No. 94-225

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MATTER OF DANIEL L. MAGONE,

SHERIFF, MISSOULA COUNTY, STATE OF MONTANA,

Petitioner and Respondent,

-VSDANIEL RICHARD FROEHLICH,

Respondent,

LaDONNA FROEHLICH,

Respondent

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Anne Hamilton, ASUM Legal Services, Missoula,

Montana

Margaret Borg, Public Defender's Office,

Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Elizabeth L. Griffing, Ass't Attorney General

Helena, Montana

Robert L. Deschamps, III, Missoula County Attorney,

Karen S. Townsend, Deputy County Attorney,

Missoula, Montana

Filed:

Submitted on Briefs: January 12, 1995

Decided: March 30, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

LaDonna Froehlich (LaDonna) appeals from the findings of fact,

conclusions of law and order of the Fourth Judicial District Court,

Missoula County, denying her motion to vacate an order forfeiting

three rifles and one shotgun. We reverse, concluding that LaDonna

did not receive the service of summons and petition for forfeiture

to which she was entitled under § 44-12-201(l), MCA, and that

neither actual notice of the forfeiture hearing nor subsequent

intervention cured the lack of required service.

We restate the issues on appeal as follows:

1. Was LaDonna entitled to service of summons and

petition for forfeiture as provided in § 44-12-201, MCA,

as a known owner or claimant of the property for which

forfeiture was sought?

2. Did any actual notice by LaDonna of the September 10,

1993, forfeiture hearing relieve the necessity of

compliance with § 44-12-201(l), MCA?

3. Was the State's failure to provide the statutorily

required notice remediable by the District Court allowing

LaDonna to intervene after the original order of

forfeiture was entered?

The underpinnings of this appeal began with a 1990 law

enforcement investigation of Daniel Froehlich (Daniel), LaDonna's

estranged husband. The investigation culminated in December 1990,

with an undercover purchase of LSD in Daniel's home. After

arresting Daniel, the Missoula City Police, Missoula County Sheriff

and Montana Criminal Investigation Bureau searched his residence

and seized property. LaDonna claims to have been present at the

time of the search and seizure. The four guns at issue in this

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case were among the property seized.

The Missoula County Sheriff, represented by Deputy County

Attorney Karen Townsend (Townsend), filed a petition seeking

forfeiture of the guns and other seized property on December 31,

1990. Daniel was served with summons and a copy of the petition as

required by § 44-12-201, MCA. In his answer, Daniel claimed that

he and LaDonna had purchased the guns for hunting and paid for them

with his employment wages. The forfeiture hearing regarding the

guns ultimately was scheduled for September 10, 1993.

Prior to the September 10, 1993 hearing, Daniel telephoned

LaDonna and told her that he was being transferred to the Missoula

County Courthouse for a hearing he believed was related to

forfeiture of the guns. LaDonna then left a handwritten note with

Townsend--who had represented the State of Montana (State) in other

proceedings against Daniel--at the County Attorney's office. In

LaDonna's note, she asserted ownership of the guns and expressed

interest in the forfeiture proceeding she thought might be

occurring that day. She also included information about where she

could be reached throughout the day.

Townsend represented the State at the September 10, 1993,

forfeiture hearing regarding the guns. She had read LaDonna's note

and showed it to Daniel's counsel before the hearing began; neither

counsel notified the court of the note or its contents. Three law

enforcement officers testified in support of the petition's claim

that the guns were used to protect or facilitate Daniel's drug

distribution operation. Daniel testified that he and LaDonna had
purchased the guns "for our children . . to hunt and shoot them

[sic] . . .I' Following the hearing, the District Court ordered

the guns forfeited.

LaDonna obtained counsel after learning that the guns had been

ordered forfeited. She moved to intervene in the forfeiture

proceedings, for a temporary restraining order to prevent final

disposition of the property and to have the forfeiture order

vacated. Among other things, LaDonna asserted that:

All owners or claimants of seized property are to be

notified of any forfeiture hearings. Montana Code

Annotated 5 44-12-201. Missoula County had notice that

LaDonna Froehlich claimed an interest in said property.

LaDonna Froehlich received no notice regarding the

hearing of forfeiture.

On December 1, 1993, the District Court held a hearing on

LaDonna's motions. The court took the motion to intervene under

advisement and received testimony from LaDonna. LaDonna stated

that she first informed law enforcement authorities that she owned

the guns during their search of Daniel's home in December 1990.

She stated that the authorities again became aware of her claimed

ownership interest in the guns through various other events,

culminating in her September 10, 1993, note to Townsend. No

testimony or evidence was offered in response. Townsend and

Daniel's public defender verified that they had read, but failed to

advise the court of, LaDonna's note prior to the September 10,

1993, forfeiture hearing.

Following the hearing on LaDonna's motions, the District Court

entered its findings of fact, conclusions of law and order granting

LaDonna's motion to intervene and denying her motion to vacate.

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The court again ordered the guns forfeited. LaDonna appeals.

1 . Was LaDonna entitled to service of summons and

petition for forfeiture as provided in § 44-12-201(l),

MCA, as a known owner or claimant of the property for

which forfeiture was sought?

The District Court concluded that LaDonna did not present a

claim to the guns as required by statute until after completion of

the forfeiture proceeding. In Montana, the forfeiture of property

related to drug offenses is authorized and governed by Title 44,

Chapter 12, MCA. Within 45 days following the seizure of such

property, a petition to institute forfeiture proceedings must be

filed; summons and a copy of the petition must be served on all

owners or claimants of the property. Section 44-12-201, MCA.

Personal service is required when the name and address of the owner

or claimant is known. Section 44-12-201(l), MCA.

At the outset, we observe that the District Court's conclusion

that LaDonna did not present a claim to the guns as required by

statute is susceptible of two interpretations. The conclusion

could be read as a determination that the forfeiture statutes

require an owner or claimant to affirmatively present a claimed

interest in the property via bills of sale or title documents prior

to the point at which obligations regarding service of summons are

imposed on the State. Alternatively, the conclusion could be

interpreted as a determination that LaDonna was not a known owner

or claimant at any time prior to the forfeiture hearing.

Because nothing in the forfeiture statutes corresponds to the

first interpretation, that an owner or claimant has an affirmative

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duty to "present a claim," we read the District Court's conclusion

as determining that LaDonna was not a known owner or claimant at

any time prior to the September forfeiture hearing and, therefore,

that she was not entitled to service as required by § 44-12-201,

MCA. We review a district court's conclusions of law regarding the

application of a statute to determine whether the court's

interpretation of the law is correct. State v. Henning (1993), 258

Mont. 488, 490-91, 853 P.2d 1223, 1225; citing Steer, Inc. v. Dep't

of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

LaDonna argues that the District Court erred in concluding

that she was not a known claimant. She contends that the State

knew, or should have known, of her claimed interest in the guns as

early as the search of Daniel's property in December of 1990 and at

various times thereafter, including the day of the forfeiture

hearing when she left her note for Townsend. On that basis,

LaDonna contends she was entitled to service of summons and the

petition pursuant to § 40-12-201, MCA.

The State acknowledges that we have mandated strict compliance

with the procedural requirements of Montana's forfeiture statutes.

See State v. 1978 LTD II (1983), 216 Mont. 401, 404-05, 701 P.2d

1367-68. Rigid adherence to the statutory safeguards is necessary

because of the extraordinary nature of the forfeiture statutes in

permitting seizure of private property prior to a factfinding

hearing. LTD II, 701 P.2d at 1367. It is the summons which

informs an owner or claimant of the necessity of answering the

petition within 20 days as required by § 44-12-202, MCA; an owner's

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or claimant's failure to answer timely ordinarily bars him or her

from presenting evidence at the forfeiture hearing. See § 44-12-

202, MCA.

The State also admits that it did not serve LaDonna with

notice of the forfeiture proceedings pursuant to § 40-12-201, MCA.

The State argues, however, that neither the statutory service

requirements nor LTD II is applicable here because, as the District

Court determined, LaDonna was not a known claimant prior to the

September 10, 1993, forfeiture hearing.

LaDonna claims to have notified the State of her ownership

interest in the guns when they were seized during the search of

Daniel's home in December, 1990. She also claims the State was

made aware of her interest through Daniel's answer to the

forfeiture petition, through testimony at a 1991 forfeiture hearing

regarding other seized property and as a result of the note she

left for Townsend on September 10, 1993. The State vigorously

disputes having any knowledge of LaDonna's claimed interest in the

guns prior to her September note to Townsend.

The term "known owner or claimant" is not defined in § 44-12-

201, MCA. In construing the meaning of a statute, we presume the

terms and words used were intended to be understood in their

ordinary sense. Gaustad v. City of Columbus (1994), 265 Mont. 379,

381, 877 P.Zd 470, 471 (citation omitted). A common definition for

the term "owner" is "one who has dominion over a thing, real or

personal. . , which he has a right to enjoy and do with as he

pleases." Black's Law Dictionary, page 1105, (6th Ed. 1990). A

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"claimant" is one who asserts a right, demand or claim. Black's

Law Dictionary, page 247, (6th Ed. 1990).

Adding these everyday meanings to the statutory service

requirements, we conclude that the District court erred in

determining that LaDonna was not a known claimant at any time prior

to the forfeiture hearing on September 10, 1993. In so concluding,

we need not address each point in time at which LaDonna contends

her claim was known to the State; nor is it necessary to ascertain

a precise point in time during the early stages of this forfeiture

proceeding at which the State had the requisite knowledge of

LaDonna's claim regarding the guns. Our discussion is limited to

the events of December 18, 1990, and September 10, 1993.

LaDonna testified that the State was first aware of her claim

to the guns via a conversation between herself and Detective

Harbison during the search of Daniel's residence and seizure of the

guns and other property on December 18, 1990. According to

LaDonna, she told Detective Harbison at that time that she had

purchased the guns, that they were legally hers, and that she had

bills of sale for them.

No testimony or other evidence was presented to controvert

LaDonna's statements. The State contends that the District Court,

having found other portions of LaDonna's testimony incredible, also

was free to reject this testimony that the conversation occurred.

Indeed, it appears that the District Court necessarily,

although impliedly, rejected LaDonna's testimony in this regard;

only by doing so could the court have concluded that she was not a

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known claimant. The court certainly is free to weigh credibility

and evidence and we will not substitute our judgment for that of

the trial court. Hagen v. Dow Chemical Co. (1993), 261 Mont. 487,

494, 863 P.2d 413, 418. For that reason, we do not conclude that

LaDonna was a known claimant by virtue of the alleged December 18,

1990, conversation.

The State's other contention regarding LaDonna's testimony in

this regard is, however, troubling. The State argues that, even if

the conversation took place, it does not support LaDonna's position

that she was entitled to notice of the forfeiture proceedings.

This is so, argues the State, because the conversation "was clearly

held in passing" and related more to the question of whether the

guns were stolen than to the identity of the actual owner. We

cannot approve of the State's cavalier attitude about what

constitutes notice of a claimed interest in property for which

forfeiture is sought. If the conversation occurred, it would

constitute a claim of interest in the guns by LaDonna because

LaDonna asserted a right to the guns. Accepting the State's

position that it was merely a conversation "in passing" which would

not support a claimed interest would impermissibly shift the

initial burden under the forfeiture statutes to those claiming

interest, rather than strictly requiring the State to serve known

claimants. We will not countenance such a result where ex parte

seizures of private property are at issue. See LTD II, 701 P.2d at

1367-68.

Unlike the events of December 18, 1990, the events of

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September 10, 1993, regarding LaDonna's note to Townsend are not

vigorously disputed. Townsend represented to the court that

LaDonna left the following note for her before the forfeiture

hearing on the guns:

LaDonna Froehlich

1302 Phillips

Y/10/93

Karen Townsend,

This note is in reference to Daniel R. Froehlich.

He was transported from MSP for a hearing today. I do

not know what its [sic] about. I would like you to have

this information in case the hearing was for a forfeiture

of firearms seized Dec. 18, 1990 at Daniel's home.

At the time Daniel was in possession of the firearms

to hunt with. The guns are in reality of my ownership

[sic]. I have receipts for the guns and I also know that

these guns were not illegal, as in stolen.

The guns were purchased originally for my children,

when they were old enough to go hunting. I only allowed

Daniel to use them as he did not own any guns.

I don't want to talk to Dan or see him as I'm trying

to get a divorce from him. If you have any questions of

me 1'11 be at school, U of M, until 5pm [sic] and then

I'll be at Tower Pizza, 543-6112, where I'll be working.

If the case today was not in reference to this, then

1'11 need no information.

Thanks for your time,

LaDonna Froehlich

The State concedes that Townsend received and read the note prior

to the September 10 forfeiture hearing. In addition, LaDonna's

testimony that she turned the bills of sale over to someone at the

County Attorney's office who returned them to her was undisputed.

Considered in relation to the common definition of "owner" and

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"claimant," the words "the guns are in reality of my ownership"

clearly convey a claim to the guns. The State's only argument

relating to the note is that, taking the note and LaDonna's later

testimony about the note together, LaDonna's story is

"contradictory, confusing and incredible." The flaw in the

argument, however, is that it is the note itself that gave the

State notice that LaDonna was a known claimant; nothing in the note

is contradictory, confusing or incredible. The State may not

"undo" clear notice provided at a specific point in time by relying

on testimony given three months later. We conclude that at least

as of the day of the forfeiture hearing, but before the hearing

began, LaDonna was a known owner or claimant of the property.

Having concluded that LaDonna was a known claimant, we come

full circle to our LTD II holding mandating strict compliance with

the procedural requirements of the forfeiture statutes. Section

44-12-201, MCA, required the State to serve LaDonna with summons

and a copy of the petition before proceeding with the forfeiture of

the guns. If the owner or claimant's name and address are known,

personal service is required. Section 44-12-201(l), MCA.

LaDonna's note articulated her full name, address, work location

and telephone number; thus, her name and address were known. We

conclude, therefore, that 5 44-12-201(l), MCA, required the State

to serve LaDonna personally prior to the forfeiture hearing.

2. Did any actual notice by LaDonna of the September 10,

1993, forfeiture hearing relieve the necessity of

compliance with § 44-12-201(l), MCA?

1 1
The District Court found that, while LaDonna was not served or

given formal notice of the forfeiture proceeding, she had actual

knowledge of the September 10, 1993 forfeiture hearing. LaDonna

argues that this finding is erroneous both factually and legally.

For purposes of analysis, we accept the court's finding that

LaDonna had actual notice of the hearing and address the legal

question of whether actual notice cured the failure to serve her

personally as required by 5 44-12-201(l), MCA.

As discussed above, the legislature has expressly provided for

notice via personal service of process on known claimants to

property for which forfeiture is sought. Section 44-12-201(l),

MCA. The language of the statute--that owners and claimants of the

property"'shal1 'I be served--is mandatory. See Gaustad, 877 P.2d at

471; LTD II, 701 P.2d at 1367. Nothing in the forfeiture statutes

provides for alternative or substitute notice. We may not insert

into statutory enactments provisions omitted therefrom. Section l2-101, MCA.

Moreover, our LTD II mandate of strict compliance and rigid

adherence to the procedural safeguards contained in forfeiture

statutes is even more compelling in the case presently before us

than it was in LTD II. There, the statutorily required notice was

given, but was defective in that it did not advise the person

served that an answer was required within 20 days. We refused to

allow the State to cure the defect by amending the notice of

intention to institute forfeiture and, in effect, recommencing the

forfeiture proceeding. LTD II, 701 P.2d at 1368.

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Here, LaDonna received no notice at all pursuant to § 44-12-

201, MCA. As a result, she--like the respondent in LTD II--was

never advised of the necessity of filing a timely answer under §

44-12-202, MCA, in order to protect her claimed interest in the

guns. Even with actual notice of the hearing, § 44-12-202, MCA,

likely would have precluded her from presenting evidence or

asserting her interest at the September 10, 1993, forfeiture

hearing because she had not timely filed an answer to the petition

for forfeiture. As we stated in LTD II, "[tlhe interests of the

possibly innocent owner should likewise be protected by strict

compliance with the procedural mandate of the statute." LTD II,

701 P.2d at 1368 (citation omitted).

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

innocent, owners or claimants to have their property forfeited for

failure to serve a summons and copy of the petition as expressly

required by § 44-12-201, MCA. We conclude, therefore, that actual

notice of a forfeiture hearing by a known claimant or owner does

not relieve the necessity of compliance with § 44-12-201, MCA.

3. Was the State's failure to provide the statutorily

required notice remediable by the District Court allowing

LaDonna to intervene after the original order of

forfeiture was entered?

As a final matter, we consider whether the District Court's

granting of LaDonna's motion to intervene remedies the State's

failure to strictly comply with the requirements of § 44-12-201(l),

MCA. LaDonna contends that the State's failure to serve her was a

"fatal flaw" requiring dismissal of the forfeiture proceeding. The

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State argues that the opportunity to testify at the intervention

hearing provided her with an adequate mechanism to challenge the

forfeiture and assert her rights. By way of background, we note

that the guns were seized on December 18, 1990, the forfeiture

hearing was not held until September 10, 1993, and the original

order of forfeiture was entered November 2, 1993. LaDonna's

intervention motion was granted on January 25, 1994. By that time,

the guns had been in the State's possession for more than three

years. The State argues that the intervention provided sufficient

protection of LaDonna's interests. We disagree.

Forfeiture statutes are extraordinary measures. "The very

exercise of the seizure and forfeiture statutes by the State is a

serious infringement on the rights of the party whose property is

seized without a hearing." LTD II, 701 P.2d at 1368. The only

justification for allowing such a procedure at all is because "it

is considered a significant weapon in the battle against drug

trafficking." LTD II, 701 P.2d at 1368.

Where the mere initiation of forfeiture proceedings is a

serious infringement on the property owner's rights, the extent of

the infringement on LaDonna's rights which occurred here simply by

virtue of the length of time the State had control over the seized

property in which she claimed an interest can hardly be quantified.

In LTD II, where the time periods were relatively short, we refused

to allow the State to cure its defective notice; such a cure would

have increased the delay in proceeding against the property at the

price of prejudicing the owner's rights. LTD II, 701 P.2d at 1368.

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Instead, we affirmed the district court's dismissal of the

forfeiture proceeding where a possibly innocent owner's rights were

prejudiced by the State's failure to comply with mandatory

statutory requirements. The same result is even more compelling

here, given the total absence of notice and the inordina.te length

of time during which the State had control of the guns.

In addition, it is clear that the forfeiture procedure imposes

stringent limitations on the party whose property is seized,

including a rebuttable presumption of forfeiture and the limited

proof allowed to rebut the presumption. Sections 44-12-203 and 44-

12-204, MCA. Adopting the State's position would maintain those

stringent limitations on property owners or claimants while, at the

same time, excusing the necessity of its own strict compliance with

the service requirements contained in 5 44-12-201, MCA. We

rejected such a one-sided interpretation of the forfeiture statutes

in LTD II, indicating that the requirements placed on property

owners or claimants "must be enforced so as to avoid, to the

greatest extent possible, prejudicing the rights of the party

against whom they are directed." LTD II, 701 P.2d at 1368.

Enforcing the requirements of the forfeiture statutes when they may

adversely impact owners or claimants while simultaneously not

enforcing those statutes when they may adversely impact the State--

as the State would have us do--would not in any way meet our

obligation to enforce the statutory requirements so as to avoid

prejudicing the rights of property owners or claimants.

Allowing an intervention subsequent to a court-ordered

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forfeiture of property to replace strict compliance by the State

with the requirements of § 44-12-201, MCA, would essentially gut

the 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. The extent of the prejudice would far

exceed the prejudice to the rights of a possibly innocent owner

that we refused to countenance in LTD II. Nor are we persuaded by

the State's arguments that we should depart from the LTD II remedy

here. The State argues that the District Court's approach in

allowing LaDonna to intervene was reasonable and procedurally

sound. We do not disagree that the court did what it could to

protect LaDonna's interests given the position in which it was

placed by the State's failure to properly serve LaDonna as required

by § 44-12-201, MCA. We conclude, however, that the State's

failure to provide the statutorily-mandated notice was not

remediable by the District Court allowing LaDonna to intervene

after it had ordered the forfeiture of the guns.

Reversed and remanded with instructions to vacate the order of

forfeiture and dismiss the forfeiture proceedings involving the

guns.

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