Opinion
2 CA-CV 2023-0264
11-14-2024
Maria B. Platt, in her individual capacity and Maria B. Platt, IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE Estate of William Terrance Platt, Plaintiffs/Appellants, v. Jason Moore, in his official capacity as Deputy Navajo County Attorney, and Brad Carlyon, in his official capacity as Navajo County Attorney, Defendants/Appellees, and The State of Arizona, Intervenor-Defendant/Appellee.
Institute for Justice By Benjamin A. Field, Pro Hac Vice, Arlington, Virginia, and Paul V. Avelar, Phoenix Counsel for Plaintiffs/Appellants Jellison Law Offices PLLC, Scottsdale By James M. Jellison Counsel for Defendants/Appellees Kristin K. Mayes, Arizona Attorney General By Thomas J. Rankin, Tucson, and Nathan T. Arrowsmith and Luci D. Davis, Phoenix Counsel for Intervenor-Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Navajo County No. CV201600389 The Honorable Dale P. Nielson, Judge
Institute for Justice
By Benjamin A. Field, Pro Hac Vice, Arlington, Virginia, and
Paul V. Avelar, Phoenix
Counsel for Plaintiffs/Appellants
Jellison Law Offices PLLC, Scottsdale
By James M. Jellison
Counsel for Defendants/Appellees
Kristin K. Mayes, Arizona Attorney General
By Thomas J. Rankin, Tucson, and
Nathan T. Arrowsmith and Luci D. Davis, Phoenix
Counsel for Intervenor-Defendant/Appellee
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Vice Chief Judge:
¶1 In this civil rights action, Maria Platt ("Ria"), individually and as the representative of the estate of her late husband, William Terrance Platt ("Terry"), appeals from the superior court's entry of summary judgment in favor of Jason Moore and Brad Carlyon, in their official capacities (collectively, "defendants"), and the State of Arizona. Ria primarily asserts the court erred by concluding that she and Terry (collectively, "the Platts") were not deprived of due process when their car was subjected to forfeiture proceedings and that, for various reasons, they were not entitled to nominal damages. Because we agree the Platts' due process rights were not violated, we affirm.
Factual and Procedural Background
¶2 We view the material facts, which are undisputed in this appeal, in the light most favorable to Ria. See Tissicino v. Peterson, 211 Ariz. 416, ¶ 2 (App. 2005) (facts viewed in light most favorable to party against whom summary judgment entered). In May 2016, the Platts' adult son was arrested after troopers found marijuana, drug paraphernalia, and $31,780 in a car the Platts had loaned him for a road trip. A trooper identified the Platts as the car's owners and contacted Moore, the "[a]sset forfeiture attorney" for the Navajo County Attorney's Office (NCAO). Moore directed the trooper to seize the car ("the property") for forfeiture.
¶3 Pursuant to Arizona's former statutory scheme for forfeiture of property, Moore filed a notice of pending forfeiture and made "uncontested forfeiture" available. As explained in detail below, Moore eventually applied to the superior court to forfeit the property. While the forfeiture proceeding was pending, the Platts filed this civil rights action. The Platts alleged that Moore, Carlyon (the Navajo County Attorney), NCAO, and various law enforcement agencies had violated their state and federal due process rights in the forfeiture proceeding, specifically as it related to the uncontested forfeiture procedures. As remedies, the Platts sought, in part, declaratory relief, injunctive relief, and $1 in nominal damages. The Platts did not file a notice of claim.
¶4 Moore subsequently withdrew the application for forfeiture, and the property was made available to the Platts five months after it had been seized. The superior court entered a notice dismissing the forfeiture proceeding, and the property was never ordered forfeited.
¶5 The Platts continued to pursue their civil rights action. The case was removed to the United States District Court for the District of Arizona, and the State of Arizona intervened. See Platt v. Moore, 15 F.4th 895, 900 (9th Cir. 2021). The district court dismissed all of the Platts' state law claims against the defendants here. See id. The Platts appealed the dismissal of their state law nominal damages claims only, which had been dismissed pursuant to Rule 12(b)(6), Fed.R.Civ.P. Id. at 900-01. The United States Court of Appeals for the Ninth Circuit largely reversed the district court, id. at 910, and the remaining state law claims were subsequently remanded to the Navajo County Superior Court.
Applying Arizona law and predicting how the Arizona Supreme Court would rule, the majority for the Ninth Circuit determined various issues we are asked to decide in this appeal. Platt, 15 F.4th at 901, 905-06, 908. There was a partial dissent. Id. at 911. The Ninth Circuit's pronouncements of Arizona law are not binding on this court and can be "discredited at any time" by the courts of this state. Moore v. Sims, 442 U.S. 415, 428 (1979).
¶6 Upon remand, the parties filed competing motions for summary judgment. The Platts no longer sought declaratory or injunctive relief and only sought nominal damages. They again asserted Arizona's uncontested forfeiture system as exercised by the defendants violated their due process rights under the Arizona Constitution.
¶7 The superior court granted summary judgment in favor of the defendants and the state and denied the Platts' motion for summary judgment. The court concluded the Platts' claim failed on multiple grounds: (1) they did not file a notice of claim; (2) they did not establish a due process violation; (3) they did not show entitlement to nominal damages; and (4) the defendants were immune from suit. The court entered final judgment pursuant to Rule 54(c), Ariz. R. Civ. P., and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶8 On appeal, Ria argues the superior court erred in granting summary judgment in favor of the defendants and the state based on the rationale described above. We review a court's grant of summary judgment de novo. Tissicino, 211 Ariz. 416, ¶ 6. Summary judgment is proper if the moving party shows "there is no genuine dispute as to any material fact" and it is "entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a).
¶9 For the reasons that follow, we agree with the superior court that the Platts did not establish a due process violation. The court properly granted summary judgment to the defendants and the state on that ground, see id., and we need not reach the other issues Ria raises on appeal, see Schwab v. Matley, 164 Ariz. 421, 422 n.2 (1990) (unnecessary to reach other issues if singular issue dispositive).
Due Process Violation
¶10 Ria contends the superior court erred by concluding Arizona's former forfeiture statutes, which permitted uncontested forfeiture, did not deprive the Platts of due process under the Arizona Constitution. The court found that the Platts lacked standing to contest the forfeiture proceedings but that they were nevertheless afforded due process because "they not only had notice of the forfeiture, but were afforded the opportunity to present their side to a judicial body before any forfeiture order was entered." We review de novo whether a claimant has standing to contest a forfeiture, In re $39,500.00 U.S. Currency, 254 Ariz. 249, ¶ 11 (App. 2022), and whether a statute is constitutional as applied, State ex rel. Napolitano v. Gravano, 204 Ariz. 106, ¶ 11 (App. 2002).
A. 2016 forfeiture statutes
¶11 We begin with a brief overview of the relevant forfeiture statutes in effect in 2016 when the property was subject to forfeiture proceedings. The 2016 statutes provided that once property has been seized for forfeiture, the attorney for the state "shall determine whether it is probable that the property [wa]s subject to forfeiture and, if so, may cause the initiation of uncontested or judicial proceedings against the property." A.R.S. § 13-4308(A). If the state's attorney, in his discretion, makes uncontested forfeiture available, the owner of the property may "elect to file either a claim with the court" or "a petition for remission or mitigation of forfeiture with the attorney for the state," but "may not file both." A.R.S. § 13-4309(1), (2). The claim or petition must comply with various statutory requirements, including signature "by the claimant under penalty of perjury." A.R.S. § 13-4311(E); see § 13-4309(2).
We cite to the civil forfeiture statutes in effect at the time, the majority of which have been amended or repealed. See 2021 Ariz. Sess. Laws, ch. 327, §§ 10-23 (amending nearly all forfeiture statutes and repealing prior A.R.S. § 13-4309); 2022 Ariz. Sess. Laws, ch. 131, §§ 1-2.
¶12 If an owner timely files a petition for remission, the state's attorney shall provide the petitioner "with a written declaration of forfeiture, remission or mitigation of any or all interest in the property." § 13-4309(3)(b). If the property is declared forfeited, the owner may file a claim in superior court within thirty days of the mailing of the declaration of forfeiture. § 13-4309(3)(c). "If no petitions for remission or mitigation or claims are timely filed or if no petitioner files a claim in the court . . ., the attorney for the state shall apply to the court for an order of forfeiture and allocation of forfeited property ...." A.R.S. § 13-4314(A). "On the state's written application showing jurisdiction, notice and facts sufficient to demonstrate probable cause for forfeiture . . ., the court shall order the property forfeited to the state." Id. Any property forfeited to the state "shall be transferred as requested by the attorney for the state to the seizing agency or to the agency or political subdivision employing the attorney for the state," which may then be sold and the funds deposited into the county's "anti-racketeering fund." A.R.S. § 13-4315. That fund is administered by the county attorney. A.R.S. § 13-2314.03(A).
B. Forfeiture statutes as applied to the Platts
¶13 Pursuant to the statutes summarized above, Moore began the proceedings by filing a notice of pending forfeiture of the property. See § 13-4309. It stated "the State has chosen to make uncontested forfeiture available" and explained the Platts could either "(a) file a Petition for Remission or Mitigation with the State's attorney or (b) file a Claim with the Court," but not both. See id. The Platts responded to the notice stating the forfeiture was "NOT UNCONTESTED!" and asserting they were innocent owners. Although not titled as such, the Platts later asserted this was a petition for remission. See id. The purported petition, although compliant with the majority of the statutory requirements, was not executed under the penalty of perjury. See id.; § 13-4311(E).
The Platts alleged they had submitted the petition on June 28, 2016. The purported petition is not dated. Defendants alleged that even assuming the petition had been submitted on June 28, it was untimely because the notice had been filed by Moore on May 23. See § 13-4309(2) (petition for remission must be filed "within thirty days after the notice"). The superior court assumed in ruling on summary judgment that the purported petition for remission was timely filed. We do the same.
¶14 Moore applied to the superior court for forfeiture of the property without alerting the Platts to any deficiency. In his application, Moore stated the NCAO had received correspondence from the Platts but asserted it "did not meet the legal requirements for a . . . Petition for Remission" and thus was legally void under §§ 13-4311(E), (F) and 13-4309(2). Moore did not allege what legal requirements were lacking or attach a copy of the Platts' correspondence for the court's review.
¶15 Moore provided notice to the Platts of his application for forfeiture, and the Platts subsequently filed a claim for the property in the superior court. Moore moved to strike the claim, arguing it was untimely and improper under § 13-4309(2) (allowing petition for remission or claim with the court, but not both), § 13-3409(3)(c) (claim with court following uncontested forfeiture may be filed after property declared forfeited by the state). The Platts opposed the motion to strike asserting, in part, that the application for forfeiture should be regarded as a "declaration of forfeiture" and that their claim was timely filed. See § 13-4309(3)(c).
¶16 After the Platts filed this civil rights action, Moore filed a declaration of partial remission of the property and withdrew both his application for forfeiture and his motion to strike from the forfeiture proceeding. He asserted the property was subject to return to the Platts based on the "innocent owner exemption" but maintained the Platts had never obtained standing to contest the forfeiture and the forfeiture proceedings were authorized by Arizona law. The forfeiture proceeding was ultimately dismissed, and the property was never forfeited.
C. Analysis
¶17 Ria argues Moore violated the Platts' due process rights under the Arizona Constitution because he acted as both a prosecutor and as a biased decision maker with an "impermissible institutional pecuniary interest" in the forfeiture action. She asserts this occurred when Moore unilaterally determined the purported petition for remission was legally void and then applied for forfeiture on the grounds that "no petition[] for remission . . . or claim[] [was] timely filed." § 13-4314(A). Once that occurred, if Moore had shown "jurisdiction, notice and facts sufficient to demonstrate probable cause for forfeiture," the superior court would have no discretion to deny the forfeiture, which she argues deprived them of a neutral-decision maker. Id. The defendants seem to suggest that the Platts were not entitled to due process because they lacked standing to contest the forfeiture after filing a noncompliant petition. And regardless, both the state and defendants assert there could not have been a violation of due process because Moore did not have the power to act in an adjudicative capacity.
1. Standing
¶18 We first address the defendants' argument that the Platts were not entitled to due process because they lacked standing to contest the forfeiture. "To contest a forfeiture action, one must be a party to the action and have standing. In a civil forfeiture action, one acquires standing by alleging an interest in the property." In re $70,269.91 U.S. Currency, 172 Ariz. 15, 19 (App. 1991) (citation omitted). An owner "alleges an interest by filing a claim against the property." Id. A claim in a forfeiture action must satisfy two substantive concerns. Id. at 20. It must be timely and "be verified on oath or solemn affirmation because '[t]he danger of false claims in these cases is substantial.'" Id. (alteration in $70,269.91 U.S. Currency) (quoting Baker v. United States, 722 F.2d 517, 519 (9th Cir. 1983)). If these basic substantive concerns are satisfied, the superior court should consider allowing amendment to correct technical inadequacies in a claim that otherwise substantially complies with § 13-4311(E). Id. at 20-21; see also State ex rel. Brnovich v. Culver, 240 Ariz. 18, ¶¶ 3, 7 (App. 2016) (court properly denied claimant's Rule 60, Ariz. R. Civ. P., motion because claim untimely and did not comply with substantive statutory requirements).
¶19 The state suggests the propositions of law cited above apply to a petition for remission, although those cases refer to "claim[s]." And the defendants similarly argue the Platts never obtained standing to contest the forfeiture because their purported petition for remission was never signed under the penalty of perjury. Assuming the propositions of law cited above apply both to petitions for remission and claims filed with the superior court, the court in the forfeiture action apparently never struck the Platts' purported petition for remission or their subsequent claim. See $70,269.91 U.S. Currency, 172 Ariz. at 20 (claimant no longer had standing "[o]nce the court struck their claim"). And while the petition was not signed under the penalty of perjury, the claim was, and the claim also substantially complied with § 13-4311(E). We do not know whether the court would have ultimately struck the purported petition for remission or allowed for amendment and whether such amendment would be proper. See $70,269.91 U.S. Currency, 172 Ariz. at 20-21 (allowing amendment if substantive concerns satisfied); In re $3,000.00 U.S. Currency, 164 Ariz. 120, 120-21 (App. 1990) (not deciding if court "could have allowed verification" of defective petition for remission at hearing or by testimony). We also do not know if the court would have treated the claim as untimely and improper. We therefore, assume, without deciding, that the Platts had standing to contest the forfeiture.
2. Due Process
¶20 We nevertheless conclude the superior court did not err by finding the Platts "were not denied due process." "No person shall be deprived of life, liberty, or property without due process of law." Ariz. Const. art. II, § 4. "When the state seeks to forfeit a person's property, due process requires that the person be given notice of the proceedings and an opportunity to be heard." State v. 1810 E. Second Ave., 193 Ariz. 1, 5 (App. 1997); see also Reed v. Goertz, 598 U.S. 230, 236 (2023) ("A procedural due process claim consists of two elements: (i) deprivation by state action of a protected interest in life, liberty, or property, and (ii) inadequate state process.").
¶21 "The right to a neutral adjudicator has long been recognized as a component of a fair process. One cannot both participate in a case (for instance, as a prosecutor) and then decide the case." Horne v. Polk, 242 Ariz. 226, ¶ 17 (2017). An initial determination can be made by a party acting in an enforcement capacity and due process will be satisfied so long as a neutral adjudicator makes the ultimate decision of all factual and legal issues upon de novo review. Id. ¶ 21. But due process "does not permit the same individual to issue the initial decision finding violations," personally participate in prosecuting the case, and then make an ultimate decision "that will receive only deferential judicial review." Id. ¶ 1.
¶22 We understand the Platts' concern about § 13-4309 as observed by the majority for the Ninth Circuit. See Platt, 15 F.4th at 906. If the claimant filed a petition for remission with the state, that statute appeared to permit the state's attorney to unilaterally determine the petition was noncompliant without notice to the claimant, wait out the time period for filing a claim in superior court, and then maintain no petition was timely filed. See § 13-4309(4). Because the state would not have to declare the property forfeited in that circumstance, the claimant would arguably be prevented from filing a claim in court. See § 13-4309(3)(c) (if petition for remission filed, may file claim in court once state declares property forfeited); see also § 13-4309(1), (2) (may file petition for remission or claim in court but not both). The state could then apply for an ultimate decision of forfeiture from the superior court, proceeding on a lower burden of proof than that required in a contested proceeding. Compare § 13-4314(A) (requiring state only show probable cause for forfeiture), with § 13-4311(M) (requiring state show by preponderance of the evidence that property is subject to forfeiture). The court's review would then, arguably, be deferential because it had no discretion to deny the petition if the state complied with the statutory requirements. See § 13-4314(A). And, after forfeiture had been ordered, the state's attorney was permitted to transfer the property to his employer to then sell the property, the funds from which could be used for the benefit of its agency, see § 13-4315(A)(2), for example, "for the investigation and prosecution" of any racketeering offense, § 13-2314.03(E).
¶23 But we will not consider whether § 13-4309 facially violated due process. That statute was repealed in 2021, 2021 Ariz. Sess. Laws, ch. 327, § 17, and any such challenge is therefore moot, see Sandblom v. Corbin, 125 Ariz. 178, 182 (App. 1980) (case moot if "relief sought [is] either impossible or without practical effect on the parties to the action"). The question before us is whether the defendants' application of the statutory scheme to the Platts violated their procedural due process rights. We conclude it did not.
We disagree with the state that the as-applied challenge is moot. See Uzuegbunam v. Preczewski, 592 U.S. 279,__, 141 S.Ct. 792, 796-97, 802 (2021) (plaintiffs' nominal damages claim not moot although policy that had allegedly violated due process had been repealed rendering injunctive relief moot).
¶24 Ultimately, the Platts' property was never forfeited. The Platts had notice of the application of forfeiture and filed a claim to be heard by the superior court. See 1810 E. Second Ave., 193 Ariz. at 5 (due process in forfeiture requires notice and opportunity to be heard). Although that claim was arguably impermissible and Moore moved to strike it for noncompliance with the statutes, see § 13-4309(2), (3)(c), had the court denied Moore's motion, the Platts' claim may have triggered contested proceedings, see § 13-4309(3)(c) (may file claim pursuant to § 13-4311 after declaration of forfeiture); § 13-4311 (contested judicial forfeiture proceedings). And even if Moore initially was acting in both a prosecutorial and adjudicative capacity, such would have been permissible so long as a neutral adjudicator made the ultimate decision upon de novo review. See Horne, 242 Ariz. 226, ¶ 21; cf. Reed, 598 U.S. at 236 (procedural due process claim not complete when deprivation happens but when state fails to provide the process due). We do not know if the court would have held a contested proceeding or if the court would have made the ultimate decision of forfeiture solely on Moore's application, arguably providing only deferential review. See Horne, 242 Ariz. 226, ¶¶ 1, 21. The proceedings never reached that point, and, consequentially, the Platts' claim that they were deprived the opportunity to be heard by a neutral adjudicator is speculative. See Gonzales v. Ariz. State Bd. of Nursing, 255 Ariz. 132, ¶ 12 (App. 2023) ("[P]rocedural due process is a flexible concept: it calls for the procedural safeguards demanded in a particular case.").
¶25 Moreover, under Arizona law, a court does not find "reversible error" if a procedural due process violation is not prejudicial. County of La Paz v. Yakima Compost Co., 224 Ariz. 590, ¶ 12 (App. 2010); see also 1810 E. Second Ave., 193 Ariz. at 2, 5-6 (purported owner of property did not receive notice of forfeiture proceeding but nevertheless contested the matter, causing no prejudice from due process violation); United States v. Von Neumann, 474 U.S. 242, 250 (1986) (due process satisfied when no prejudice suffered from delay in response to petition for remission); cf. Ariz. Const. art. VI, § 27 ("No cause shall be reversed for technical error in . . . proceedings when upon the whole case it shall appear that substantial justice has been done.").
¶26 Again, no forfeiture was ever ordered here, and the Platts' property was returned to them. Although the state held the property for five months, the Platts' develop no meaningful argument on appeal that the seizure was unconstitutional. And because the property was never forfeited, we need not reach the argument that Moore had an "impermissible institutional pecuniary interest" in doing so. In sum, the Platts have not shown a procedural due process violation, and the superior court did not err by concluding summary judgment was proper for the defendants and the state as a matter of law.
Disposition
¶27 We affirm the superior court's grant of summary judgment in favor of the defendants and the state.