisions regarding such forfeitures. As discussed 

above, the majority's interpretation of 5 44-12-205 (3) , MCA, gives 

it no effect whatsoever. 

Under the particular facts of the instant case, Peter Soule's 

legitimate interest in the van was properly before the court. It 

was established at the hearing by the State's own witness, and was 

not disputed. The record before us reflects a father's repeated 

efforts to help get his son's life in order; it certainly does not 
reflect any acquiescence in, or consent to, his son's drug-related 

criminal offenses. Peter Soulets co-signing of Brian's loan with 

GMAC and paying off that loan of approximately $lO,OOO were further 

efforts by a concerned father who had no connection whatsoever with 

the criminal offense by Brian which formed the foundation for the 

forfeiture proceeding. 

The circumstances of this case, the record before us, and the 

cited legislative history support the ~istrict Court's conclusion 

that Peter Soule was an innocent person and its action in 

protecting the rights of such an innocent person pursuant to its 

broad discretion under 5 44-12-205 (3), MCA. I would hold that the 

District Court did not abuse its discretion and affirm its 

dismissal of the forfeiture petition. 
Justice Terry N. Trieweiler specially concurring. 

I concur with the dissent of Justice Gray, but am unable to 

join in her remarkable restraint. 

The portions of the forfeiture statute relied upon by the 

majority turn traditional notions of fairness, due process, burden 

of proof, and presumption of innocence upside down. The statute 

has only one redeeming provision which is found in 5 44-12-205(3), 

MCA. The majority opinion gives its blessing to those provisions 

of the forfeiture statute which are most offensive to the 

traditions of our justice system, and totally ignores that portion 

of the statute which was intended by the legislature to ameliorate 

the statute's harshness. 

Under our former system of justice, innocent people did not 

have the burden of proving innocence. The State had the burden of 

proving their guilt before punishing them or seizing their 

property. Regardless of that fact, in this case Peter Soule did 

not need to appear to prove his innocence because his innocence was 

undisputed. 

While the majority opinion does substantial harm to the 

property rights of innocent citizens, it does nothing to further 

I concur in the foregoing concurrence of Justice Trieweiler. 
December 30, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Mike Salvagni, Gallatin County Attorney 

Marty Lambert, Deputy 

615 So. 16th Ave., Rm. 100 

Bozeman, MT 59715 

Hon. Marc Racicot, Attorney General 

Pad D. Johnson, Asst. Atty. General 

Justice Bldg. 

Helena, MT 59620 

Helene Orenstein 

Attorney at Law 

125 W. Mendenhall 

Bozeman. MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy