Jones v. Greene

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FREDDIE LEE JONES, )

)

Plaintiff/Appellant, )

) Davidson Chancery

) No. 93-3580-I

VS. )

) Appeal No.

) 01-A-01-9505-CH-00187

MICHAEL C. GREENE, )

COMMISSIONER, TENNESSEE

DEPARTMENT OF SAFETY,

)

) FILED

)

Defendant/Appellee. ) December 4, 1996

Cecil W. Crowson

Appellate Court Clerk

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

E.E. Edwards, III Charles W. Burson

James A. Simmons Attorney General and Reporter

Nashville, Tennessee

Rebecca Lyford

Counsel to the State

Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves over $45,000 seized during the search of a house in

Memphis for illegal drugs. After the Commissioner of Safety ordered the

forfeiture of the money, the person claiming the funds filed a petition for review

in the Chancery Court for Davidson County asserting that the forfeiture statutes

deprived him of his constitutional right to a jury trial and violated the Equal

Protection and Due Process Clauses of the United States and Tennessee

Constitutions. The trial court upheld the forfeiture statutes and the forfeiture, and

this appeal followed. We have determined that Tennessee’s forfeiture statutes are

constitutional and that the record contains substantial and material evidence

supporting the commissioner’s forfeiture order. Accordingly, we affirm the

judgment.

I.

On May 26, 1989, the Shelby County Sheriff’s Department obtained a

warrant to search the house at 2491 Haischi Street in Memphis based on reliable

information that cocaine was being stored and sold there. When the deputies

executed the warrant on May 27, 1989, they encountered Halbert Brown 1 who

confirmed that he lived in the house. The search yielded four handguns, an M-1

carbine, 0.6 grams of cocaine, 1.5 grams of marijuana, and drug paraphernalia.

The deputies also discovered $541 in Mr. Brown’s pants pocket and $5,380 in a

padlocked closet in one bedroom. In addition, they found a paper grocery sack

hidden behind a built-in entertainment center containing over $40,065, divided

into two thousand dollar rolls separately wrapped in plastic sandwich bags.

Mr. Brown was arrested and questioned at the scene. He denied that the

seized money was his and insisted that he did not know who the money belonged

to. After Mr. Brown refused to sign a notice of seizure form, the deputies mailed

him a copy of the form several days later by certified mail. The form stated that

1

Mr. Brown had been arrested previously in October 1988 for possessing cocaine for

resale. He pled guilty to a lesser possession charge in March 1990 at the same time that he pled

guilty to the possession charges resulting from this incident.

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the money and other property would be forfeited unless a written claim was filed

with the Commissioner of Safety within fifteen days after the date of the notice.

No one filed a timely claim for the property. On August 9, 1989, the

commissioner ordered the forfeiture of the $45,986 and notified Mr. Brown of his

action by certified mail. On August 16, 1989, a lawyer representing both Mr.

Brown and Freddie Lee Jones requested the commissioner to reconsider his order.

Mr. Jones asserted that he too resided at 2491 Haischi Street, that all the money

found in the house, except the $541 in Mr. Brown’s pocket, belonged to him, and

that he had not received proper notice of the forfeiture proceeding.2 The

commissioner denied the petition for reconsideration, and the Chancery Court for

Davidson County affirmed the commissioner’s decision. This court, however,

reversed the denial of Mr. Jones’s claim and remanded the case to the

commissioner for further proceedings. Brown v. Tennessee Dep’t of Safety, App.

No. 01A01-9102-CH-00043, slip op. at 11 (Tenn. Ct. App. April 1, 1992) (No

Tenn. R. App. P. 11 application filed).

The commissioner assigned the case to an administrative law judge after the

remand. The ALJ denied Mr. Jones’s motion to transfer the case to circuit court

for a jury trial and conducted a hearing on Mr. Jones’s petition for the return of the

$45,445 on October 22 and 23, 1992. On June 10, 1993, the ALJ filed an initial

order concluding that the $40,065 found in the paper bag hidden behind the

entertainment center should be returned to Mr. Jones.

All parties appealed the ALJ’s initial decision to the commissioner. On

October 4, 1994, the commissioner filed an order denying Mr. Brown’s recusal

motion and declining to address the constitutionality of the forfeiture statutes. The

commissioner also concluded that Mr. Jones had failed to prove that he resided at

2491 Haischi Street when the money was seized and that Mr. Jones had failed to

establish an interest in the seized money. Accordingly, the commissioner ordered

the forfeiture of the entire $45,986 to the seizing agency.

2

Mr. Jones was never charged with a criminal offense based on the illegal drugs found

during the search of the 2491 Haischi Street house.

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Mr. Jones filed a petition for review in the Chancery Court for Davidson

County alleging that the forfeiture statute was unconstitutional in several

particulars and that the commissioner’s decision was not supported by substantial

evidence. The trial court determined that the forfeiture statutes were not

constitutionally suspect and that the commissioner’s decision was supported by

substantial evidence. This appeal followed.

II.

EVOLUTION OF THE DRUG FORFEITURE STATUTES

Tennessee’s drug forfeiture statutes have changed substantially over the

past sixty years. The first civil forfeiture procedure was enacted in 1937 when the

General Assembly passed the Uniform Narcotic Law.3 The law required the

forfeiture and disposal of “[a]ll narcotic drugs,4 the lawful possession of which is

not established or the title to which cannot be ascertained.” See Tenn. Code Ann.

§ 52-1315. It also provided for a judicial forfeiture proceeding conducted by “the

court or magistrate having jurisdiction.” See Tenn. Code Ann. § 52-1315(a).

Eighteen years later, the General Assembly enacted additional legislation

regarding the seizure and confiscation of contraband drugs.5 The “contraband

drugs” covered by this Act included marijuana and substances defined as “narcotic

drugs” in the Uniform Narcotic Drug Law. See Tenn. Code Ann. § 52-1401

(repealed 1971). The new statutes not only authorized the forfeiture of contraband

drugs but, for the first time, authorized the forfeiture of conveyances used to

transport contraband drugs. See Tenn. Code Ann. § 52-1403 (repealed 1971).

3

Act of May 21, 1937, ch. 255, 1937 Tenn. Pub. Acts 1028 (codified at Tenn. Code Ann.

§§ 52-1301 through -1323 (repealed 1971)). The legislation tracked the Uniform Narcotic Drug

Act drafted by the National Conference of Commissioners on Uniform State Laws in 1932. See

Uniform Narcotic Drug Act, 9B U. L.A. 11 (amended 1958).

4

The original statute defined “narcotic drugs” to include cocoa leaves, opium, and every

other substance neither chemically nor physically distinguishable from them. Act of May 21,

1937, ch. 255, § 1, 1937 Tenn. Pub. Acts 1028, 1030. Later amendments added other substances

to the definition.

5

Act of Feb. 23, 1955, ch. 83, 1955 Tenn. Pub. Acts 258 (codified originally at Tenn.

Code Ann. §§ 52-1401 through -1407; parts later transferred and redesignated as Tenn. Code

Ann. §§ 53-11-201 through -204).

-4-

In another significant departure from the Uniform Narcotic Drug Law, the

1955 statute provided for an administrative, rather than a judicial, forfeiture

proceeding.6 See Tenn. Code Ann. § 52-1404 (codified as amended at Tenn. Code

Ann. § 53-11-201 (Supp. 1996)). Persons claiming an interest in property seized

as contraband were authorized to file a written claim with the Commissioner of

Safety, and the commissioner was empowered to conduct a hearing on the claim.7

See Tenn. Code Ann. § 52-1404. Persons dissatisfied with the commissioner’s

disposition of the claim were permitted to obtain judicial review by filing a

common-law writ of certiorari in the Circuit Court for Davidson County. See

Tenn. Code Ann. § 52-1405 (codified as Tenn. Code Ann. § 53-11-202(a)-(e)).

The review was limited to the record of the proceedings before the commissioner,

and the parties were specifically not permitted to introduce additional evidence in

the circuit court proceeding.

In 1971 the General Assembly replaced most of the Uniform Narcotic Drug

Law with the “Tennessee Drug Control Act of 1971.”8 This Act again increased

the number of drugs considered to be “controlled substances.”9 It also expanded

the types of property subject to forfeiture to include raw materials and equipment

used to produce illegal controlled substances, property used to contain illegal

controlled substance or raw materials, and books, records, and other materials

used to violate the law.10 While retaining the administrative forfeiture procedure

6

This administrative proceeding appears to have been patterned after the administrative

forfeiture proceedings used for illegal tobacco sales, see Act of Mar. 5, 1937, ch. 133, § 7, 1937

Tenn. Pub. Acts 587, 592-94, and illegal manufacture and sale of alcoholic beverages. See Act

of Mar. 5, 1939, ch. 49, § 19, 1939 Tenn. Pub. Acts 199, 231.

7

In the absence of a timely claim, the seized property was summarily forfeited. See Tenn.

Code Ann. § 52-1406 (codified at Tenn. Code Ann. § 53-11-203 (1991)).

8

Act of May 3, 1971, ch. 163, 1971 Tenn. Pub. Acts 366. The purpose of this Act was

“to provide for a comprehensive system of drug and drug abuse control for Tennessee.” It was

patterned after the Uniform Controlled Substances Act drafted by the National Conference of

Commissioners on Uniform State Laws in 1970. See Uniform Controlled Substances Act, 9 [Pt.

II] U.L.A. 1 (1987).

9

Act of May 3, 1971, ch. 163, § 2(d), 1971 Tenn. Pub. Acts 366, 367. The term

“controlled substance” was later redefined in Act of May 24, 1989, ch. 591, § 1, 1989 Tenn. Pub.

Acts 1169, 1254 (presently codified at Tenn. Code Ann. § 39-17-402(4) (Supp. 1996)).

10

Act of May 3, 1971, ch. 163, §§ 36(a)(2), 36(a)(3), 36(a)(5), 1971 Tenn. Pub. Acts 366,

402-03. This provision was first codified at Tenn. Code Ann. § 52-1433. In 1983, it was

transferred and redesignated as Tenn. Code Ann. § 53-11-409, and in 1990 it was again

(continued...)

-5-

established in 1955,11 the Act empowered the circuit and criminal courts to enjoin

violations of the controlled substance laws and gave defendants in these civil

proceedings a statutory right to a jury trial.12

During the intervening twenty-five years, the General Assembly has

expanded the scope of the civil drug forfeiture laws on five occasions. In 1972 it

added “money or any other thing of value” received in an illegal drug transaction

to the list of property subject to forfeiture.13 In 1983, it authorized the forfeiture

of “all proceeds traceable” to an illegal drug transaction,14 and one year later it

authorized the forfeiture of “drug paraphernalia.” 15 In 1986, and again in 1994,

it modified the scope of the provision relating to the forfeiture of conveyances.16

The caption and preamble of the 1986 Act amending the drug forfeiture

procedures reveal that the General Assembly considered but rejected a provision

authorizing the forfeiture of real property used to facilitate an illegal drug

transaction.17 The General Assembly revisited the issue four years later and

determined that both real property used to facilitate an illegal drug transaction and

interests in real property acquired with the proceeds of an illegal drug transaction

10

(...continued)

transferred and redesignated as Tenn. Code Ann. § 53-11-451.

11

Act of May 3, 1971, ch. 163, § 36(i), 1971 Tenn. Pub. Acts 366, 405 (codified at Tenn.

Code Ann. § 53-11-451(I) (Supp. 1996)).

12

Act of May 3, 1971, ch. 163, § 34(b), 1971 Tenn. Pub. Acts 366, 400 (codified as

amended at Tenn. Code Ann. § 53-11-407 (Supp. 1996)).

13

Act of Mar. 27, 1972, ch. 597, § 12, 1972 Tenn. Pub. Acts 446, 448-49 (codified as

amended at Tenn. Code Ann. § 53-11-451(a)(6) (Supp. 1996)).

14

Act of May 11, 1983, ch. 412, § 4, 1983 Tenn. Pub. Acts 794, 796 (codified at Tenn.

Code Ann. § 53-11-451(a)(6)).

15

Act of May 23, 1984, ch. 1005, § 4, 1984 Tenn. Pub. Acts 1190, 1192 (codified at Tenn.

Code Ann. § 53-11-451(a)(7) (Supp. 1996)).

16

Act of Apr. 3, 1986, ch. 783, § 1, 1986 Tenn. Pub. Acts 759, 759 (codified at Tenn.

Code Ann. § 53-11-451(a)(4)); Act of Apr. 20, 1994, ch. 925, § 2, 1994 Tenn. Pub. Acts 848,

856 (codified at Tenn. Code Ann. § 53-11-451(a)(4)). The preamble of the 1986 Act declared

that the federal civil drug forfeiture statute, 21 U.S.C. § 881 (1988 & Supp. 1992), “serves the

purpose set out herein and mirrors the intent of the legislature.”

17

The Act’s caption described it as “[an Act] to subject to forfeiture all real property used

to facilitate a violation of Tennessee Code Annotated, Section 39-6-401, et seq. . . .” See Act of

Apr. 3, 1986, ch. 783, 1986 Tenn. Pub. Acts 759.

-6-

should be subject to forfeiture.18 Forfeitures of interests in real property differ

from all other civil drug forfeitures in three material respects. First, the forfeiture

cannot occur until the holder of an interest in the real property is convicted of a

specified drug-related offense.19 Second, the forfeiture procedure is judicial rather

than administrative and is commenced by the filing of a “civil forfeiture suit” by

a district attorney general or the State Attorney General and Reporter.20 Third, the

defendants in these civil proceedings have a statutory right to a jury trial.21

The final step in the evolution of Tennessee’s civil drug forfeiture

procedures occurred in 1994 when the General Assembly established a uniform

procedure governing the forfeiture of personal property.22 This new procedure

does not apply to all types of forfeitures, but it does specifically apply to

forfeitures of personal property authorized by Tenn. Code Ann. § 53-11-451. See

Tenn. Code Ann. § 40-33-201 (Supp. 1996) (amendments effective January 1,

1997). It will also supplant the procedure in Tenn. Code Ann. § 53-11-201.23

Like the former procedure, the new uniform procedure follows an

administrative model. Claimants seeking to recover personal property subject to

forfeiture under Tenn. Code Ann. § 53-11-451 must still file a timely claim with

the Commissioner of Safety. Tenn. Code Ann. § 40-33-206 (Supp. 1996).

Claimants are entitled to a contested case hearing conducted in accordance with

the Uniform Administrative Procedures Act. Tenn. Code Ann. § 40-33-209(d)

(Supp. 1996). Persons dissatisfied with a final agency order may seek judicial

review by filing a written “notice of review” in either the circuit or chancery

courts of Davidson County. Tenn. Code Ann. § 40-33-213 (Supp. 1996). The

18

Act of Mar. 22, 1990, ch. 774, 1990 Tenn. Pub. Acts 260 (codified at Tenn. Code Ann.

§ 53-11-452 (Supp. 1996)).

19

Tenn. Code Ann. § 53-11-452(a)(2).

20

Tenn. Code Ann. § 53-11-452(d)(1)(A).

21

Tenn. Code Ann. § 53-11-452(c)(4).

22

Act of Apr. 20, 1994, ch. 925, 1994 Tenn. Pub. Acts 848 (codified at Tenn. Code Ann.

§§ 40-33-201 through -214 (Supp. 1996)).

23

The Act provides that all existing forfeiture procedures applicable to property covered

by the Act are repealed to the extent that they are inconsistent with the new uniform procedure.

See Act of Apr. 20, 1994, ch. 925, § 3, 1994 Tenn. Pub. Acts 848, 856.

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standard of review in these proceedings tracks Tenn. Code Ann. § 4-5-322(h)

(Supp. 1996), except that the reviewing court must weigh the evidence using the

preponderance of the evidence standard. Tenn. Code Ann. § 40-33-213(a), -

213(b) (Supp. 1996). Parties seeking judicial review are not entitled to a jury,

Tenn. Code Ann. § 4-5-322(g) (Supp. 1996), and the review is limited to the

administrative record except to the extent that Tenn. Code Ann. § 4-5-322(e) and

-322(g) permit the introduction of additional evidence.

During all relevant times in this case, the money seized at the 2491 Haischi

Street house was subject to forfeiture under Tenn. Code Ann. § 53-11-

451(a)(6)(A) or its predecessors. Persons claiming an interest in the money had

a statutory right to file a claim with the Department of Safety and to participate in

an administrative proceeding during which the state had the burden of proving by

a preponderance of the evidence that the money should be forfeited. Persons

dissatisfied with the commissioner’s decision had the right to seek judicial review

in accordance with the Uniform Administrative Procedures Act.24 This review is

based on the administrative record and is conducted by the trial court sitting

without a jury.

III.

CONSTITUTIONAL RIGHT TO A JURY TRIAL

The right to a jury trial guaranteed by Tenn. Const. art. I, § 6 is among the

most valuable personal rights contained in Tennessee’s Declaration of Rights.

Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 540, 354 S.W.2d 464,

467 (1962); Bank v. Cooper, 10 Tenn. (2 Yer.) 599, 604 (1831). Every version of

our constitution has used the same language to define this right, and thus its

contours have remained unchanged for the past 120 years. State ex rel. Timothy

v. Howse, 134 Tenn. 67, 80-81, 183 S.W. 510, 514 (1915). Tenn. Const. art. I, §

6 guarantees the right to a jury trial as it existed at common law when the

24

The scope and procedure for judicial review of administrative decisions in drug

forfeiture cases has been governed by the Uniform Administrative Procedures Act since 1986

when the General Assembly did away with the common-law writ of certiorari proceeding in

Tenn. Code Ann. § 53-11-202 that had been used since 1955. Act of Apr. 3, 1986, ch. 738, § 3,

1986 Tenn. Pub. Acts 604, 606.

-8-

Tennessee Constitution of 1796 was adopted. Town of Smyrna v. Ridley, 730

S.W.2d 318, 321 (Tenn. 1987); Willard v. State, 174 Tenn. 642, 645, 130 S.W.2d

99, 100 (1939); Marler v. Wear, 117 Tenn. 244, 246, 96 S.W. 447, 448 (1906).

Tenn. Const. art. I, § 6 does not guarantee a jury trial in every sort of case.

State ex rel. Timothy v. Howse, 134 Tenn. at 81, 183 S.W. at 514. It does not

apply to cases that could be tried without a jury prior to 1796, Newport Hous.

Auth. v. Ballard, 839 S.W.2d 86, 88 (Tenn. 1992); Memphis & Shelby County Bar

Ass’n, Inc. v. Vick, 40 Tenn. App. 206, 216-17, 290 S.W.2d 871, 876 (1955), and

there were many types of cases that could be tried without a jury at that time.

Goddard v. State, 10 Tenn. (2 Yer.) 96, 99-100 (1825). The common law did not

require a jury trial in equitable proceedings,25 proceedings in which there were no

disputed factual issues,26 proceedings for the punishment of small offenses,27 or

paternity proceedings.28

The common law also did not require a trial by jury in “summary

proceedings.” A summary proceeding is one that is more speedy and informal

than a customary legal proceeding. State ex rel. Mynatt v. King, 137 Tenn. 17, 29-

30, 191 S.W. 352, 355 (1916); State ex rel. Timothy v. Howse, 134 Tenn. at 82,

183 S.W. at 514. A summary proceeding has been recognized as permissible in

cases involving the ouster of public officials for misconduct,29 disbarment of

lawyers,30 and election contests.31 It has also been approved in confiscation

25

State v. Hartley, 790 S.W.2d 276, 277-78 (Tenn. 1990); State ex rel. Balsinger v. Town

of Madisonville, 222 Tenn. 272, 280, 435 S.W.2d 803, 806 (1968).

26

State v. Moore, 206 Tenn. 96, 98, 332 S.W.2d 176, 177 (1960).

27

Trigally v. Mayor of Memphis, 46 Tenn. (6 Cold.) 382, 386-87 (1869).

28

Kirkpatrick v. State, 19 Tenn. (Meigs) 124, 126 (1838); Goddard v. State, 10 Tenn. at

99-100.

29

State ex rel. Timothy v. Howse, 134 Tenn. at 82, 183 S.W. at 514-15.

30

Davis v. State, 92 Tenn. 634, 642, 23 S.W. 59, 62 (1893).

31

Shields v. McMahan, 112 Tenn. 1, 5, 81 S.W. 597, 597 (1903), rev’d on other grounds,

Brown v. Hows, 163 Tenn. 138, 155-56, 40 S.W.2d 1017, 1022 (1931).

-9-

proceedings involving vehicles used to transport contraband alcoholic beverages32

and game animals taken out of season.33

In addition to the proceedings that did not require a trial by jury prior to

1796, Tenn. Const. art. I, § 6 does not apply to claims or proceedings established

after the adoption of the Tennessee Constitution of 1796. Accordingly, the

General Assembly is now free to fashion new claims and remedies that do not

include the use of a jury. Plasti-Line, Inc. v. Tennessee Human Rights Comm’n.,

746 S.W.2d 691, 694 (Tenn. 1988); State ex rel. Cates v. Standard Oil Co., 120

Tenn. 86, 137, 110 S.W. 565, 577 (1908).34

IV.

JURY TRIALS IN DRUG FORFEITURE CASES

Every state has enacted statutes permitting the confiscation and forfeiture

of property used in or derived from the sale of illegal drugs. Most of these statutes

follow a judicial model that requires the seizing agency to commence forfeiture

proceedings in court. Tennessee is one of five states that follow an administrative

model in which forfeiture cases are processed by an administrative agency with

the right of judicial review of the agency’s decision.35 The choice between the

judicial or administrative model influences the claimant’s right to a jury trial.

32

Casone v. State, 176 Tenn. 279, 284, 140 S.W.2d 1081, 1083 (1940); Caneperi v. State,

169 Tenn. 472, 475-76, 89 S.W.2d 164, 165 (1936).

33

State v. McCrary, 205 Tenn. 306, 311, 326 S.W.2d 473, 475 (1959).

34

The federal courts have reached the same conclusion with regard to the guarantee of a

jury trial in U. S. Const. amend. VII. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-49,

57 S. Ct. 615, 629 (1937); United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 458

(7th Cir. 1980).

35

In addition to Tennessee, Hawaii, New Hampshire, Rhode Island, and Washington have

established an administrative process for disposing of some types of drug forfeiture cases. See

Haw. Rev. Stat. § 712A-10 (Supp. 1992) (administrative forfeiture hearings before the attorney

general concerning seized property whose value does not exceed $100,000); N.H. Rev. Stat.

Ann. § 318-B:17-d (1995) (administrative forfeiture hearings before the Department of Justice

with regard to seized property whose value does not exceed $75,000); R.I. Gen. Laws § 21-28-

5.04.2(h) (1989) (administrative forfeiture hearings before the attorney general concerning seized

property whose value does not exceed $20,000); Wash. Rev. Code Ann. § 69.50.505(e) (West

Supp. 1996) (administrative hearings conducted before the chief law enforcement officer of the

seizing agency).

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Many states have enacted forfeiture statutes that not only establish the right

to recover seized property but also proscribe the procedure for asserting this right.

In these jurisdictions, the statute itself frequently states whether or not the

claimant may request a trial by jury.36 However, other states and the federal

government have simply created a new statutory right to sue to recover confiscated

property without providing a new procedure for asserting the right. When a statute

does not provide a specific remedy, the parties are left to their common-law

remedies. In these circumstances, the prevailing weight of authority is that the

claimant has a right to a jury trial even if the confiscation statute does not

specifically require one.37 Several courts, however, have reached different

results.38

We need not enter the debate concerning whether persons seeking to

recover seized property had a right at common law to have a jury consider their

claim because the General Assembly has created a statutory forfeiture procedure

that does not include the use of a jury. The Tennessee Constitution vests in the

General Assembly the power to enact legislation to protect the health, safety, and

welfare of our citizens, and Tenn. Const. art. I, § 6 does not limit the General

Assembly’s power to establish new claims and remedies that do not require a trial

36

Forfeiture statutes specifically dispensing with a jury include: Alaska Stat. §

17.30.116(c) (Michie 1983); Ariz. Rev. Stat. Ann. § 13-4311(D) (Supp. 1996); Colo.Rev. Stat.

§ 16-13-505(6) (Supp. 1996); Conn. Gen. Stat. Ann. § 54-36h(b) (West 1994); Ga. Code Ann.

§ 16-13-49(o)(5) (1996); Idaho Code § 37-2744(d)(1)(3)(D) (1994); Kan. Stat. Ann. § 60-

4113(g) (1994); Me. Rev. Stat. Ann. tit. 15, § 5822(4) (West Supp.) (1995); N.H. Rev. Stat. Ann.

§ 318-B:17-b (IV)(e) (1995); Utah Code Ann. § 58-37-13(9)(g) (Supp. 1996); Vt. Stat. Ann.

tit.18, § 4244(d) (Supp. 1995). Forfeiture statutes specifically providing for a jury trial include:

Cal. Health & Safety Code § 11488.5(c)(2) (West Supp. 1996); Fla. Stat. Ann. § 932.704(2)

(West Supp. 1996); N.Y. Penal Law § 480.10 (Supp. 1996); R.I. Gen. Laws § 21-28-5.04.2(j)

(1989); Va. Code Ann. § 19.2-386.10 (Michie 1995); W. Va. Code § 60A-7-705 (1992).

37

United States v. One 1976 Mercedes Benz 280S, 618 F.2d at 458; People v. One 1941

Chevrolet Coupe, 231 P.2d 832, 844 (Cal. 1951); In re Forfeiture of 1978 Chevrolet Van, 493

So.2d 433, 436 (Fla. 1986); Idaho Dep’t of Law Enforcement ex rel. Code v. Free, 885 P.2d 381,

384-85 (Idaho 1994); People ex rel. O’Malley v. 6323 N. LaCrosse Ave., 634 N.E.2d 743, 746

(Ill. 1994); Commonwealth v. One 1972 Chevrolet Van, 431 N.E.2d 209, 209 (Mass. 1982);

Colon v. Lisk, 47 N.W. 302, 303 (N.Y. 1897); Keeter v. State ex rel. Saye, 198 P. 866, 870 (Okla.

1921); State v. 1920 Studebaker Touring Car, 251 P. 701, 704 (Or. 1926); Commonwealth v.

One (1) 1984 Z-28 Camaro Coupe, 610 A.2d 36, 39 (Pa. 1992); Medlock v. 1985 Ford F-150

Pick Up, 417 S.E.2d 85, 87 (S.C. 1992).

38

Swails v. State, 431 S.E.2d 101, 103 (Ga. 1993); State v. Clark, 670 So.2d 493, 501 (La.

Ct. App. 1996); In re Forfeiture of $1,159,420, 486 N.W.2d 326, 337 (Mich. Ct. App. 1992);

State v. One 1921 Cadillac Touring Car, 195 N.W. 778, 780 (Minn. 1923); State v. Morris, 405

S.E.2d 351, 352-53 (N.C. Ct. App. 1991).

-11-

by jury. Accordingly, Tennessee’s administrative forfeiture statutes do not run

afoul of Tenn. Const. art. I, § 6.

V.

DUE PROCESS CLAIMS

Mr. Jones also challenges the commissioner’s order on due process

grounds. He asserts that the administrative proceedings were unfair because they

were presided over by the Commissioner of Safety. He also asserts that the delay

between the seizure and the administrative hearings deprived him of his right to

a prompt hearing at a meaningful time. We find these claims to be without merit.

A.

PECUNIARY BIAS OF THE COMMISSIONER OF SAFETY

Parties to administrative proceedings, like parties to judicial proceedings,

are entitled to a neutral decision-maker. Cooper v. Williamson County Bd. of

Educ., 803 S.W.2d 200, 202 (Tenn. 1990); Ogrodowcyk v. Tennessee Bd. for

Licensing Health Care Facilities, 886 S.W.2d 246, 252-53 (Tenn. Ct. App. 1994)

(Cantrell, J., concurring). Accordingly, members of administrative agencies are

subject to the same disqualification standards that apply to judges when they are

performing adjudicatory functions. Tennessee Cable Television Ass’n v.

Tennessee Pub. Serv. Comm’n, 844 S.W.2d 151, 164-65 (Tenn. Ct. App. 1992);

Tenn. Code Ann. § 4-5-302(a) (1991).

Judges cannot have a personal financial stake in the proceedings before

them. Tenn. S. Ct. R.10, Canon 3(C)(1)(c). Accordingly, judicial officers must

disqualify themselves if their decision affects their personal compensation.

Connally v. Georgia, 429 U.S. 245, 250, 97 S. Ct. 546, 548 (1977); In re Dender,

571 S.W.2d 491, 492 (Tenn. 1978). This principle applies to administrative

decision-makers. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 1698

(1973); Ogrodowcyk v. Tennessee Bd. for Licensing Health Care Facilities, 886

S.W.2d at 253.

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This record contains no evidence that the Commissioner of Safety has a

direct, personal pecuniary interest in the outcome of forfeiture hearings like the

one involved in this case. His decisions do not affect his personal compensation.

Forfeited property seized by a state agency is sold at a public sale by the

Commissioner of General Services,39 and the proceeds of the sale are deposited in

the state treasury subject to being allocated back to the Department of Safety to

be used to enforce the laws regulating narcotic drugs and marijuana.40 The

Department of Safety does not have access to the proceeds from the sale of

property seized by the Tennessee Bureau of Investigation or local law enforcement

agencies.41

Administrative decision-makers are presumed to carry out their duties with

honesty and integrity. Cooper v. Williamson County Bd. of Educ., 803 S.W.2d at

203; Tennessee Cable Television Ass’n v. Tennessee Pub. Serv. Comm’n, 844

S.W.2d at 165. Thus, the party claiming bias bears the burden of proving the

grounds for disqualification. Gay v. City of Somerville, 878 S.W.2d 124, 127

(Tenn. Ct. App. 1994). Neither the commissioner nor his department could have

benefitted from this forfeiture proceeding since the money at issue was seized by

a local law enforcement agency. Accordingly, Mr. Jones has failed to substantiate

his bias claim with either legal authority or facts.

B.

DELAY BETWEEN THE SEIZURE AND THE HEARING

Mr. Jones asserts that the 41-month delay between the seizure of the money

and the hearing on his claim violated his constitutional right to a hearing at a

meaningful time and his statutory right to a prompt hearing. He argues that the

delay is entirely attributable to the government and that he was prejudiced because

two key witnesses became unavailable during this period. We have concluded that

the delay between the seizure and the hearing is not of constitutional significance.

39

Tenn. Code Ann. § 53-11-201(b)(1) (Supp. 1996).

40

Tenn. Code Ann. § 53-11-204 (1991).

41

Tenn. Code Ann. § 53-11-451(d)(4).

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This case presents the first opportunity for this court to consider the claim

that a delay between the seizure of property and the forfeiture hearing violated a

claimant’s right to a hearing at a meaningful time under the Fifth and Fourteenth

Amendments to the United States Constitution and the Due Process Clause in

Tenn. Const. art. I, § 8. Since the Tennessee Supreme Court has found the scope

of the due process protections in the Tennessee Constitution to be similar to those

in the United States Constitution, Doe v. Norris, 751 S.W.2d 834, 838 (Tenn.

1988); State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980), we will

look to federal precedents for helpful guidance.

The United States Supreme Court has recognized that delay in instituting

civil forfeiture proceedings can violate a claimant’s due process rights. Drawing

from its speedy trial jurisprudence, the Court determined that forfeiture delay

claims require an examination of the facts of each case in light of the following

four factors: (1) the length of the delay, (2) the reason for the delay, (3) the

claimant’s assertion of his or her rights, and (4) the prejudice to the claimant

caused by the delay. United States v. Eight Thousand Eight Hundred and Fifty

Dollars in United States Currency, 461 U.S. 555, 564, 103 S. Ct. 2005, 2012

(1983). The Tennessee Supreme Court has adopted essentially the same test to

determine whether pre-accusatorial delay violates due process. State v. Gray, 917

S.W.2d 668, 673 (Tenn. 1996) (holding that the courts must consider the length

of the delay, the reason for the delay, and the degree of prejudice, if any, to the

accused).

Of these factors, the most critical is the prejudice to the accused. State v.

Hallock, 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993); Tillery v. State, 565

S.W.2d 509, 510 (Tenn. Crim. App. 1978). For the purposes of the inquiry, the

courts are chiefly concerned with the prejudice to a party’s ability to marshal its

evidence and to present its case. Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct.

2182, 2193 (1972); State v. Vance, 888 S.W.2d 776, 778 (Tenn. Crim. App. 1994).

A delay will be considered constitutionally harmless without a clear showing of

actual prejudice. State v. Hallock, 875 S.W.2d at 289.

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The 41-month delay between the seizure of the money and the forfeiture

hearing, while extremely long, cannot be solely attributable to the law

enforcement authorities. Mr. Jones did not file a timely claim for the return of the

money, and his standing to claim the money was contested in the courts. The

courts did not finally resolve Mr. Jones’s right to claim the money until April

1992. We cannot fault the commissioner for not holding the forfeiture hearing

while Mr. Jones’s right to claim the money was being litigated. The commissioner

held the administrative hearing on Mr. Jones’s claim within six months after this

court decided that he should be given an opportunity to claim the seized money.42

Thus, the facts provide no basis for concluding that the commissioner intentionally

delayed the hearing to gain a tactical advantage over Mr. Jones.

Prejudice is evident when witnesses die or disappear while a hearing is

delayed. Barker v. Wingo, 407 U.S. at 532, 92 S. Ct. at 2193. However, persons

seeking to prove that a delay impaired their ability to present favorable evidence

must demonstrate actual prejudice by offering some proof of the witness’s

expected testimony and of their efforts to assure that these witnesses would attend

the hearing. State v. Perkins, 713 S.W.2d 689, 692 (Tenn. Crim. App. 1986);

Woodson v. State, 579 S.W.2d 893, 897 (Tenn. Crim. App. 1978); Farr v. State,

506 S.W.2d 811, 814 (Tenn. Crim. App. 1974).

Mr. Jones asserts that two key witnesses, Halbert Brown and Kathryn

Smith, became unavailable because of the delay. Mr. Brown was living at the

Haischi Street house at the time of the seizure, and Ms. Smith was Mr. Jones’s

former girlfriend. Mr. Jones intended to use these witnesses to prove that he was

also residing at 2491 Haischi Street at the time of the seizure. Mr. Jones has not

satisfactorily demonstrated that the delay prevented him from calling these

witnesses or that their testimony would have been of material assistance.

Mr. Jones did not complain about his inability to call these witness after this

case was remanded for a hearing before the commissioner. In June 1992, he

represented in a brief that his witnesses had not disappeared. One month later, his

42

The hearing would have been held two months earlier in August 1992 had Mr. Jones

not failed to appear at a scheduled deposition.

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lawyer did not include the absence or disappearance of witnesses among the

problems confronting him during an argument to the administrative law judge

concerning how the delay had prejudiced his client. Thus, we can only conclude

that these witnesses were available to Mr. Jones as late as one month before the

original date of the forfeiture hearing.

Mr. Jones has never come forward with an explanation of either Mr.

Brown’s

or Ms. Smith’s disappearance between July and October 1992. In fact, Ms. Smith

had not disappeared at all because Mr. Jones announced at the hearing that he

knew where she was and that she was available for a telephone deposition. He

never explained the steps he had taken to assure her attendance at the hearing.

Likewise, he never described the steps he had taken to assure Mr. Brown’s

attendance at the hearing. The department had, however, attempted

unsuccessfully to subpoena Mr. Brown.

Mr. Jones also failed to demonstrate how Mr. Brown’s and Ms. Smith’s

testimony would have been helpful to him. He intended to call them solely for the

purpose of substantiating his claim that he was also living at 2491 Haischi Street

in May 1989 when the money was seized. He has never indicated that either of

these witnesses could have provided testimony concerning the other necessary

element of his claim - that he owned the money he was seeking to recover. In fact,

the record shows affirmatively that these two witnesses would have been of no

assistance on this issue. Mr. Brown told the authorities at the time of the seizure

that he did not know who the money belonged to, and Mr. Jones testified at the

October 1992 hearing that Ms. Smith did not know how much money he had.

The delay between the seizure of the money and the forfeiture hearing was,

for the most part, caused by the protracted litigation over Mr. Jones’s right to

claim the seized money. Mr. Jones has not convinced us that this delay seriously

undermined his ability to present his claim. Accordingly, we have concluded that

Mr. Jones was provided a hearing on his claim at a meaningful time under the

circumstances.

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VI.

THE ADEQUACY OF THE SUPPORTING PROOF

Finally, Mr. Jones asserts that the commissioner’s decision is not supported

by substantial and material evidence. He argues that the commissioner’s financial

bias caused him to overlook the overwhelming evidence establishing Mr. Jones’s

ownership of the seized money. Having already resolved the allegations

concerning the commissioner’s alleged bias, we now turn to the evidentiary

support for the commissioner’s decision.

A.

Our review of the commissioner’s decision is governed by the Uniform

Administrative Procedures Act. Tenn. Code Ann. § 4-5-322(h)(5) (Supp. 1996)

requires the courts to reverse a final administrative decision that is “unsupported

by evidence which is both substantial and material in the light of the entire

record.” We do not reweigh the evidence under this standard. Sanifill of

Tennessee, Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807,

810 (Tenn. 1995); Humana of Tennessee v. Tennessee Health Facilities Comm’n,

551 S.W.2d 664, 667 (Tenn. 1977). Rather, we review the record to determine

whether the administrative decision is based on “such relevant evidence as a

reasonable mind might accept to support a rational conclusion and such as to

furnish a reasonably sound basis for the action under consideration.” Southern Ry.

Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984).

An agency’s decision may be supported by substantial and material

evidence even when the evidence could support another conclusion. Hughes v.

Board of Comm’rs, 204 Tenn. 298, 305, 319 S.W.2d 481, 484 (1958); Estate of

Street v. State Bd. of Equalization, 812 S.W.2d 583, 587 (Tenn. Ct. App. 1990).

Thus, the possibility of drawing inconsistent conclusions from the proof does not

prevent an agency’s decision from being supported by substantial and material

evidence. See Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S. Ct.

1018, 1026 (1966); 2 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative

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Law Treatise § 11.2 at 177 (3d ed. 1994). The courts need only reject an agency’s

factual findings when, considering the record as a whole, a reasonable mind would

necessarily come to a different conclusion. 5 Jacob A. Stein, Administrative Law

§ 51.02, at 51-61 (1992).

The substantial and material evidence standard in Tenn. Code Ann. § 4-5-

322(h)(5) still requires a searching and careful inquiry into the record and the

basis for the administrative decision. Sanifill of Tennessee, Inc. v. Tennessee Solid

Waste Disposal Control Bd., 907 S.W.2d at 810; Wayne County v. Solid Waste

Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988). This is

especially true in forfeiture proceedings because the facts must fall within both the

spirit and the letter of the law before a person can be deprived of his or her

property. See Biggs v. State, 207 Tenn. 603, 608, 341 S.W.2d 737, 740 (1960);

Hays v. Montague, 860 S.W.2d 403, 406 (Tenn. Ct. App. 1993).

B.

The commissioner determined that Mr. Jones failed to prove that he owned

the money seized at 2491 Haischi Street. The commissioner also found that Mr.

Jones was not a resident of the house. A claimant, however, is not required to

prove residence but rather to prove an innocent interest in the seized property.

See Tenn. Code Ann. § 53-11-201(f). Thus, a conclusion that Mr. Jones did not

reside in the house does not, by itself, defeat Mr. Jones’s claim, but it could tend

to disprove Mr. Jones’s claim that he owned the money found in the house.

Mr. Jones’s description of how the money was packaged differed from the

testimony of the officers who seized the money. He testified that he placed loose

money in the hole behind the entertainment center and that very little of the money

was packaged in sandwich bags. He also testified that the money was wrapped in

$1,000 bundles. The officers testified that all the money found behind the

entertainment center was separately wrapped in sandwich bags and that each bag

contained a $2,000 roll of bills. They also testified that all the sandwich bags full

of money were contained in a paper grocery sack. The omissions and

inconsistencies in Mr. Jones’s testimony concerning the money provided the

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commissioner with an appropriate basis to find that Mr. Jones had not proved that

the money was his.

Mr. Jones’s claim is also undermined by his sketchy proof concerning how

he was able to accumulate $45,000 and the inconclusive testimony of his spending

and living habits. He testified that the money represented his life savings and that

he had obtain the money through full-time work, moonlighting, and gambling. He

also testified that he had stopped using banks during his divorce. The only

documented proof of Mr. Jones’s income was a 1989 W-2 form showing that he

had earned $18,434 that year.

Mr. Jones also claimed that he paid his child support through a payroll

deduction. However, the available records indicated that he had made only

thirteen child support payments between 1978 and 1988 and that his child support

was $1,709 in arrears. While his former girlfriend and his first cousin testified

that Mr. Jones loaned them money, neither of them knew where he got the money,

how much money he had, or where he kept his money. Mr. Jones asserted that Mr.

Brown was the only other person who knew about his money and its hiding place,

but Mr. Brown told the officers who found the money that he did not know who

it belonged to. Mr. Jones’s inability to describe the money accurately and to prove

that he had the means to accumulate approximately $45,000 support the

commissioner’s decision that Mr. Jones had not proved that the seized money was

his. After an examination of the entire record, we cannot conclude that a

reasonable mind would necessarily come to a different conclusion.

We need not determine in this case whether the record contains substantial

and material proof that the seized money was the proceeds of illegal drug

trafficking. Tenn. Code Ann. § 53-11-201(f) does not permit the commissioner

to grant a claim for seized property until the claimant proves an innocent interest

in the seized property. Mr. Jones did not substantiate his claim that he owned the

seized money. In the absence of any other valid claim of ownership, the money

may be summarily forfeited to the seizing agency without the necessity of

presenting proof that it was the proceeds of illegal drug trafficking.

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VII.

We affirm the judgment of the trial court affirming the commissioner’s

order that the $45,445 in currency seized at 2491 Haischi Street on May 26, 1989

should be forfeited in accordance with Tenn. Code Ann. § 53-11-451(a)(6)(A).

We also remand the case for whatever further proceedings may be required and

tax the costs of this appeal to Freddie Lee Jones and his surety for which

execution, if necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

HENRY F. TODD, P.J., M.S.

________________________________

SAMUEL L. LEWIS, JUDGE

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