Timing Requirements in Hawaii's Forfeiture Statute Are Not Mere Internal Deadlines
by Robert Thomas, InverseCondemnation, December 21, 2021
In this season of "regifting," this one from the Hawaii Supreme Court about an attempt to "re-seize" property by civil forfeiture.
In Alm v. Eleven (11) Products Direct Sweepstakes Machines, No. SCWC-15-848 (Dec. 20, 2021), the unanimous court held that the notice and related procedures in Hawaii's civil forfeiture statute are mandatory, and that the two-year statute of limitations governing when the government must institute forfeiture proceedings or return the goods is not the sole time constraint the government must adhere to.
It all started back in 2012, when Five-O (not really, it was HPD), pursuant to a search warrant seized 77 devices allegedly used for gambling. The statute of limitations on the government bringing a forfeiture action is the same as the underlying offense (here, two years). Well, nearly two years passed and HPD began the forfeiture process, but at about the same time cancelled its investigation. But it didn't give the devices back to the owner, it rebooted the process and "re-seized" the property. One week later, asked the prosecutor's office to start the forfeiture process by filing an administrative claim.
The prosecutor did so. But when the case later ended up in court, it was dismissed for failure to comply with the two-year statute of limitations. While the admin forfeiture request was timely, the judicial review process was instituted more than two years after the seizure. The court of appeals reversed, concluding that it was enough the government started the admin proceedings on time.
Having determined the case was timely, the court of appeals rejected the argument that the statute's other time deadlines -- which require that the police send the prosecutor a request to institute forfeiture within 30 days (and that the prosecutor file the petition within 45 days) are mandatory. The court concluded these deadlines are mere guidelines because there's nothing in the statute that says what happens if the government doesn't comply.
The Supreme Court disagreed that these are just internal deadlines. Slip op. at 14-15. After reviewing the legislative history of the statute, the court concluded that the legislature did indeed intend a remedy if the police don't send the prosecutor a request to institute forfeiture proceedings with 30 days or if the prosecutor doesn't file a petition with 45 days: return the property to its owner. See slip op. at 16 ("In so doing, the legislature made explicit its intent that the remedy for noncompliance with HRS § 712A-9’s deadlines was the return of the property.").
The Hawaii Supreme Court also rejected the court of appeals' analogy to the statute at issue in the U.S. Supreme Court's decision in United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993):
Finally, the ICA’s reliance by on the United States Supreme Court’s decision in Good to conclude that the deadlines enumerated in HRS § 712A-7 and § 712A-9 are internal deadlines and failure to comply with these deadlines “will not serve as a bar for a petition [for forfeiture]” is misplaced. In Good, because the customs statute at issue did not provide a remedy for failure to comply with the provision, the Court interpreted the statute to be an internal guideline rather than one enforceable by the courts. 510 U.S. at 64-65. The Court explained that, because the statute lacked a consequence for noncompliance, Congress impliedly left enforcement to the administering officials. Here, the legislative history of HRS § 712A-9 explicitly provides that the seizing agency must return the seized property if the State fails to follow HRS § 712A-9.
Slip op. at 17-18.
Now you do have to keep in mind that this is a case of statutory interpretation, and the court merely concluded that the government must adhere to the requirements of the statute (even where those requirements are not spelled out in the statute as plainly as they might have been). But this remains an important case because even though the court did not cite to the rule that statues in derogation of property rights are usually interpreted strictly against the government and in favor of the owner, this case definitely has that vibe.
Before an owner can be deprived of her or his property, the government should be required to, at minimum, comply with all the requirements it imposed on itself (putting aside for the moment the separate question of whether due process would require these deadlines).
Can we count this case as a win for "property rights?" For sure.
PDF: Alm v. Eleven (11) Products Direct Sweepstakes Machines, No. SCWC-15-0000848 (Haw. Dec. 20, 2021)
HNN: Hawaii Supreme Court rules forfeitures of sweepstakes machines improper
HLN: HSC Enforces Deadlines in Forfeiture Proceedings
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