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KAMALA D. HARRIS
Attorney General of California
Marc A. LEFORESTIER
Supervising Deputy Attorney General
JOHN W. KILLEEN
Deputy Attorney General
State Bar No. 258395
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 445-1968
Fax: (916) 324-8835
E-mail: John. Killeen@doj.ca.gov
Attorneys for State of California
and Attorney General Kamala Harris
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
AUG 12 2014
Clerk of the Court
BY: MICHAEL RAYRAY
Deputy Clerk
Exempt from Filing Fees Pursuant to
Government Code §6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ERIN JONES,
Plaintiff,
v.
CITY AND COUNTY OF SAN
FRANCISCO et al.,
Defendants.
Case No. CGC-14-536898
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
JOINDER OF STATE OF CALIFORNIA
AND ATTORNEY GENERAL KAMALA
HARRIS IN AUGUST f, 2014
DEMURRER OF CITY AND COUNTY
OF SAN FRANCISCO TO SECOND
AMENDED COMPLAINT
Joinder in Reservation No. 080114-04
Date: October 7, 2014
Time: 9:30 am.
Dept: 302
Judge: Hon. Ernest H. Goldsmith
Trial Date: = None Set
Action Filed: January 21, 2014
Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
TABLE OF CONTENTS
ItrodUCtION oo. ee eseees essences nisms risnensenensnieennneeissesecsssssasenicescse |
Statement of Facts...
I, Nonjudicial forfeitures under Health and Safety Code section 11488.4.
IL. Plaintiff's allegations
Legal Standard on Demurret so... cece eeseseeteceseeseseeseeesesnssneesesesnsaneesesevsisneaeensissisneatentecseeneeees 4
ALQUMENE oes resesesneseeresneees
i
IL.
Conclusion
The State Defendants join in the City Defendants’ demurrer to the first
cause of action...........
Section 11488.4 is constitutional on its face... eee eee eee 5
A. On its face, section 11488.4 provides constitutionally sufficient
notice to individuals whose property may be subject to forfeiture. ............6
B. On its face, section 114884 provides individuals whose property
may be subject to forfeiture a 4 constitutionally sufficient opportunity
to contest the forfeiture. . ceteeeseneees
Cc. Due process is not violated because the seizing agencies receive
some of the forfeiture proceeds. 2... secseesesesesssseseerensssecseevenesnseeneerenseeee 9
sevneeneveestanecsecsiessaveavectecssesnaseenseveeseronananneesraseesnessersessunressesseseanrensesresreesiseanrerreneesnensersenees il
i
Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
TABLE OF AUTHORITIES
E
no
FEDERAL CASES
Caplin & Drysdale, Chartered v. United States
Concrete Pipe and Products of Cal., Ine. v. Constr. Laborers Pension Trust for S. Cal.
(1993) 508 US. 602 0... eee ccc ec ceneeeeeeeeeeereaceneneeeeensenenssearsetaneeseeasesessesnsenentesseseaeentesinenes 10
Dusenberry v. United States
(2002) 534 U.S. 161
Marshall v. Jerrico, Inc.
United States v. Eight Thousand Eight Hundred and Fifty Dollars (38,850) in
U.S. Currency
United States v. Von Neumann
(1986) 474 US, 242 i ecesceccsseseeseeseesecsssssseseescssessesscsessvsssesecsesseeneanecersecavaneesessvaaeeneaseeaceseaneuaee 9
STATE CASES
Blank v. Kirwan
(1985) 39 Cal. 3d SUL ccc cesessecsssesessessessersessesseesessesnenseneeseessaseeseessassasssssnsessessanesesersessensees $
Cal. Alliance for Utility Safety and Education v. City of San Diego
(1997) 56 Cal App 4th 1024 o.ooccccccccccsessesscsssssvesessvovsssssseesssesssesesssevntersususssssesessseseeessessesteseeeee 4
City of San Diego v. Boggess
(2013) 216 Cal App.4th 1494 ccc ceeesessesnessessesneseeseneeseensaneeneenesnsessanssnsessassessnesassessessens 5
Cuevas v. Superior Court
(2013) 221 Cal.App.4th 1312 ..
Nasir v. Sacramento County Office of the Dist. Atty.
(1992) Li Cal. App.4th 976 oo cc eceesseesa cea reeseessessassseesueesvesetesueeareareesresntesascarsaseeneeees 6,7,8
People v. Angeloni
(1995) 40 Cal App.4th 1267 oceans ianaseeneetessieercsnssssseercatetsene 8
People v. Broad
(1932) 216 Cal Docc eeeesessmeeesnasentesssustesenieesesensaee Oy 8
Picton v. Anderson Union High School
(1996) 50 Cal. App.4th 726
ii
Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
TABLE OF AUTHORITIES
(continued)
E
oo
i
Today's Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal.4th 197
Traverso v. People
(1993) 6 Cal 4th 1152 ice eeeeesnesnensavecrecsnennesensneressnasserseessecresessensavecreesesnesseneerereesee O
STATUTES
United States Code
Title 19
$1607 (8) eccceceeeeccccssnesnenessessseseeneesesssnesnesesssssseesstessssusssesssrserseeseeseaussetseeassesssseeneesesseersas O
Code of Civil Procedure
§ 430.50.
§ 526, subd. (a).
Health and Safety Code
§ 11000...
§ 11469, subd. (b)
§ 11469, subd. (j
§ 11470..
§ 11470, subd. (f
§ 11471.
§ 11488.4
§ 11488.4, subd. (a).
§ 11488.4, subd. (c).
§ 11488.4, subd. (e).
§ 11488.4, subd. (h)
§ 11488.4, subd. (j) .
§ 11488.5, subd. (a).
§ 11488.5, subd. (c).
§ MASI. recess
OTHER AUTHORITIES
Stats. 1994, ch, 314 (Assembly Bill No. 114). sees esseessersscsnsneenensesseenearsnsassseneaveneesscerensenes 2
iii
Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
Defendants the State of California and Kamala D. Harris, in her official capacity as
Attorney General of the State of California (“State Defendants”), submit this memorandum of
points and authorities in support of their demurrer to the second amended complaint, being filed
concurrently:
INTRODUCTION
In December 2013, the Court of Appeal, Fifth District, issued an opinion in Cuevas v.
Superior Court (2013) 221 Cal_App.4th 1312 (“Cuevas”). The Cuevas court required the Tulare
Police Department to return forfeited property to the plaintiff on the grounds that the Police
Department had not followed the procedures prescribed by the State’s forfeiture statutes.
Plaintiff here is a resident of San Francisco who is suing as a taxpayer. Plaintiff has not
suffered seizure or forfeiture of her property. Relying on Cuevas, Plaintiff alleges that the City
Defendants utilize forfeiture procedures that are inconsistent with the provisions of Health and
Safety Code section 11488.4. Plaintiff also challenges the constitutionality of Section 11488.4.
The State Defendants join in full the demurrer filed by the City Defendants on August
1, 2014. They also submit this demurrer to defend the facial constitutionality of California’s
forfeiture laws. Plaintiff's due process challenge must fail because Section 11488.4—on its
face--provides multiple forms of notice to an individual whose property may be subject to
forfeiture. Likewise, the statute provides an individual with an opportunity to be heard before his
or her property is forfeited. Every individual may obtain a hearing before a judge in the superior
court, if he or she avails themselves of the option. This system therefore provides ample due
process to those facing forfeiture of their property, which is why it has been consistently upheld
for decades. The Court should sustain this demurrer and dismiss the complaint with prejudice.
iy
fil
iii
iif
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
STATEMENT OF FACTS’
L NONJUDICIAL FORFEITURES UNDER HEALTH AND SAFETY CODE SECTION 11488.4,
California’s Uniform Controlled Substances Act governs State and local efforts to disrupt
the illegal drug trade in California. (See Health & Saf. Code”, § 11000 et seq.) One of the tools
available to state and local law enforcement agencies is civil forfeiture. In 1994, the Legislature
enacted the current civil forfeiture law, the purpose of which is to “remov[e] the tools and profits
from those engaged in the illicit drug trade.” (§ 11469, subd. (j); see Stats. 1994, ch. 314 [A.B.
l14].)
To accomplish this purpose, the Act provides that numerous forms of real and personal
property—including controlled substances, vehicles, and land—may be “subject to forfeiture” if
used in connection with the manufacture, distribution, or sale of controlled substances. (§ 11470.)
Likewise, “all moneys” “furnished or intended to be furnished by any person in exchange for a
controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable
instruments, or securities used or intended to be used to facilitate any violation [of the Act]” may
be subject to forfeiture. (§ 11470, subd. (f).)
The Act provides detailed procedures governing how law enforcement officials must seize
and forfeit drug-related property. (See § 11471 et seq. [seizure], § 11488.4 [forfeitures].)
Broadly speaking, the Act provides for “judicial” and “nonjudicial” forfeitures. (See § 11488.4.)
“Judicial forfeitures” are initiated when the “Attorney General or district attorney” files a petition
of forfeiture in the superior court after determining that seized property is related to a drug-related
offense. (§ 11488.4, subd. (a).) The superior court then determines whether the property is
subject to forfeiture. (/d.) Judicial forfeitures are the default forfeiture proceedings.
The Legislature has carved out an exception to the judicial forfeiture process when the
Attorney General or district attorney seeks forfeiture of “personal property not exceeding twenty~
five thousand dollars ($25,000) in value.” (§ 11488.4, subd. (j).) In these small value cases, the
' For purposes of this demurrer, the State Defendants assume as true the facts pleaded in
the complaint.
All statutory citations are to the Health and Safety Code, unless otherwise noted.
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
Legislature has created a separate proceeding, known as the nonjudicial or “administrative”
forfeiture. In this lawsuit, Plaintiff challenges Defendants’ practices relating only to nonjudicial
forfeitures, not to judicial forfeitures.
Section 11488.4, subdivision (j), governs nonjudicial forfeitures. It provides that “the
Attorney General or the district attorney... may... order forfeiture” of personal property worth
no more than $25,000. ($ 11488.4, subd. (j).) It then prescribes specific procedures for the
forfeiture:
First, the owner of the property being forfeited must be provided notice of the potential
forfeiture. (Zbid.) Specifically, the statute requires that “the Attorney General or district attorney
shall cause a notice of the seizure, if any, and of the intended forfeiture proceeding, as well as a
notice stating that any interested party may file a verified claim with the superior court . . . to be
served by personal delivery or by registered mail upon any person who has an interest in the
seized property or property subject to forfeiture other than persons designated in a receipt issued
for the property seized.” (§ 11488.4, subd. (c), incorporated into subdivision (j).)
The notice must contain a description of the property, the value of the property, the date and
place of seizure, the violations of law alleged with respect to the forfeiture, and instructions for
filing a claim (discussed below). (§ 11488.4, subd. (j).)
In addition to personal or mail notice, the law enforcement agency must publish the notice
once a week for three successive weeks in a newspaper of general circulation within the county
where the seizure occurred or where the property subject to forfeiture is located. (§ 11488.4, subd.
(e), incorporated into subdivision (j).)
Second, the notice “shall be accompanied by a claim form” and “directions for the filing
and service of a claim,” (§ 11488.4, subd. (c), incorporated into subdivision (j) [emphasis added].)
“Any person claiming an interest in the property seized” may file a claim in the superior court
“stating his or her interest in the property.” (§ 11488.5, subd. (a)(1).) The claim form must be
filed within 30 days of the claimant receiving actual or publication notice. (d.)
Third, if an interested party files a claim, he or she is entitled to a hearing. If a claim is
timely filed, the Attorney General or district attorney must file a petition of forfeiture in the
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
superior court within 30 days of the receipt of the claim. (See § 11488.4, subd. (j).) This
effectively transforms the nonjudicial proceeding into a judicial proceeding. (See § 11488.4,
subd. (h).)
If no party files a timely claim for recovery of the property, the Attorney General or the
district attorney “shall prepare a written declaration of forfeiture.” (§ 11488.4, subd. (j).) The
law enforcement agency must provide a copy of the declaration of forfeiture to any person listed
in the receipt given at time of seizure and to any person personally served notice of the forfeiture
proceedings. (/d.) The filing of the declaration of forfeiture “shall be deemed to provide good
and sufficient title to the forfeited property,” which is then distributed among government entities
in accordance with Section 11489. (§ 11488.4, subd. q).)
H. PLAINTIFF’S ALLEGATIONS
Plaintiff is a resident of San Francisco. Plaintiff does not allege that any of the Defendants
have seized or forfeited her property. Instead, Plaintiff brings her allegations under a theory of
taxpayer standing. (See Code of Civ. Proc., § 526, subd. (a).) In her first cause of action,
Plaintiff alleges that the notices of forfeiture issued by San Francisco law enforcement officers
are defective because the City Defendants did not comply with all of Section 11488.4’s detailed
requirements. Plaintiff seeks declaratory and injunctive relief, but also suggests that the remedy
for this noncompliance should be the return of forfeited property. Plaintiff alleges that the
procedures used by Defendants are “preempted” by the statewide Uniform Controlled Substances
Act. In her second cause of action, Plaintiff alleges that California’s nonjudicial forfeiture
scheme is unconstitutional both on its face and as applied.
LEGAL STANDARD ON DEMURRER
A defendant may object to a whole complaint or to any of the purported causes of action
within a complaint by demurrer. (Code Civ. Proc., § 430.50.) On demurrer, the trial court
considers the properly pled material facts and those matters which may be judicially noticed and
tests their sufficiency, (Cal. Alliance for Utility Safety And Education v. City of San Diego (1997)
56 Cal.App.4th 1024, 1028.) Courts treat as true all of the complaint’s material factual
allegations, but not the contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
(1985) 39 Cal.3d 311, 318.) The court determines if the complaint sufficiently states a cause of
action, assuming the truth of the facts set forth by the pleading, when ruling on demurrer. (Picton
v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.)
ARGUMENT
L THE STATE DEFENDANTS JOIN IN THE CITY DEFENDANTS’ DEMURRER TO THE
First Cause OF ACTION,
The State Defendants join in full the City Defendants’ demurrer to the Complaint’s first
cause of action, including the City Defendants’ arguments regarding Plaintiff's standing.
HL. SECTION 11488.4 Is CONSTITUTIONAL ON ITS FACE.
In addition to alleging specific violations of Section 11488.4 by the City Defendants,
Plaintiff alleges that California’s administrative forfeiture scheme, on its face, violates due
process’. (See Compl. {| 25-26, 30.) The standard for such a constitutional challenge is
“exacting.” (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57
Cal.4th 197, 218.) The Court must begin by recognizing the “strong presumption of the
constitutionality of an act of the Legislature. [Citation.]” (City of San Diego v. Boggess (2013)
216 Cal.App.4th 1494, 1503.) A law is presumed to be valid, and all doubts must be resolved in
favor of its validity. (/bid.) “[S]tatutes must be upheld as constitutional unless their invalidity
clearly, positively, and unmistakably appears. [Citation.]” (/bid.)
Plaintiff cannot meet this high standard. Nonjudicial forfeitures have been an accepted
feature of federal and California law for decades, As stated by one court:
It is readily apparent that administrative forfeiture procedures serve important public
interests. They conserve judicial resources and reduce court congestion by avoiding
the need for the court and its staff to process uncontested forfeiture actions. They
conserve the resources of the prosecuting authority by avoiding the necessity that
personnel and other resources be assigned to pursue uncontested forfeiture actions.
They reduce the burdens associated with storage and preservation of the property
pending completion of uncontested forfeiture proceedings. And they avoid
deterioration and depreciation over time to which some types of property may be
subject.
> Plaintiff has not articulated whether she brings this challenge under the due process
clause of the Federal Constitution or the due process clause of the State Constitution. The
difference is immaterial, however, because Section 1 1488.4 easily passes muster under either
clause,
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
(Nasir v, Sacramento County Office of the Dist. Aity. (1992) 11 Cal.App.4th 976, 985.) However
applied in practice, the statutes themselves—including Section 11488.4—have never seriously
been questioned, and for good reason. On its face, Section 11488.4 complies with due process.
In California, one whose property may be subject to forfeiture is entitled to notice and a
“hearing at which he can be heard.” (People v. Broad (1932) 216 Cal, 1, 3.) Section 11488.4
provides ample notice and an opportunity to be heard by the superior court. Accordingly,
Plaintiff's facial challenge must be rejected.
A. On Its Face, Section 11488.4 Provides Constitutionally Sufficient Notice To
Individuals Whose Property May Be Subject To Forfeiture.
One whose property is subject to forfeiture is entitled to notice. (People v. Broad, supra,
216 Cal. at p. 3.) “Actual notice” is not required. (Dusenberry v. U.S. (2002) 534 U.S. 161, 171.)
The Due Process Clause requires only “that the Government’s effort be reasonably calculated to
apprise a party of the pendency of the action.” (/d.)
In Dusenberry, the Supreme Court upheld notice procedures that are virtually identical to
those found in Section 11488.4. After a law enforcement agency has seized property that is
eligible for forfeiture and that it intends to forfeit, federal forfeiture law requires that (1) “notice
of the seizure” “be published for at least three successive weeks”; and that (2) “Written notice of
seizure together with information on the applicable procedures [| be sent to each party who
appears to have an interest in the seized article.” (19 U.S.C. § 1607(a).) After seizing $21,939 in
cash from the petitioner, the FBI sent letters of its intention to forfeit the cash by certified mail to
the petitioner care of the prison where he was incarcerated. (See Dusenberry, supra, 534 U.S. at
p. 164.) The FBI also sent letters to the address of the residence where the petitioner was arrested;
and to an address in the town where petitioner’s mother lived. Ud.) Some time later, the
petitioner moved for the return of his property, arguing that service was inadequate because the
government could not prove that he physically received notice while in prison (i.e. “actual
notice”), (/d. at p, 169.) The Court rejected the petitioner’s claims and held that notice by
certified mail satisfied the due process clause of the Federal Constitution.
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
Section 11488.4 is facially valid under Dusenberry. As recognized by a California court
over 20 years ago, “[i]n order to satisfy due process requirements,” the nonjudicial forfeiture
statute provides for multiple types of notice to a property owner. (Nasir, supra, 11 Cal.App.4th at
p. 982.)
First, the seizing agency must provide notice of the nonjudicial forfeiture to “every
individual designated in a receipt issued for the property seized” as well as “any person who has
an interest in the seized property or property subject to forfeiture other than persons designated in
a receipt issued for the property seized.” (§ 11488.4, subd. (c), incorporated by subdivision (j).)
Ata minimum, the notice must be served by personal delivery or by registered mail.‘ (Ibid.)
The statute painstakingly describes what must be included in the notice: (1) a description of
the property; (2) the appraised value of the property; (3) the date and place of seizure or location
of any property not seized but subject to forfeiture; (4) the violation of law alleged with respect to
the forfeiture of the property: (5) instructions for filing and serving a claim with the seizing
agency, and time limits for filing a claim. (§ 11488.4, subd. (j).) The notice must also be
accompanied by a claim form. (§ 11488.4, subd. (c).)
In addition to personal or mail notice, the seizing agency must publish the notice “three
successive weeks in a newspaper of general circulation in the county where the seizure was made
or where the property subject to forfeiture is located.” (§ 11488.4, subd. (c).)
Finally, if no claims are filed, the seizing agency must prepare a declaration of forfeiture. It
must serve this declaration on “any person listed in the receipt given at the time of seizure and to
any person personally served notice of the forfeiture proceedings.” (§ 11488.4, subd. (j).)
Thus, one with an interest in the seized property knows exactly what property is subject to
forfeiture, why it was seized, and how to contest the forfeiture. In Dusenberry, the Court found
constitutionally sufficient a procedure that provided for only publication notice and notice by
* Because subdivision (j)—the nonjudicial forfeiture proceeding—incorporates
subdivision (c)—which applies primarily to judicial forfeitures—there is an apparent ambiguity
about what process is due individuals “designated in a receipt issued for the property seized.” (§
11488.4, subdivision (j).) Contrary to the plain language of subdivision (c), which applies to
judicial forfeitures, in a nonjudicial forfeiture proceeding there is no initial petition to be served
by “service of process.”
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
certified mail. Section 11488.4, subdivision (j), provides for this level of notice: notice is served
by personal service or registered mail. It is also published. Under Dusenberry, due process is
satisfied.
But Section 11488.4 goes even farther. It requires that the seizing agency provide certain
details in its notice. It also requires that the agency serve a claim form and instructions for filing
aclaim. Finally, it requires service of the seizing agency’s declaration of forfeiture. This gives
the property owner one last chance to object, even if he or she initially neglected to file a claim.
All told, California’s nonjudicial forfeiture statute provides not just adequate notice to
owners of property subject to forfeiture. It provides more than is required by the due process
clause. (See, e.g, Nasir, supra, 11 Cal.App.4th at p. 982.)
B. On Its Face, Section 11488.4 Provides Individuals Whose Property May Be
Subject To Forfeiture A Constitutionally Sufficient Opportunity To
Contest The Forfeiture.
In addition to notice, an individual whose property may be subject to forfeiture is entitled to
“a hearing at which he can be heard.” (People v. Broad, supra, 216 Cal, at p. 3.) Plaintiff alleges
that “those with a financial interest in the proceedings—the seizing law enforcement and the local
district attorney’s office—are given unilateral authority to declare forfeiture without any judicial
scrutiny of any kind.” (Compl. { 25.)
This allegation is flat wrong. Section 11488.4 clearly provides for “judicial scrutiny” of
every forfeiture case, if requested by the property owner. Before effecting a nonjudicial forfeiture,
the seizing agency must serve the property owner with a claim form and “instructions for filing
and serving a claim” on the seizing agency. (§ 11488.4, subd. (j).) “Any person claiming an
interest in the property” can file a claim “within 30 days from the date of the first publication of
the notice of seizure, if that person was not personally served or served by mail, or within 30 days
after receipt of actual notice.” (§ 11488.5, subd. (a)(1).) The claim must be filed with the
superior court. (/d.)
Once the interested party files a claim, “(t]he nonjudicial proceeding is terminated.”
(People v. Angeloni (1995) 40 Cal.App.4th 1267, 1271.) The burden then shifts to the seizing
agency to “file a petition of forfeiture... within 30 days of the receipt of the claim.”
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
(§ 11488.4 , subd. (j).) If the seizing agency does so, a jury trial is held to adjudicate the
propriety of the forfeiture. (11488.5, subd. (c).) The statute thus provides a claimant with much
more than a barebones administrative hearing; instead, the claimant is entitled to a judicial
hearing before an unimpeachably neutral decisionmaker.
Having a judicial remedy available to every claimant who requests it satisfies due process.
(See United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency
(1983) 461 U.S. 555 [government’s delay of 18 months in filing a civil forfeiture complaint did
not deprive claimant of due process, where delay was justified and claimant received her day in
court]; United States v. Von Neumann (1986) 474 U.S. 242, 249 [“Implicit in this Court’s
discussion of timeliness in $8,830 was the view that the forfeiture proceeding, without more,
provides the postseizure hearing required by due process to protect Van Neumann’s property
interest in her car”] [emphasis added].) Due process is not violated because the statute requires a
claimant to take the affirmative action of filing a claim. (See Traverso v. People (1993) 6 Cal.4th
1152 [billboard owner’s failure to request hearing after receiving notice of intent to remove
billboard was fatal to due process challenge].) Nor is it violated by the fact that the agency has
seized the property prior to the hearing being held. (See U.S. v. $8,850, supra, 461 U.S. at p. 562
fn. 12.) What matters is that the property owner, in every case, receives an opportunity to be
heard by a judicial factfinder regarding his or her claims to the property. Due process requires no
more.
C. Due Process Is Not Violated Because The Seizing Agencies Receive Some
Of The Forfeiture Proceeds.
Plaintiff appears to allege that because “the seizing law enforcement agency and the local
district attorney’s office” have a “direct financial interest in the proceedings,” the entire forfeiture
scheme is constitutionally tainted. (Compl. § 25.) However, this is not the law.
Due process may be violated when a decisionmaker is not neutral because he or she stands
to benefit financially from the result of his or her decision. (Marshall v. Jerrico, Inc. (1980) 446
U.S. 238, 242.) However, the Supreme Court has drawn a sharp distinction between public
officers acting in a judicial capacity and public officers acting in a prosecutorial or enforcement
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
capacity. (Ud. at pp. 243-44.) For “officials performing judicial or quasi-judicial functions,”
(id. at p. 248) the Due Process Clause forbids any “procedure which would offer a possible
temptation to the average man as a judge to forget the burden of proof required to convict the
defendant or which might lead him not to hold the balance nice, clear, and true between the state
and the accused. [Citation.]” (/d. at p. 242.) This is so because it is the duty of judges “to make
the final decision[; their] impartiality serves as the ultimate guarantee of a free and meaningful
proceeding in our constitutional regime.” (Ud. at 249.)
However, this reasoning is “not applicable to those acting in a prosecutorial or plaintiff-like
capacity.” (/d. at 248.) Unlike judges, prosecutors “are necessarily permitted to be zealous in
their enforcement of the law.” (/d.) Indeed, the Court noted, “a state legislature may, and often
ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such
prosecutions rewards for thus acting in the interests of the state and the people.” (d. at p. 249.)
So long as the scheme did not inject a “personal interest, financial or otherwise,” into the
enforcement process, there was no due process violation when a public enforcer collects fines or
forfeiture on behalf of the state. (/d.) Instead, “where an initial determination is made by a party
acting in an enforcement capacity, due process may be satisfied by providing for a neutral
adjudicator to conduct a de novo review of all factual and legal issues. [Citation.]” (Concrete
Pipe and Products of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal. (1993) 508 U.S. 602,
618.)
Here, the seizing agency is acting in a prosecutorial function, not a judicial function. It
makes the initial forfeiture decision. But Section 11488.4 expressly provides for a “neutral
adjudicator to conduct a de novo review of all factual and legal issues.” (/d.)
Moreover, California’s administrative forfeiture scheme contains no personal financial
incentives for officers of the seizing agency. To counter the potential for such abuse, the law
expressly provides that “No prosecutor’s or sworn law enforcement officer's employment or
salary shall be made to depend upon the level of seizures or forfeitures he or she achieves.”
(§ 11469, subd. (b).) That some of the money seized ends up with the seizing agency is not
enough—standing alone—to constitute a due process violation.
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Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw
Finally, a statute is not facially invalid merely because it could be applied in a way that
might violate due process. (See Caplin & Drysdale, Chartered v. United States (1989) 491 U.S.
617, 634 [“Petitioner’s claim—that the power available to prosecutors under the statute could be
abused—proves too much, for many tools available to prosecutors can be misused in a way that
violates the rights of innocent persons . . . Every criminal law carries with it the potential for
abuse, but a potential for abuse does not require a finding of facial invalidity.”].)
CONCLUSION
For the reasons articulated above, the State Defendants request that the Court sustain this
demurrer and dismiss the complaint with prejudice.
Dated: August 8, 2014 Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
Marc A, LEFORESTIER
Supervising Deputy Attorney General
/s/John W. Killeen
JOHN W. KILLEEN
Deputy Attorney General
Attornevs for State of California
and Attorney General Kamala Harris
SA2014116424
11431077.doc
W
Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)DECLARATION OF SERVICE BY ELECTRONIC AND U.S. MAIL
Case Name: Jones, Erin y. City and County of San Francisco
No.: CGC-14-536898
I declare:
Lam employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. 1 am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On August 12, I served the attached MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF JOINDER OF STATE OF CALIFORNIA AND ATTORNEY
GENERAL KAMALA HARRIS IN AUGUST 1, 2014 DEMURRER OF CITY AND
COUNTY OF SAN FRANCISCO TO SECOND AMENDED COMPLAINT by Electronic
Service and U.S. Mail. I caused each document to be sent to each addressee at the electronic
service address listed by transmission to File & Serve Xpress. My electronic service address is
Tursun.Bier@doj.ca.gov.
In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail
system of the Office of the Attorney General, addressed as follows:
By U.S, Mail: By File and Service Xpress:
Mark T. Clausen Christine Van Aken
Attorney at Law Deputy City Attorney
759 Carr Avenue Office of the San Francisco City Attorney
Santa Rosa, California 95404 1 Dr. Carlton B. Goodlett Place
Attorney for Plaintiff City Hall, Room 234
San Francisco, CA 94102
E-mail Address:
christine. van.aken@sfgov.org
Attorney for City & County of San Francisco,
George Gascon, San Francisco County
District Attorneys Office, San Francisce Police
Department and San Francisco Sheriffs
Department
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on August 12, 2014, at Sacramento,
California.
Tursun Bier /s/Tursun Bier
Declarant Signature
SAROLAHG424
11431215.doe
Preview
aw KAMALA D. HARRIS Attorney General of California Marc A. LEFORESTIER Supervising Deputy Attorney General JOHN W. KILLEEN Deputy Attorney General State Bar No. 258395 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 445-1968 Fax: (916) 324-8835 E-mail: John. Killeen@doj.ca.gov Attorneys for State of California and Attorney General Kamala Harris ELECTRONICALLY FILED Superior Court of California, County of San Francisco AUG 12 2014 Clerk of the Court BY: MICHAEL RAYRAY Deputy Clerk Exempt from Filing Fees Pursuant to Government Code §6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ERIN JONES, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants. Case No. CGC-14-536898 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINDER OF STATE OF CALIFORNIA AND ATTORNEY GENERAL KAMALA HARRIS IN AUGUST f, 2014 DEMURRER OF CITY AND COUNTY OF SAN FRANCISCO TO SECOND AMENDED COMPLAINT Joinder in Reservation No. 080114-04 Date: October 7, 2014 Time: 9:30 am. Dept: 302 Judge: Hon. Ernest H. Goldsmith Trial Date: = None Set Action Filed: January 21, 2014 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw TABLE OF CONTENTS ItrodUCtION oo. ee eseees essences nisms risnensenensnieennneeissesecsssssasenicescse | Statement of Facts... I, Nonjudicial forfeitures under Health and Safety Code section 11488.4. IL. Plaintiff's allegations Legal Standard on Demurret so... cece eeseseeteceseeseseeseeesesnssneesesesnsaneesesevsisneaeensissisneatentecseeneeees 4 ALQUMENE oes resesesneseeresneees i IL. Conclusion The State Defendants join in the City Defendants’ demurrer to the first cause of action........... Section 11488.4 is constitutional on its face... eee eee eee 5 A. On its face, section 11488.4 provides constitutionally sufficient notice to individuals whose property may be subject to forfeiture. ............6 B. On its face, section 114884 provides individuals whose property may be subject to forfeiture a 4 constitutionally sufficient opportunity to contest the forfeiture. . ceteeeseneees Cc. Due process is not violated because the seizing agencies receive some of the forfeiture proceeds. 2... secseesesesesssseseerensssecseevenesnseeneerenseeee 9 sevneeneveestanecsecsiessaveavectecssesnaseenseveeseronananneesraseesnessersessunressesseseanrensesresreesiseanrerreneesnensersenees il i Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw TABLE OF AUTHORITIES E no FEDERAL CASES Caplin & Drysdale, Chartered v. United States Concrete Pipe and Products of Cal., Ine. v. Constr. Laborers Pension Trust for S. Cal. (1993) 508 US. 602 0... eee ccc ec ceneeeeeeeeeeereaceneneeeeensenenssearsetaneeseeasesessesnsenentesseseaeentesinenes 10 Dusenberry v. United States (2002) 534 U.S. 161 Marshall v. Jerrico, Inc. United States v. Eight Thousand Eight Hundred and Fifty Dollars (38,850) in U.S. Currency United States v. Von Neumann (1986) 474 US, 242 i ecesceccsseseeseeseesecsssssseseescssessesscsessvsssesecsesseeneanecersecavaneesessvaaeeneaseeaceseaneuaee 9 STATE CASES Blank v. Kirwan (1985) 39 Cal. 3d SUL ccc cesessecsssesessessessersessesseesessesnenseneeseessaseeseessassasssssnsessessanesesersessensees $ Cal. Alliance for Utility Safety and Education v. City of San Diego (1997) 56 Cal App 4th 1024 o.ooccccccccccsessesscsssssvesessvovsssssseesssesssesesssevntersususssssesessseseeessessesteseeeee 4 City of San Diego v. Boggess (2013) 216 Cal App.4th 1494 ccc ceeesessesnessessesneseeseneeseensaneeneenesnsessanssnsessassessnesassessessens 5 Cuevas v. Superior Court (2013) 221 Cal.App.4th 1312 .. Nasir v. Sacramento County Office of the Dist. Atty. (1992) Li Cal. App.4th 976 oo cc eceesseesa cea reeseessessassseesueesvesetesueeareareesresntesascarsaseeneeees 6,7,8 People v. Angeloni (1995) 40 Cal App.4th 1267 oceans ianaseeneetessieercsnssssseercatetsene 8 People v. Broad (1932) 216 Cal Docc eeeesessmeeesnasentesssustesenieesesensaee Oy 8 Picton v. Anderson Union High School (1996) 50 Cal. App.4th 726 ii Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw TABLE OF AUTHORITIES (continued) E oo i Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197 Traverso v. People (1993) 6 Cal 4th 1152 ice eeeeesnesnensavecrecsnennesensneressnasserseessecresessensavecreesesnesseneerereesee O STATUTES United States Code Title 19 $1607 (8) eccceceeeeccccssnesnenessessseseeneesesssnesnesesssssseesstessssusssesssrserseeseeseaussetseeassesssseeneesesseersas O Code of Civil Procedure § 430.50. § 526, subd. (a). Health and Safety Code § 11000... § 11469, subd. (b) § 11469, subd. (j § 11470.. § 11470, subd. (f § 11471. § 11488.4 § 11488.4, subd. (a). § 11488.4, subd. (c). § 11488.4, subd. (e). § 11488.4, subd. (h) § 11488.4, subd. (j) . § 11488.5, subd. (a). § 11488.5, subd. (c). § MASI. recess OTHER AUTHORITIES Stats. 1994, ch, 314 (Assembly Bill No. 114). sees esseessersscsnsneenensesseenearsnsassseneaveneesscerensenes 2 iii Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw Defendants the State of California and Kamala D. Harris, in her official capacity as Attorney General of the State of California (“State Defendants”), submit this memorandum of points and authorities in support of their demurrer to the second amended complaint, being filed concurrently: INTRODUCTION In December 2013, the Court of Appeal, Fifth District, issued an opinion in Cuevas v. Superior Court (2013) 221 Cal_App.4th 1312 (“Cuevas”). The Cuevas court required the Tulare Police Department to return forfeited property to the plaintiff on the grounds that the Police Department had not followed the procedures prescribed by the State’s forfeiture statutes. Plaintiff here is a resident of San Francisco who is suing as a taxpayer. Plaintiff has not suffered seizure or forfeiture of her property. Relying on Cuevas, Plaintiff alleges that the City Defendants utilize forfeiture procedures that are inconsistent with the provisions of Health and Safety Code section 11488.4. Plaintiff also challenges the constitutionality of Section 11488.4. The State Defendants join in full the demurrer filed by the City Defendants on August 1, 2014. They also submit this demurrer to defend the facial constitutionality of California’s forfeiture laws. Plaintiff's due process challenge must fail because Section 11488.4—on its face--provides multiple forms of notice to an individual whose property may be subject to forfeiture. Likewise, the statute provides an individual with an opportunity to be heard before his or her property is forfeited. Every individual may obtain a hearing before a judge in the superior court, if he or she avails themselves of the option. This system therefore provides ample due process to those facing forfeiture of their property, which is why it has been consistently upheld for decades. The Court should sustain this demurrer and dismiss the complaint with prejudice. iy fil iii iif 1 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw STATEMENT OF FACTS’ L NONJUDICIAL FORFEITURES UNDER HEALTH AND SAFETY CODE SECTION 11488.4, California’s Uniform Controlled Substances Act governs State and local efforts to disrupt the illegal drug trade in California. (See Health & Saf. Code”, § 11000 et seq.) One of the tools available to state and local law enforcement agencies is civil forfeiture. In 1994, the Legislature enacted the current civil forfeiture law, the purpose of which is to “remov[e] the tools and profits from those engaged in the illicit drug trade.” (§ 11469, subd. (j); see Stats. 1994, ch. 314 [A.B. l14].) To accomplish this purpose, the Act provides that numerous forms of real and personal property—including controlled substances, vehicles, and land—may be “subject to forfeiture” if used in connection with the manufacture, distribution, or sale of controlled substances. (§ 11470.) Likewise, “all moneys” “furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation [of the Act]” may be subject to forfeiture. (§ 11470, subd. (f).) The Act provides detailed procedures governing how law enforcement officials must seize and forfeit drug-related property. (See § 11471 et seq. [seizure], § 11488.4 [forfeitures].) Broadly speaking, the Act provides for “judicial” and “nonjudicial” forfeitures. (See § 11488.4.) “Judicial forfeitures” are initiated when the “Attorney General or district attorney” files a petition of forfeiture in the superior court after determining that seized property is related to a drug-related offense. (§ 11488.4, subd. (a).) The superior court then determines whether the property is subject to forfeiture. (/d.) Judicial forfeitures are the default forfeiture proceedings. The Legislature has carved out an exception to the judicial forfeiture process when the Attorney General or district attorney seeks forfeiture of “personal property not exceeding twenty~ five thousand dollars ($25,000) in value.” (§ 11488.4, subd. (j).) In these small value cases, the ' For purposes of this demurrer, the State Defendants assume as true the facts pleaded in the complaint. All statutory citations are to the Health and Safety Code, unless otherwise noted. 2 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw Legislature has created a separate proceeding, known as the nonjudicial or “administrative” forfeiture. In this lawsuit, Plaintiff challenges Defendants’ practices relating only to nonjudicial forfeitures, not to judicial forfeitures. Section 11488.4, subdivision (j), governs nonjudicial forfeitures. It provides that “the Attorney General or the district attorney... may... order forfeiture” of personal property worth no more than $25,000. ($ 11488.4, subd. (j).) It then prescribes specific procedures for the forfeiture: First, the owner of the property being forfeited must be provided notice of the potential forfeiture. (Zbid.) Specifically, the statute requires that “the Attorney General or district attorney shall cause a notice of the seizure, if any, and of the intended forfeiture proceeding, as well as a notice stating that any interested party may file a verified claim with the superior court . . . to be served by personal delivery or by registered mail upon any person who has an interest in the seized property or property subject to forfeiture other than persons designated in a receipt issued for the property seized.” (§ 11488.4, subd. (c), incorporated into subdivision (j).) The notice must contain a description of the property, the value of the property, the date and place of seizure, the violations of law alleged with respect to the forfeiture, and instructions for filing a claim (discussed below). (§ 11488.4, subd. (j).) In addition to personal or mail notice, the law enforcement agency must publish the notice once a week for three successive weeks in a newspaper of general circulation within the county where the seizure occurred or where the property subject to forfeiture is located. (§ 11488.4, subd. (e), incorporated into subdivision (j).) Second, the notice “shall be accompanied by a claim form” and “directions for the filing and service of a claim,” (§ 11488.4, subd. (c), incorporated into subdivision (j) [emphasis added].) “Any person claiming an interest in the property seized” may file a claim in the superior court “stating his or her interest in the property.” (§ 11488.5, subd. (a)(1).) The claim form must be filed within 30 days of the claimant receiving actual or publication notice. (d.) Third, if an interested party files a claim, he or she is entitled to a hearing. If a claim is timely filed, the Attorney General or district attorney must file a petition of forfeiture in the 3 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw superior court within 30 days of the receipt of the claim. (See § 11488.4, subd. (j).) This effectively transforms the nonjudicial proceeding into a judicial proceeding. (See § 11488.4, subd. (h).) If no party files a timely claim for recovery of the property, the Attorney General or the district attorney “shall prepare a written declaration of forfeiture.” (§ 11488.4, subd. (j).) The law enforcement agency must provide a copy of the declaration of forfeiture to any person listed in the receipt given at time of seizure and to any person personally served notice of the forfeiture proceedings. (/d.) The filing of the declaration of forfeiture “shall be deemed to provide good and sufficient title to the forfeited property,” which is then distributed among government entities in accordance with Section 11489. (§ 11488.4, subd. q).) H. PLAINTIFF’S ALLEGATIONS Plaintiff is a resident of San Francisco. Plaintiff does not allege that any of the Defendants have seized or forfeited her property. Instead, Plaintiff brings her allegations under a theory of taxpayer standing. (See Code of Civ. Proc., § 526, subd. (a).) In her first cause of action, Plaintiff alleges that the notices of forfeiture issued by San Francisco law enforcement officers are defective because the City Defendants did not comply with all of Section 11488.4’s detailed requirements. Plaintiff seeks declaratory and injunctive relief, but also suggests that the remedy for this noncompliance should be the return of forfeited property. Plaintiff alleges that the procedures used by Defendants are “preempted” by the statewide Uniform Controlled Substances Act. In her second cause of action, Plaintiff alleges that California’s nonjudicial forfeiture scheme is unconstitutional both on its face and as applied. LEGAL STANDARD ON DEMURRER A defendant may object to a whole complaint or to any of the purported causes of action within a complaint by demurrer. (Code Civ. Proc., § 430.50.) On demurrer, the trial court considers the properly pled material facts and those matters which may be judicially noticed and tests their sufficiency, (Cal. Alliance for Utility Safety And Education v. City of San Diego (1997) 56 Cal.App.4th 1024, 1028.) Courts treat as true all of the complaint’s material factual allegations, but not the contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan 4 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw (1985) 39 Cal.3d 311, 318.) The court determines if the complaint sufficiently states a cause of action, assuming the truth of the facts set forth by the pleading, when ruling on demurrer. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) ARGUMENT L THE STATE DEFENDANTS JOIN IN THE CITY DEFENDANTS’ DEMURRER TO THE First Cause OF ACTION, The State Defendants join in full the City Defendants’ demurrer to the Complaint’s first cause of action, including the City Defendants’ arguments regarding Plaintiff's standing. HL. SECTION 11488.4 Is CONSTITUTIONAL ON ITS FACE. In addition to alleging specific violations of Section 11488.4 by the City Defendants, Plaintiff alleges that California’s administrative forfeiture scheme, on its face, violates due process’. (See Compl. {| 25-26, 30.) The standard for such a constitutional challenge is “exacting.” (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 218.) The Court must begin by recognizing the “strong presumption of the constitutionality of an act of the Legislature. [Citation.]” (City of San Diego v. Boggess (2013) 216 Cal.App.4th 1494, 1503.) A law is presumed to be valid, and all doubts must be resolved in favor of its validity. (/bid.) “[S]tatutes must be upheld as constitutional unless their invalidity clearly, positively, and unmistakably appears. [Citation.]” (/bid.) Plaintiff cannot meet this high standard. Nonjudicial forfeitures have been an accepted feature of federal and California law for decades, As stated by one court: It is readily apparent that administrative forfeiture procedures serve important public interests. They conserve judicial resources and reduce court congestion by avoiding the need for the court and its staff to process uncontested forfeiture actions. They conserve the resources of the prosecuting authority by avoiding the necessity that personnel and other resources be assigned to pursue uncontested forfeiture actions. They reduce the burdens associated with storage and preservation of the property pending completion of uncontested forfeiture proceedings. And they avoid deterioration and depreciation over time to which some types of property may be subject. > Plaintiff has not articulated whether she brings this challenge under the due process clause of the Federal Constitution or the due process clause of the State Constitution. The difference is immaterial, however, because Section 1 1488.4 easily passes muster under either clause, 5 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw (Nasir v, Sacramento County Office of the Dist. Aity. (1992) 11 Cal.App.4th 976, 985.) However applied in practice, the statutes themselves—including Section 11488.4—have never seriously been questioned, and for good reason. On its face, Section 11488.4 complies with due process. In California, one whose property may be subject to forfeiture is entitled to notice and a “hearing at which he can be heard.” (People v. Broad (1932) 216 Cal, 1, 3.) Section 11488.4 provides ample notice and an opportunity to be heard by the superior court. Accordingly, Plaintiff's facial challenge must be rejected. A. On Its Face, Section 11488.4 Provides Constitutionally Sufficient Notice To Individuals Whose Property May Be Subject To Forfeiture. One whose property is subject to forfeiture is entitled to notice. (People v. Broad, supra, 216 Cal. at p. 3.) “Actual notice” is not required. (Dusenberry v. U.S. (2002) 534 U.S. 161, 171.) The Due Process Clause requires only “that the Government’s effort be reasonably calculated to apprise a party of the pendency of the action.” (/d.) In Dusenberry, the Supreme Court upheld notice procedures that are virtually identical to those found in Section 11488.4. After a law enforcement agency has seized property that is eligible for forfeiture and that it intends to forfeit, federal forfeiture law requires that (1) “notice of the seizure” “be published for at least three successive weeks”; and that (2) “Written notice of seizure together with information on the applicable procedures [| be sent to each party who appears to have an interest in the seized article.” (19 U.S.C. § 1607(a).) After seizing $21,939 in cash from the petitioner, the FBI sent letters of its intention to forfeit the cash by certified mail to the petitioner care of the prison where he was incarcerated. (See Dusenberry, supra, 534 U.S. at p. 164.) The FBI also sent letters to the address of the residence where the petitioner was arrested; and to an address in the town where petitioner’s mother lived. Ud.) Some time later, the petitioner moved for the return of his property, arguing that service was inadequate because the government could not prove that he physically received notice while in prison (i.e. “actual notice”), (/d. at p, 169.) The Court rejected the petitioner’s claims and held that notice by certified mail satisfied the due process clause of the Federal Constitution. 6 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw Section 11488.4 is facially valid under Dusenberry. As recognized by a California court over 20 years ago, “[i]n order to satisfy due process requirements,” the nonjudicial forfeiture statute provides for multiple types of notice to a property owner. (Nasir, supra, 11 Cal.App.4th at p. 982.) First, the seizing agency must provide notice of the nonjudicial forfeiture to “every individual designated in a receipt issued for the property seized” as well as “any person who has an interest in the seized property or property subject to forfeiture other than persons designated in a receipt issued for the property seized.” (§ 11488.4, subd. (c), incorporated by subdivision (j).) Ata minimum, the notice must be served by personal delivery or by registered mail.‘ (Ibid.) The statute painstakingly describes what must be included in the notice: (1) a description of the property; (2) the appraised value of the property; (3) the date and place of seizure or location of any property not seized but subject to forfeiture; (4) the violation of law alleged with respect to the forfeiture of the property: (5) instructions for filing and serving a claim with the seizing agency, and time limits for filing a claim. (§ 11488.4, subd. (j).) The notice must also be accompanied by a claim form. (§ 11488.4, subd. (c).) In addition to personal or mail notice, the seizing agency must publish the notice “three successive weeks in a newspaper of general circulation in the county where the seizure was made or where the property subject to forfeiture is located.” (§ 11488.4, subd. (c).) Finally, if no claims are filed, the seizing agency must prepare a declaration of forfeiture. It must serve this declaration on “any person listed in the receipt given at the time of seizure and to any person personally served notice of the forfeiture proceedings.” (§ 11488.4, subd. (j).) Thus, one with an interest in the seized property knows exactly what property is subject to forfeiture, why it was seized, and how to contest the forfeiture. In Dusenberry, the Court found constitutionally sufficient a procedure that provided for only publication notice and notice by * Because subdivision (j)—the nonjudicial forfeiture proceeding—incorporates subdivision (c)—which applies primarily to judicial forfeitures—there is an apparent ambiguity about what process is due individuals “designated in a receipt issued for the property seized.” (§ 11488.4, subdivision (j).) Contrary to the plain language of subdivision (c), which applies to judicial forfeitures, in a nonjudicial forfeiture proceeding there is no initial petition to be served by “service of process.” 7 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw certified mail. Section 11488.4, subdivision (j), provides for this level of notice: notice is served by personal service or registered mail. It is also published. Under Dusenberry, due process is satisfied. But Section 11488.4 goes even farther. It requires that the seizing agency provide certain details in its notice. It also requires that the agency serve a claim form and instructions for filing aclaim. Finally, it requires service of the seizing agency’s declaration of forfeiture. This gives the property owner one last chance to object, even if he or she initially neglected to file a claim. All told, California’s nonjudicial forfeiture statute provides not just adequate notice to owners of property subject to forfeiture. It provides more than is required by the due process clause. (See, e.g, Nasir, supra, 11 Cal.App.4th at p. 982.) B. On Its Face, Section 11488.4 Provides Individuals Whose Property May Be Subject To Forfeiture A Constitutionally Sufficient Opportunity To Contest The Forfeiture. In addition to notice, an individual whose property may be subject to forfeiture is entitled to “a hearing at which he can be heard.” (People v. Broad, supra, 216 Cal, at p. 3.) Plaintiff alleges that “those with a financial interest in the proceedings—the seizing law enforcement and the local district attorney’s office—are given unilateral authority to declare forfeiture without any judicial scrutiny of any kind.” (Compl. { 25.) This allegation is flat wrong. Section 11488.4 clearly provides for “judicial scrutiny” of every forfeiture case, if requested by the property owner. Before effecting a nonjudicial forfeiture, the seizing agency must serve the property owner with a claim form and “instructions for filing and serving a claim” on the seizing agency. (§ 11488.4, subd. (j).) “Any person claiming an interest in the property” can file a claim “within 30 days from the date of the first publication of the notice of seizure, if that person was not personally served or served by mail, or within 30 days after receipt of actual notice.” (§ 11488.5, subd. (a)(1).) The claim must be filed with the superior court. (/d.) Once the interested party files a claim, “(t]he nonjudicial proceeding is terminated.” (People v. Angeloni (1995) 40 Cal.App.4th 1267, 1271.) The burden then shifts to the seizing agency to “file a petition of forfeiture... within 30 days of the receipt of the claim.” 8 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw (§ 11488.4 , subd. (j).) If the seizing agency does so, a jury trial is held to adjudicate the propriety of the forfeiture. (11488.5, subd. (c).) The statute thus provides a claimant with much more than a barebones administrative hearing; instead, the claimant is entitled to a judicial hearing before an unimpeachably neutral decisionmaker. Having a judicial remedy available to every claimant who requests it satisfies due process. (See United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency (1983) 461 U.S. 555 [government’s delay of 18 months in filing a civil forfeiture complaint did not deprive claimant of due process, where delay was justified and claimant received her day in court]; United States v. Von Neumann (1986) 474 U.S. 242, 249 [“Implicit in this Court’s discussion of timeliness in $8,830 was the view that the forfeiture proceeding, without more, provides the postseizure hearing required by due process to protect Van Neumann’s property interest in her car”] [emphasis added].) Due process is not violated because the statute requires a claimant to take the affirmative action of filing a claim. (See Traverso v. People (1993) 6 Cal.4th 1152 [billboard owner’s failure to request hearing after receiving notice of intent to remove billboard was fatal to due process challenge].) Nor is it violated by the fact that the agency has seized the property prior to the hearing being held. (See U.S. v. $8,850, supra, 461 U.S. at p. 562 fn. 12.) What matters is that the property owner, in every case, receives an opportunity to be heard by a judicial factfinder regarding his or her claims to the property. Due process requires no more. C. Due Process Is Not Violated Because The Seizing Agencies Receive Some Of The Forfeiture Proceeds. Plaintiff appears to allege that because “the seizing law enforcement agency and the local district attorney’s office” have a “direct financial interest in the proceedings,” the entire forfeiture scheme is constitutionally tainted. (Compl. § 25.) However, this is not the law. Due process may be violated when a decisionmaker is not neutral because he or she stands to benefit financially from the result of his or her decision. (Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242.) However, the Supreme Court has drawn a sharp distinction between public officers acting in a judicial capacity and public officers acting in a prosecutorial or enforcement 9 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw capacity. (Ud. at pp. 243-44.) For “officials performing judicial or quasi-judicial functions,” (id. at p. 248) the Due Process Clause forbids any “procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant or which might lead him not to hold the balance nice, clear, and true between the state and the accused. [Citation.]” (/d. at p. 242.) This is so because it is the duty of judges “to make the final decision[; their] impartiality serves as the ultimate guarantee of a free and meaningful proceeding in our constitutional regime.” (Ud. at 249.) However, this reasoning is “not applicable to those acting in a prosecutorial or plaintiff-like capacity.” (/d. at 248.) Unlike judges, prosecutors “are necessarily permitted to be zealous in their enforcement of the law.” (/d.) Indeed, the Court noted, “a state legislature may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interests of the state and the people.” (d. at p. 249.) So long as the scheme did not inject a “personal interest, financial or otherwise,” into the enforcement process, there was no due process violation when a public enforcer collects fines or forfeiture on behalf of the state. (/d.) Instead, “where an initial determination is made by a party acting in an enforcement capacity, due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review of all factual and legal issues. [Citation.]” (Concrete Pipe and Products of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal. (1993) 508 U.S. 602, 618.) Here, the seizing agency is acting in a prosecutorial function, not a judicial function. It makes the initial forfeiture decision. But Section 11488.4 expressly provides for a “neutral adjudicator to conduct a de novo review of all factual and legal issues.” (/d.) Moreover, California’s administrative forfeiture scheme contains no personal financial incentives for officers of the seizing agency. To counter the potential for such abuse, the law expressly provides that “No prosecutor’s or sworn law enforcement officer's employment or salary shall be made to depend upon the level of seizures or forfeitures he or she achieves.” (§ 11469, subd. (b).) That some of the money seized ends up with the seizing agency is not enough—standing alone—to constitute a due process violation. 10 Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)aw Finally, a statute is not facially invalid merely because it could be applied in a way that might violate due process. (See Caplin & Drysdale, Chartered v. United States (1989) 491 U.S. 617, 634 [“Petitioner’s claim—that the power available to prosecutors under the statute could be abused—proves too much, for many tools available to prosecutors can be misused in a way that violates the rights of innocent persons . . . Every criminal law carries with it the potential for abuse, but a potential for abuse does not require a finding of facial invalidity.”].) CONCLUSION For the reasons articulated above, the State Defendants request that the Court sustain this demurrer and dismiss the complaint with prejudice. Dated: August 8, 2014 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California Marc A, LEFORESTIER Supervising Deputy Attorney General /s/John W. Killeen JOHN W. KILLEEN Deputy Attorney General Attornevs for State of California and Attorney General Kamala Harris SA2014116424 11431077.doc W Memorandum of Points and Authorities in Support of Joinder (CGC-14-536898)DECLARATION OF SERVICE BY ELECTRONIC AND U.S. MAIL Case Name: Jones, Erin y. City and County of San Francisco No.: CGC-14-536898 I declare: Lam employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. 1 am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On August 12, I served the attached MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINDER OF STATE OF CALIFORNIA AND ATTORNEY GENERAL KAMALA HARRIS IN AUGUST 1, 2014 DEMURRER OF CITY AND COUNTY OF SAN FRANCISCO TO SECOND AMENDED COMPLAINT by Electronic Service and U.S. Mail. I caused each document to be sent to each addressee at the electronic service address listed by transmission to File & Serve Xpress. My electronic service address is Tursun.Bier@doj.ca.gov. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows: By U.S, Mail: By File and Service Xpress: Mark T. Clausen Christine Van Aken Attorney at Law Deputy City Attorney 759 Carr Avenue Office of the San Francisco City Attorney Santa Rosa, California 95404 1 Dr. Carlton B. Goodlett Place Attorney for Plaintiff City Hall, Room 234 San Francisco, CA 94102 E-mail Address: christine. van.aken@sfgov.org Attorney for City & County of San Francisco, George Gascon, San Francisco County District Attorneys Office, San Francisce Police Department and San Francisco Sheriffs Department I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 12, 2014, at Sacramento, California. Tursun Bier /s/Tursun Bier Declarant Signature SAROLAHG424 11431215.doe