Opinion
No. 5-979 / 04-1178
Filed February 15, 2006
Appeal from the Iowa District Court for Dickinson County, Patrick M. Carr, Judge.
Respondents appeal a district court ordering requiring the forfeiture of certain property. REVERSED AND REMANDED.
Edward J. Bjornstad of Bjornstad Law Office, Spirit Lake, for appellants.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Rosalise Olson, County Attorney, and Lonnie Saunders, Assistant County Attorney for appellee State.
Considered by Vaitheswaran, P.J., Eisenhauer, J., and Beeghly, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Wayne Plemel owned Okoboji Casino Supplies, a company that sold gambling devices. We will refer to Plemel and Okoboji Casino Supplies together as "Plemel." In Iowa, possession or control of a gambling device is a serious misdemeanor, unless the devices are held "solely for sale out of the state in another jurisdiction where possession of the device is legal. . . ." Iowa Code § 725.9(4), (5). Based on an undercover investigation, State officials believed Plemel intended to violate Iowa law by selling some of the gambling devices in Iowa. A search warrant was executed, and on November 22, 2002, fifty-eight gambling devices, cash, and a computer were seized.
Plemel filed a claim for property seized for forfeiture, which stated that a prosecutor had authorized notice of a pending forfeiture. No notice of forfeiture or notice of a pending forfeiture appears in the record.
At the forfeiture hearing, during a discussion of exhibits, the assistant county attorney, Lonnie Saunders, stated, "I think Mr. Bjornstad and I have agreed that we would waive any procedural defects in the documentation that got, that we want to try this thing on merits." The attorney for Plemel, Edward Bjornstad, did not make any statements on the matter. The district court found "In record proceedings, counsel stipulated to the waiver of all formalities regarding notice, pleadings and timeliness, and agreed to submit the matter on the merits." The court concluded the gambling devices should be forfeited to the State because Plemel did not possess the machines with the intent to solely sell them out of state. Plemel appeals.
II. Standard of Review
Our review of forfeiture proceedings is for correction of errors at law. In re Prop. Seized from DeCamp, 511 N.W.2d 616, 619 (Iowa 1994). On the other hand, constitutional issues are reviewed de novo. In re Prop. Seized from Terrell, 639 N.W.2d 18, 21 (Iowa 200).
III. Motion to Dismiss
On appeal, Plemel claims the district court did not have jurisdiction to proceed with the case because the State failed to file any notice of forfeiture. The State filed a motion to dismiss, arguing that Plemel failed to preserve error on this issue, because it was not raised before the district court. Subject matter jurisdiction may be raised at any time. State v. Lasley, 705 N.W.2d 481, 485 (Iowa 2005). We determine our consideration of this issue is not barred by our rules on error preservation.
In the alternative, the State argues that Plemel waived any procedural defects in this case. Waiver is the intentional relinquishment of a known right. In re Prop. Seized from Sykes, 497 N.W.2d 829, 832 (Iowa 1993). At the hearing, Saunders spoke about the parties' stipulation to the admission of certain exhibits, stating:
There's also a number of other items that were seized along with it, mostly related to invoices, paper to trace the sale of these machines, and these are all listed on the Evidence and Exhibit List that the Court has in the file. And I looked at the court file, noticed that it was on a legible [sic] document, so I've got a typed copy of that for the Court as well. We will be putting into evidence at this point in time, Your Honor, I think Mr. Bjornstad and I have agreed that we would waive any procedural defects in the documentation that got, that we want to try this thing on merits. We also stipulated to the introduction of a transcript of a taped proceeding. We also have the tape here, if anybody wants to listen to it.
(Emphasis added.)
Looking at Saunders's statements as a whole, it is clear he was discussing a waiver of procedural defects for the introduction of a typed copy of an exhibit, as opposed to the original of that exhibit. He was not making a statement that the parties had agreed to waive all procedural defects in the case. Furthermore, there was no statement by Bjornstad that Plemel was waiving all procedural defects, such as notice, in this case. Mere passivity will not support a waiver. Id. at 833. We conclude the district court's finding that the parties "stipulated to the waiver of all formalities regarding notice, pleadings and timeliness, and agreed to submit the matter on the merits," is not supported by substantial evidence. We deny the State's motion to dismiss.
IV. Subject Matter Jurisdiction
We will proceed to consider the issue of whether the district court had jurisdiction to address the forfeiture issues in the absence of any formal notice of forfeiture. Iowa Code section 809A.8(1) (2003) sets forth the procedures for the commencement of forfeiture proceedings:
1. Forfeiture proceedings shall be commenced as follows:
a. Property seized for forfeiture shall be released on the request of an owner or interest holder to the owner's or interest holder's custody, as custodian for the court, pending further proceedings pursuant to this chapter if the prosecuting attorney fails to do either of the following:
(1) File a notice of pending forfeiture against the property within ninety days after seizure.
(2) File a judicial forfeiture proceeding within ninety days after notice of pending forfeiture of property upon which a proper claim has been timely filed pursuant to section 809A.11.
Forfeiture proceedings are initiated by the county attorney or attorney general filing a notice of forfeiture with the district court. In re Prop. Seized from Aronson, 440 N.W.2d 394, 396-97 (Iowa 1989). Because forfeitures are not favored under the law, the statutory procedures for forfeitures are strictly construed. In re Prop. Seized from Williams, 676 N.W.2d 607, 612 (Iowa 2004).
The notice provisions for forfeiture proceedings are mandatory and jurisdictional. State v. Kaufman, 201 N.W.2d 722, 724 (Iowa 1972) (discussing an earlier version of the forfeiture statute). "Failure to comply with the notice provisions deprives the court of the power to forfeit property seized." Williams, 676 N.W.2d at 612; see also In re Prop. Seized from Wagner, 482 N.W.2d 160, 163 (Iowa 1992) ("A failure to give timely notice of forfeiture terminates the State's right of forfeiture."); State v. Ludtke, 446 N.W.2d 797, 800 (Iowa 1989) ("The State's failure to file a timely claim for forfeiture terminates the State's right to claim a forfeiture of the forfeitable property.").
We conclude the district court lacked jurisdiction over the forfeiture proceeding. The State's failure to give any notice of forfeiture terminated its right to forfeit the property in question. We remand for an order directing the return of the property to Plemel, in accordance with section 809A.8(1)(a). See Williams, 676 N.W.2d at 614.