Click for Opinion of Commonwealth Court 1990CD12_12-17-14
Report from Legal Intelligencer
The Commonwealth Court has made more stringent the prerequisites for civil forfeiture in a ruling to remand the forfeiture case of a Philadelphia woman’s home and vehicle.
With a 5-2 decision, the majority of a seven-judge panel in Commonwealth v. 1997 Chevrolet reversed and remanded the forfeiture against Elizabeth Young, whose son, Donald Graham, was arrested after participating in three controlled marijuana transactions set up by the police.
In so doing, the court rearticulated the Eighth Amendment requirements for civil forfeiture and effectively abandoned the 2010 Commonwealth Court opinion in Commonwealth v. 542 Ontario Street, which affirmed an excessive fines analysis that considered conduct of the landowner in a forfeiture case, even when the landowner was acquitted.
“This is not an analysis that can be reduced to a formula ‘with surgical precision,'” Judge Mary Hannah Leavitt wrote for the majority in a 59-page opinion filed Dec. 17. “Rather, the serious matter of confiscating a citizen’s property without compensation requires an intensive factual inquiry and a meticulous application of the legal instructions laid down by the U.S. Supreme Court … and by the Pennsylvania Supreme Court.”
Judge Robert “Robin” Simpson wrote a dissenting opinion, joined by Judge Bonnie Brigance Leadbetter, listing a number of differences between his own stance and that of the majority.
“In reality, the majority’s real agenda is to imperil civil forfeitures in the absence of a criminal conviction, contrary to settled law,” Simpson said.
The court did not take on the burden of proof issue in its opinion because the issue was not squarely raised in the appeal.
President Judge Dan Pellegrini filed a concurring opinion, arguing that the court should favor the “clear and convincing” standard. The purpose behind forfeitures should be deterring illegal activity, the same as the purpose behind the prosecution of crimes, he said, but no one has suggested lowering the standards for criminal prosecution to the preponderance of evidence.
Pellegrini was joined by Judge Patricia A. McCullough.
“Simply, the overriding governmental interest is to instill confidence in the criminal justice system,” Pellegrini said. “The present forfeiture regime severely undermines that confidence because of the inherent conflict of interest that a district attorney has in seeking forfeiture to fund his or her expenditures that the commissioners or council have chosen not to fund.”
Graham lived with his mother, Young, when the police set up three controlled buys through a confidential informant, Leavitt said. Two of the times he met with the informant by walking to the designated location, and once by driving his mother’s 1997 Chevrolet minivan, the opinion said.
Young told the court that she was aware her son had a drug problem in the past, Leavitt said, and that during that time she did not speak with her son or allow him to be in her life. Young allowed Graham to move in with her in 2009 because she believed he had stopped using drugs, was providing for his children and attending church, Leavitt said.
After Graham’s arrest, the state filed a forfeiture action against Young. She argued that she did not know Graham was selling drugs, even after police searched her home, because she was never given proof of any such behavior, the Commonwealth Court opinion said.
The trial court held that the forfeited property facilitated the illegal sale of marijuana, and rejected Young’s defense that she did not know of or consent to her son’s activities, Leavitt said. The trial court also rejected Young’s claim that the forfeiture of her home was an excessive fine for an offense consisting of the sale of about $90 worth of marijuana, in which she had no involvement, Leavitt said.
Young appealed to the Commonwealth Court, which issued an order in February listing Young’s appeal for en banc argument.
It said the parties should be prepared to address whether the court should decline to apply the then current test of the “excessive fine” analysis in cases where the property owner is not charged with a crime supporting forfeiture. It also asked whether the court should revisit its holding in 542 Ontario, and whether the court should adopt the “clear and convincing” burden of evidence for civil forfeiture cases.
Leavitt said the trial court’s ruling should be reversed because it did not correctly analyze the gravity of the offense, it did not consider whether Young’s house and vehicle were an instrument of the offense and it did not consider Young’s culpability for her son’s violation of the Drug Act.
“The opinion really clarifies what the Eighth Amendment analysis requires,” said Jessica M. Anthony of Ballard Spahr, who represented Young with Jason A. Leckerman and Lisa B. Swaminathan of the same firm.
The Office of the Attorney General filed an amicus curiae brief in support of the state, arguing that the court should not adopt a new test approach for excessive fines, and that the court has no authority to alter the burden of proof in forfeiture proceedings.
“We follow the law as it is currently written and believe the existing burden of proof should continue to be applied in civil forfeiture cases,” Carolyn Myers, spokeswoman for the Office of the Attorney General, said in an emailed statement.
The Philadelphia District Attorney’s Office did not respond to a request for comment.
(Copies of the 104-page opinion in Commonwealth v. 1997 Chevrolet, PICS No. 14-2066, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •