Spero News

Montana high court offers victory to property owners
Thursday, November 03, 2016
by Martin Barillas
Property owners were handed a victory by the Montana Supreme Court when it ruled that citizens are entitled to a jury trial in civil forfeiture proceedings. In an 18-page opinion, the high court of Montana provided a history of the convoluted case that began in 2011 when state law enforcement officials search the property of Mike Chlinski when seeking evidence in an investigation into illegal dog-breeding. Chilinski was convicted on more than 90 counts of animal cruelty for his illegal Malamute breeding and sentenced to 30 years in prison. Twenty-five of those years were suspended, however. 
When the lawmen discovered the illegal puppy farm, they also uncovered evidence of illegal marijuana growing. That led to further investigation by the state, which in turn handed off the case to the federal government. While the state dropped its criminal investigation into the drug charges, it did not stop from pursuing civil forfeiture in the case. 
Even while Montana changed its laws regarding civil forfeiture in 2015, that was not so in June 2013 when it pursued civil forfeiture against Chilinski. At the time, the relevant statute only required a judge to hear the case. The Montana legislature passed, and the governor signed, a reform so that juries may now hear this cases.
Plaintiff Chilinski argued that the civil forfeiture was a violation of his right to a jury as called for by the constitutions of Montana and the United States. A district court in Jefferson County rejected the argument and said that the case was merely to determine title to Chilinski's property, which was an equitable claim that was exempt from the right to a jury trial. The district court ruled to forfeit his property to the state after finding that he had used his property to make drugs.
The Montana Supreme Court released its opinion on November 2. "[T]he right to a jury trial on legal issues remains inviolate and may not be compromised because it is combined with equitable issues in one action," Justice Laurie McKinnon wrote. "After consideration of both American and English common law, federal jurisprudence, and decisions from our sister states that have considered the issue in cases involving similar statutes, we join the majority of states and federal courts and conclude that there is a right to trial by jury guaranteed by . . . Montana's Constitution in an in rem forfeiture proceeding." The court ruled that the right to a jury in the Montana Constitution is grounded in common law, but does not extend to cases grounded purely in equity.
Forfeiture is punitive, said Chilinski, who found that the state of Montana used it as a penalty against Chilinski. It is therefore, the court reasoned, that the case was not grounded purely in equity. "[W]e note that forfeiture statutes operate to transfer property rights to the state, as a penalty against the owners for misuse of the property. The District Court here placed too narrow an interpretation on the issue by characterizing the proceeding as only one of determining title," wrote McKinnon.
The ruling essentially found that the barring of a jury trial in Montana’s civil forfeiture law is unconstitutional. Even though the state legislature struck it in 2015, the rest of the statute is in effect.  "Our determination that Section 26 of the Montana Constitution guarantees a right to jury trial for civil in rem forfeiture proceedings does not require that the forfeiture proceeding against Chilinski be dismissed," McKinnon wrote.
The unanimous decision by the seven-member Montana Supreme Court puts the state on the same level as most other states that offer jury trials in civil forfeiture proceedings. 
The American Civil Liberties Union, among other advocacy groups, contend that civil forfeiture laws allow police to profit from others’ crimes. Police are enabled under civil forfeiture laws to seize land, houses, jewelry, money, vehicles, and other assets if they can show probable cause that the property was used for illegal activity.
Montana’s HB 463, which was signed into law by Gov. Stephen Bullock in 2015, eliminate controversial aspects of civil asset forfeiture. It requires police to convict a property owner of a crime before going through permanent forfeiture proceedings. In the event of a conviction, the law also raised the legal bar for forfeiture and requires police to present “clear and convincing evidence” that the seized property is connected to criminal activity. Other protections, such as a pretrial process that allow owners of seized property to defend themselves against civil forfeiture, were also introduced by the new law.
Montana’s civil forfeiture laws had gotten a failing grade from the libertarian Institute for Justice. Lee McGrath of the Institute for Justice told the Huffington Post last year that the reform is “an important step forward toward better protecting Montanans’ due process and property rights from the inherent and structural flaws in civil forfeiture.”
“Thanks to Governor Bullock’s signing of HB 463, the due process protections that our founders envisioned when authoring the 5th Amendment are now much stronger,” McGrath said in a statement. “Innocent Montanans do not have to fear losing their assets to the state when they’ve not committed a crime and those facing forfeiture are now assured fair treatment in Montana court rooms.”
But McGrath and McCarthy also noted that even the new law does nothing to address a federal loophole that allows local law enforcement agencies to circumvent the state’s improved protections.
Under the Justice Department’s Equitable Sharing Program, police working with federal agencies can submit seized property for forfeiture through a federal process that is more lenient than most of those at the state level. Up to 80 percent of the resulting profits are then given back to the local department involved with the seizure.
“There is more work to do,” McGrath said of Montana’s effort. “Reform supporters across the political spectrum will ask for additional reforms when the legislature next meets in two years if law enforcement attempts to circumvent state law by collaborating with the [Drug Enforcement Administration] and other federal agencies. Local police, sheriffs and prosecutors are on notice that they cannot export criminal prosecution and forfeiture litigation to the federal government in order to keep forfeiture proceeds going to supplement their own budgets.”
Civil forfeitures have been used to prevent criminals from profiting from crime. Property seized by the government can then be sold, while law enforcement agencies can keep as much as 100% of the proceeds. "Civil forfeiture enables the government to recover property when criminal prosecution of the possessor of the property may not be appropriate or feasible,” the Justice Department argued to congress in a written testimony in 2015, according to the Washington Post. In some cases, citizens’ assets have been seized on the basis of suspicion alone. Before 2015, Montana was among the states that require citizens to prove their property was not involved in criminality following a government seizure.

Spero News writer Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

Copyright © 2019 Spero