Metropolitan News-Enterprise


Monday, April 25, 2005


Page 1


Court of Appeal Invalidates Stockton Vehicle Seizure Scheme

‘Nuisance’ Ordinance Authorized Forfeiture for Use in Buying Drugs or Soliciting Prostitution


By DAVID WATSON, Staff Writer


An ordinance permitting a city to seize and hold for forfeiture vehicles used in purchasing drugs or soliciting prostitution was overturned Friday by the Third District Court of Appeal.

Justice M. Kathleen Butz said the City of Stockton’s scheme infringed on areas already covered by state law. Because the ordinance provided no means for an owner to challenge the seizure before a forfeiture trial, it also violated state and federal due process guarantees, she added.

Butz conceded that the First District’s Div. Three upheld a similar Oakland ordinance against a preemption challenge in Horton v. City of Oakland (2000) 82 Cal.App.4th 580, but said that case was wrongly decided.

The Stockton ordinance, adopted in 2001, was challenged by taxpayer Kendra O’Connell, who sought a court order barring the city from enforcing it. San Joaquin Superior Court Judge Elizabeth Humphreys sustained the city’s demurrer.

She granted leave to amend, but O’Connell chose instead to appeal.

Proceeds Split

The ordinance declares that any vehicle used to solicit an act of prostitution or to acquire or attempt to acquire a controlled substance “is a nuisance.” It authorizes courts to so find and to order the vehicle sold, with the proceeds divided between law enforcement and prosecutorial agencies.

Peace officers are authorized by the ordinance to seize vehicles whenever there “is probable cause to believe that the property was used in violation of” its provisions.

Butz rejected O’Connell’s contentions that the ordinance impermissibly gave police and prosecutors a financial incentive to seize vehicles and that it violated the Eighth Amendment prohibition on “excessive fines.” Neither of those challenges, Butz said, could be evaluated in the context of a facial challenge to the law, since they would depend on the value of actual vehicles seized.

But she said O’Connell was correct in arguing that the ordinance violated state and federal constitutional guarantees of procedural due process by failing to provide for a “reasonably prompt” hearing on the likely merit of the forfeiture claim.

The justice called the time frames for litigating forfeiture claims under the ordinance “extraordinary,” noting that the law provided only that prosecutors should commence proceedings “as soon as practicable but in any case within one year.”

She commented:

“Claimants may be forced to wait weeks or even months before any hearing is held on the merits of the government’s case, prima facie or otherwise.”

Once a forfeiture claim is filed, she noted, under the terms of the ordinance it cannot be heard for at least 30 days.

“These time frames do not even account for time needed to conduct discovery, requests for postponements, and the predictable congestion of the trial court’s calendar, all of which make substantial additional delay a likely conclusion,” Butz reasoned. That would mean delays of at least six to seven weeks, if not as much as two, three or four months, she suggested.

Balancing Test

Citing the U.S. Supreme Court’s 1976 decision in Mathews v. Eldridge, 424 U.S. 319, Butz said determining the constitutionality of the ordinance required balancing the private and public interests involved as well as considering “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.”

She explained:

“Here, the first of these factors—the importance of the private interest affected—weighs heavily in favor of the party suffering the seizure. Few deprivations of property can create more havoc to the average person’s life than the loss of a motor vehicle....The uninterrupted use of a motor vehicle is especially important in California, where distances between home and work are often great and public transportation is not always easily accessible.”

She noted that the ordinance contains no provision for a vehicle owner to recover the vehicle by posting a bond pending a hearing on the forfeiture claim.

“The vehicle simply sits in storage until judgment,” the justice wrote. “Given the fact that the forfeiture trial will not occur for weeks or even months, this is intolerable. A requirement that the owner post a bond for a temporary restraining order against sale or disposal of the vehicle would serve the government’s interest equally well, without jeopardizing due process through lengthy delay.”

Butz said she was “not persuaded” by the city’s argument that a vehicle owner could recover a seized vehicle by applying to a court for equitable relief.

“[P]lacing the burden on the claimant to pry open the courthouse doors to test the government’s case does not comport with due process,” she commented.

The ordinance, the justice said, also improperly intruded into areas already the subject of state law. The California Uniform Controlled Substances Act contains “stringent substantive and procedural conditions for the civil forfeiture of a vehicle used in the commission of a specified controlled substance offense,” she pointed out.

Only sellers of drugs, not purchasers, are subject to the state law forfeiture provisions, Butz observed.

She declared:

“The Legislature’s express delegation of the power of forfeiture to local agencies, its scrupulous attention to conditions necessary for forfeiture, and its protection of due process rights of those impacted by forfeiture, manifests a clear intent to occupy the area of forfeiture of vehicles when used as instrumentalities of the drug trade. There is no room, under this scheme, for local legislation in the same field which—expands the conditions triggering forfeiture of vehicles used in drug transactions, loosens the requisite standard of proof, omits due process protections for innocent parties, and divides up the net proceeds among local law enforcement agencies.”

The contrary reasoning contained in the opinion authored for the First District’s Div. Three by Justice Carol Corrigan in Horton “cannot be reconciled with the broad scope and detailed parameters set forth in the UCSA regarding forfeiture of vehicles used in the drug trade,” Butz said. “The Legislature has scrupulously set forth the conditions for forfeiture of vehicles used as instrumentalities for controlled substances while omitting others. This occupation of the field preempts local regulation, even on subjects not specifically addressed by the state statutes.”

As for the ordinance’s provisions regarding the use of vehicles in soliciting prostitution, those are preempted by Vehicle Code Sec. 22659.5, which authorizes city or county pilot programs under which such vehicles can be impounded, but only for up to 48 hours, Butz said. Vehicle Code Sec. 21, she noted, bars local legislation on areas covered in that code where it is not expressly authorized.

The First District’s discussion of Sec. 22659.5 in Horton, Butz said, was “premised on the incorrect view that a limited delegation of authority does not conflict with an authority greater than that delegated.”

Justices Coleman A. Blease and Fred K. Morrison concurred. The case is O’Connell v. City of Stockton, C044400.


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