Kwasnik v. Maine Dep't of Health and Human Svs.

• Court: Superior Court of Maine
• Decided: March 20, 2012
• Docket: CUMap-11-011
• Status: Unpublished

Opinion

STATE OF MAINE SUPERJOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: AP-11-0yt i cJ AvJ- C \).._/Y)- 2 J .!~/ 2()/ 2.-.

MAREK A. KWASNIK,

Petitioner,

V.

MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES and BANK OF AMERICA

Respondents

RULE SOC DECISION AND ORDER

Before the comi is a Rule SOC petition filed by Marek A. Kwasnik seeking review of the

Maine Department of Health and Human Services enforcement of aNew Jersey child supp01i

order by and through an Order to Withhold and Deliver, issued to Bank of America. Also before

the comi are the Maine Department of Health and Human Services motions to drop or dismiss

claims against Bank of America as a pmiy m1d to exclude the additional evidence submitted by

the petitioner.

Background

Marek A. Kwasnik (the "Petitioner") is subject to a child support order, issued by the

Superior Court ofNew Jersey on April10, 2002, requiring him to pay $228.00 per week to Ewa

Hagar (fonnerly Ewa Skwarczynska) to support their child Robert Kwas. (R. D-2.) The

Supreme Judicial Court of Maine has held that this order is entitled to full faith and credit and is

enforceable by the Maine Department of Health and Human Services ("DHHS"). Kwasnik v.

DHHS, 2006 ME 27, ~ 1, 893 A.2d 610 (per curiam), cert. denied, 549 U.S. 955 (2006).

1 DHHS had previously issued a "notice of debt," on June 16, 2001, stating that unpaid

child support had accrued in the amount of$2,978.00 and was increasing weekly. (R. D-3.) As

of January 18,2011, the Petitioner owed $93,405.01. (R. D-4.) On December 3, 2010, DHHS

issued an Order to Withhold and Deliver to Bank of America, pursuant to 19-A M.R.S. § 2358.

(R. D-1.) That order directed Bank of America to immediately withhold all property up to the

amount of the total debt, other than earnings, and send that prope1iy to DHHS within 30 days.

(R. D-1, 3-4.) Banl<: of America complied with the order by withholding the contents ofthe

petitioner's bank account and the contents of his safe deposit box, including a CD, a third-

person's will, and an antique silver coin. (R. C-2, C-3; Transcript at 5, 11; Resp. Br. 3 n.3.)

Bank of America then notified the Petitioner of the seizure on December 13, 2010. (R. C-3.)

The Petitioner requested an administrative hearing on the Order to Withhold and Deliver,

stating that his reasons for appeal were that the seizure of his safe-deposit box and bank account

violated the Fomih Amendment. (R. H0-2.) A hearing was held in Portland, Maine on January

19, 2011 1 in front of Hearing Officer Miranda Benedict. (R. Bat 1). The Petitioner appeared on

his own behalf and Support Enforcement Agency Tracy Vierra appeared on behalf ofDHHS.

(R. Bat 1). Ewa Hagar also appeared on her own behalf via telephone. (R. Bat 1-2.) Hearing

Officer Benedict issued a Decision After Hearing on February 17, 2011, stating that her review is

limited to the issues listed in chapter 12, section 7(H) ofthe Maine Child Support Enforcement

Manual and that, because DHHS followed the procedure for executing an order to withhold and

deliver, its actions were lawful. (R. A at 3.) The decision specifically noted that it made no

judgment as to the validity of 19-A M.R.S. § 2358.

1 DHHS sent a "Notice of Hearing," dated December 28, 20 l 0, to the Petitioner stating that the hearing is to decide ''[if] the amount of your child support order should be changed." (R. H0-1.) However, the parties appear to all have treated this hearing as an appeal of the Order to Withhold and Deliver.

2 The contents of the safe-deposit box were not delivered or disclosed to DHHS until after

the January 19, 2011 administrative hearing. (Pet. Br. 3-4, 37; Resp. Br. 3, n.3; R. B 5.) DHHS

then returned to the Petitioner the CD and the will but retained possession of the antique coin.

(Resp. Br. 3, n.3.)

The Petitioner filed this petition for review ("Petition") on March 18, 2011. On the bases

of the Fourth Amendment and Due Process Clause to the United States Constitution and Article

I, sections 5 and 6-A ofthe Maine Constitution, he seeks review ofDHHS's denial of (I) his

request that DHHS "abandon its policy(ies)- in child supp01i enforcement actions" by returning

the antique coin seized2 and (2) his request that DHHS abandon its policy of issuing liens against

safe-deposit boxes of persons owing child support without probable cause. (Pet.~~ 4-6.)

Petitioner also seeks review of the constitutionality of "pe1iaining statutory scheme as currently

expressed in Title 19-A M.R.S. §§ 2203, 2357, etc.," an injunction "against the department [sic]

unconstitutional policies of overextended unconstitutional control," and an order directing

DHHS to :return the antique coin. (Pet.~ 7.)

On June 13, 2011, DHHS filed a brief in response to the Petition and motions to drop

Bank of America as a pmiy and to exclude additional evidence submitted by the Petitioner with

his brief. The Petitioner filed his reply and opposition to the motions on July 5, 2011. Oral

argument was held on the appeal and pending motions on November 30, 2011.

2 The couti reads this request to be referring to the Petitioner's argument that the April 2002 New Jersey child suppoti order is unconstitutional and unenforceable. As noted above, the Petitioner has previously raised this issue before the Maine courts and has received a ruling from the Law Court finding that the New Jersey order is entitled to the full faith and credit of Maine law and may be enforced by DHHS. 2006 ME 27, ~ 1, 893 A.2d 610. Because the validity of the New Jersey order is not properly before this court, this order will not consider arguments arising from the validity of that order.

3 Discussion

I. Motion to Drop Bank of America as a Pariy

DHHS has moved to drop Bank of America from this action pursuant to M.R. Civ. P. 21

or, alternatively, to dismiss any pending claim against Bank of America pursuant to M.R. Civ. P.

12(b )( 6). It argues that there is no cause of action asserted against Bank of America and because

this action was brought pursuant to M.R. Civ. P. 80C, there is no relief available against Bank of

America. The Petitioner argues that Bank of America is a necessary party because final relief

cannot be granted without joinder of both parties and that for collateral estoppel and judicial

economy purposes both parties should be parties to a single action.

The Petitioner does not state why complete relief cmmot be granted without Bank of

America as a party and because the Petitioner does not assert any independent claims against

Bank of America, the-comi determines that the parties have been misjoined and dismisses the

petition as against Bank of America.

II. Additional Evidence

DHHS also moves to exclude the additional evidence submitted by the Petitioner along

with his brief in support of the Petition. M.R. Civ. P. 80C requires the agency to file a complete

record of the proceedings under review and further permits a petitioner to require the comi to

take additional evidence, provided that the petitioner file a motion to that effect within ten days

of the agency filing the record. M.R. Civ. P. 80C(e)-(f). A failure to make this motion

constitutes a waiver of any right to take additional evidence so that the petitioner is bound by the

record before the agency, even if the issue on appeal was not within the agency's jurisdiction.

N!athieu v. Comm 'r of Human Servs, 562 A.2d 686, 689 (Me. 1989). The court may order the

4 taking of additional evidence if it finds that additional evidence is needed to review the petition.

5 M.R.S. § 11006(1)(B).

The Petitioner did not present the evidence attached in his Appendix to the agency at the

time ofthe hearing despite being given the opportunity to present additional evidence. (R. B at

9.) The Petitioner has not moved this court to take additional evidence as required by the Maine

Rules of Civil Procedure. Furthermore, the court finds that the additional evidence offered by

the defendant pertains to the validity of the New Jersey suppo1i order and to other arguments that

were not raised by the petitioner before the agency. Nothing in the Appendix is related to the

constitutional arguments made by the Petitioner. 3 Therefore, this evidence is not necessary for

the court to review the Petition and DHHS' s motion to exclude the additional evidence is

granted.

III. M.R. Civ. P. 80C:

a. Standard of Review

The court's power to review a decision of a state agency is confined to an examination of

"whether the [agency J conectly applied the law and whethd its fact findings are supported by

any competent evidence." McPherson Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998

ME 177, ,-r 6, 714 A.2d 818. The court may only reverse or modify an administrative agency's

decision if it is

1) In violation of constitutional or statutory provisions; 2) In excess of the statutory authority of the agency; 3) Made upon unlawful procedure; 4) Affected by bias or error of law; 5) Unsupported by substantial evidence on the whole record; or 6) Arbitrary or capricious or characterized by abuse of discretion.

5 M.R.S. §§ 11007(4)(C) (2010).

3 The Appendix does contain a copy of the Law Collli's 2006 decision, cited above. Although the cou1i references this decision in this order, it is not evidence and not required to be in the record.

5 Additionally, the court cmmot substitute its judgment for that of the agency on questions

of fact; that is, findings of fact must be affirmed unless clearly erroneous. 5 M.R.S. § 11 007(3)

(2011); Green v. Comm'r of the Dep't of Mental Health, Mental Retardation & Substance Abuse

Servs., 2001 ME 86, ~ 9, 776 A.2d 612. "[U]nless the record before the [agency] compels a

contrary result," the court will uphold the agency decision. McPherson, 1998 ME 177, ~ 6, 714

A.2d 818.

In an appeal from a DHHS order to withhold and deliver, issued pursuant to 19-A M.R.S.

§ 2358, the hearing officer may only consider four issues: (1) whether the applicable

requirements of 19-A M.R.S. § 2358 have been met; (2) whether the debt set forth in the order is

correct; (3) whether the parent is receiving public assistance for the benefit of any children; and

(4) whether the property is exempt from attachment. 10-144 C.M.R. ch. 351 § 12.7(H) (2008)

(DHHS Child Support Enforcement Manual chapter 12, § 7(H)). All objections to the

administrative proceeding must be raised before the agency in order to preserve those issues for

appeal, even when those issues implicate constitutional questions. New England White·water

Ctr., Inc. v. Dep 't of Inland Fisheries & Wildlife, 550 A.2d 56, 58 (Me. 1988).

b. Constitutionality ofthe Order to Withhold and Deliver

The court understands the Petition to ask the court to determine the constitutionality of

4 DHHS's actions taken pursuant to 19-A M.R.S. §§ 2357 and 2358, to enjoin DHHS from

4 The Petition actually asks for a review ofthe constitutionality ofthe "pe11aining statutory scheme as expressed in Title 19-A M.R.S. §§ 2203; 2357, etc." (Pet.~ 7(a).) Section 2203 is inapplicable to an order to withhold and deliver; this section authorizes an order to seize and sell to execute a support lien created by § 2357. Section 2357 may be relevant because this section creates a lien in favor of DHHS against all non-exempt prope11y against which DHHS was authorized to issue the order to withhold and deliver. The statutory section giving DHHS authority to issue an order to withhold and deliver is 19-A M.R.S. § 2258. Therefore, the court will consider sections 2357 and 2358 to be the statutory scheme. Also, although the Petition seems to make a facial challenge to the statutory scheme, both parties have addressed their arguments to the constitutionality of the statutes as applied in this case to effect a warrantless search and seizure ofthe Petitioner's safe-deposit box.

6 further enforcing the child support obligation against the Petitioner, 5 and, if the statutory scheme

is found to be unconstitutional, to order the return of the property held by DHHS. (Pet.~ 7.) The

Petitioner did properly raise the constitutional question at the administrative hearing, preserving

the issue for appeal. (R. B at 8.) The court notes that DHHS was not in a position to make a

decision on the constitutionality of these statutes because the authority of the hearing officer is

limited to four issues described above. The Petitioner does not argue that DHHS failed to follow

the statutory provisions authorizing issuance of the Order to Withhold and Deliver, that the debt 6 set forth in the order is incorrect, that he is on public assistance, or that the property withheld is

exempt. Therefore, the court will only address the constitutionality of the search and seizure of a

safe-deposit box, pursuant to the statute authorizing DHHS to issue an order to withhold and

deliver.

The Petitioner argues that agents of the executive branch of government may only enter

private homes for the search of illegal items after a court has issued a warrant, based on probable

cause. (Pet. Br. 36.) He further argues that because he had an expectation ofprivacy in.the safe-

deposit box, similar to that in his home, (Pet. Br. 36), DHHS 's actions violated the Fourth

Amendment of the United States Constitution and Article I, section 5 of the Maine Constitution

because it acted without probable cause (because there was no information as to the contents of

the safe-deposit box) and without a warrant (Pet. Br. 33, 3 7).

5 The language of the Petition is: "Ordering injunction against the department [sic] unconstitutional policies of overextended unconstitutional control. ... " The court interprets this language to be seeking an injunction against DHHS's future enforcement actions against the Petitioner. The Law Cout1 has already determined that DHHS has the right to enforce the New Jersey support order and this court cannot re- address this issue. 6 In his brief the Petitioner asserts that he was on public assistance at the time the Order to Withhold and Deliver was issued. (Pet. Br. 35, 37.) The Petitioner has waived this argument because it was not raised before the agency below. (See R. B; H0-2.) Under the doctrine of exhaustion of administrative remedies the Petitioner cannot raise this issue for the first time on appeal. New England Whitewater Ctr., Inc. v. Dep 't of Inland Fisheries & Wildlife, 550 A.2d 56, 59-60 (Me. 1988). Additionally, the Petition does not asseti this issue and the Petition must state the grounds upon which relief is sought. 5 M.R.S. § 11 002(2).

7 DHHS argues that the wan-ant requirement is generally limited to the context of criminal

investigations and that the "reasonableness" requirement of the Fourth Amendment is generally

satisfied by an adequate opportunity for a pre-deprivation or prompt post-deprivation hearing.

(Resp. Br. 6-7.) DHHS acknowledges that the Fourth Amendment protects against the

unreasonable search and seizure of the contents of safe-deposit boxes because of the reasonable

expectation of privacy but argues that property contained therein is subject to seizure to satisfy a

money judgment, suggesting, therefore, that the Fourth Amendment does not apply. (Resp. Br.

8-9.)

The applicable portions of the United States Constitution and the Maine Constitution

protect people "against unreasonable searches and seizures" and also require that "no Warrants

shall issue, but upon probable cause" and those wan-ants must be supported by oath or

affirmation and describe with pmiicularity the place to be searched m1d the persons or things to

be seized. U.S. Const. amend IV; Me. Const. art. I,§ 5. The Fourth Amendment ban against

unreasonable search and seizure protects people, not places. Katz v. US, 389 U.S. 347, 351

(1967). In that protection, it only protects a person's interests when there is a reasonable

expectation of privacy. Kyllo v. US, 533 U.S. 27, 33 (2001). An expectation of privacy in the

contents of a safe-deposit box, implicating the protection of the Fourth Amendment, has been

recognized. US v. Thomas, 878 F.2d 383 (6th Cir. 1989) (citing Katz v. US, 389 U.S. 347

(1967)).

The plain text of the Fourth Amendment does not link its two requirements. That is,

nothing "in the text suggest[ s] that warrants are required for every search or seizure, nor is the

existence of a wm-rant a sine qua non for a reasonable search or seizure." Freeman v. City of

Dallas, 242 F.3d 642, 648 (5th Cir. 2001). It is clear that a warrant, based on probable cause, is

8 required when conducting a search or seizure in the criminal context, unless one of the well-

established exceptions applies. Arizona v. Gant, 556 U.S. 332, 338 (2009). Given that the

Fourth Amendment is equally applicable to the civil context as it is in the criminal context,

Soldal v. Cook County, fl., 506 U.S. 56, 67 (1992), it is logical that the warrant and probable

cause requirements also apply to searches and seizures in the civil context, absent an exception.

While "reasonableness" is the "ultimate" standard for whether or not a search or seizure

is deemed constitutional or unconstitutional, the "warrant procedure is designed to guarantee that

a decision to search private property is justified by a reasonable govenunental interest." Camara

v. J\1unicipal Court of the City & County of San Francisco, 387 U.S. 523, 539 (1967). When

courts determine reasonableness they must weigh the govermnent's need to conduct the search

against the invasion of privacy that the search involves. Jd. at 536-37.

DHHS has argued that in the context of a civil or administrative proceeding to seize

property to satisfy a debt, the agency's determination of "reasonableness" is the only

requirement. DHHS cites to the so-called "special needs" cases in which the Supreme Comi has

held that in sih1ations "beyond the normal need for law enforcement, mak[ing] the warrant and

probable-cause requirement impracticable," the court can substirute its own balancing of interests

for that conceived by the Framers of the Constitution ("the Fourth Amendment Warrant and

Probable-Cause Clause"). NJ v. TL.O., 469 U.S. 325,351 (1985)(Blackmun, J. concurring). 7

DHHS argues, applying the "special needs" doctrine, that there is also no warrant requirement in

7 These cases involve searches of students by school administration, drug testing after industrial accidents and prior to federal employment, and searches of areas where there is a reduced expectation of privacy, such as, heavily regulated industries, probationers, and public employees. See e.g Bd. of Education v. Earls, 536 U.S. 822 (2002); Skinner v. Railway Labor Executives' Ass 'n, 489 U.S. 602 (1989); Griffin v. Wisconsin, 483 U.S. 868 (1987); US. v. Burger, 482 U.S. 691 (1987); New Jersey v. T.L.O., 469 U.S. 325 ( 1985).

9 the context of civil or administrative proceedings to seize property to satisfy a debt. (Resp. Br.

7.) The cases that DHHS cites for this argument are inapposite.

First, DHHS cites G.M Leasing Corp. v. US, 429 U.S. 338 (1977), as "upholding the

IRS's warrantless seizure of automobiles to satisfy income tax liability." (Resp. Br. 7.) While

this is a correct statement of part of the holding in this case, the "seizures of the automobiles in

this case took place on public streets, parking lots, or other open places, and did not involve any

invasion of privacy." GM Leasing, 429 U.S. at 351. The Supreme Court in this case also upheld

the Tenth Circuit Court of Appeals' determination that the warrantless search of the petitioner's

office for unidentified property and seizure of books and records from the office did violate the

Fourth Amendment because the petitioner had a reasonable expectation of privacy in the

property and no exception to the warrant requirement applied. ld. at 358. The United States

argued that the intrusion was justified because the petitioner's assets were subject to seizure to

satisfy a tax assessment. The court responded, "this involves nothing more than the normal

enforcement of the tax laws," meaning that this was not a "special needs" case where the warrant

requirement could be excused and the comi substitute its own balancing of the public and private

interests. !d. at 354. Even statutory language empowering the IRS to use "distraint and seizure

by any means" was found to not authorize warrantless intrusions into privacy. ld. at 356-57.

At oral argument, DHHS stated that the holding of the court, finding the search and

seizure of the contents of the office was a violation of the Fourth Amendment, was based on a

lack of reasonableness and not because of a failure to obtain a warrant. However, it is clear that

the Court found the search unreasonable because no warrant was obtained. ld. at 358 ("The

intrusion into petitioner's office is therefore governed by the normal Fourth Amendment rule that

except in certain carefully defined classes of cases [i.e. the "special needs" cases], a search of

10 private property without proper consent is 'umeasonable' unless it has been authorized by a valid

search warrant." (internal quotation marks removed)).

DHHS also cites footnote eighteen of this case to argue that "reasonableness" can be

satisfied by an adequate opportunity for either a pre-deprivation or prompt post-deprivation

hearing. (Resp. Br. 7-8.) The cases cited within this footnote all concem the "[g]ovemment's

right to collect taxes by summary administrative proceedings"; that is, the right to attach or seize

prope1iy before liability has been adjudicated. See Commissioner v. Shapiro, 424 U.S. 614

(1976); Phillips v. Commissioner, 283 U.S. 589 (1931). When the Court states, "[t]hese cases, of

course, center upon the Due Process Clause rather than the Fourth Amendment, but the

constitutional analysis is similar and yields a like result," it refers back to the text of the opinion

subject to the footnote: that the warrantless seizure of the cars without an invasion of privacy did

not violate the Fourth Amendment. G.M Leasing Corp., 429 U.S. at 352. This footnote only

states that when the requirements of the Due Process Clause have been met regarding a seizure,

and no privacy interest is implicated, a warrantless seizure is not unconstitutional.

Second, DHHS cites Bull v. US., 295 U.S. 247, 260 (1935), as "upholding administrative

officials' warrantless seizure of debtor's property to satisfy an unpaid tax assessment." (Resp.

Br. 7.) The Bull case was about the proper classification of income to a partnership accrued after

the death of a member of the partnership. The Comi provided an explication of the "system of

enforcing the Government's claims for taxes" as background before engaging the question as to

how the taxpayer can seek redress for overpayment. Bull, 295 U.S. at 259. In that explication

the Comi said: "The assessment is given the force of a judgment, and if the amount assessed is

not paid when due, administrative officials may seize the debtor's prope1iy to satisfy the debt."

!d. at 260. Nowhere in this decision does the Comi suggest that this seizure may occur without a

11 warrant when the property is protected by a privacy interest of the debtor, even if it is subject to

satisfy the judgment.

Third, DHHS cites Cinea v. Certo, 84 F.3d 117, 124 (3rd Cir. 1996), as "rejecting a

Fourth Amendment challenge to a constable's wmTantless entry into residences of evicted

tenants and seizure of personal prope1iy therein pursuant to writs of execution issued on money

judgments for unpaid rent." (Resp. Br. 7.) The parenthetical provided by DHHS in and of itself

distinguishes Cinea from this case. In Cinea the wanantless entry was made pursuant to a comi

issued judgment authorizing a search and seizure of property. This court order acted in the place

of a warrant but safeguarded the same principles -review of the evidence by a neutral entity

before approving a search or seizure. Furthermore, the plaintiffs cannot be said to have a privacy

interest in the apmiments because they had been evicted prior to the entry.

Lastly, DHHS argues that, although there is an expectation of privacy in the contents of a

safe-deposit box, placing property in a safe-deposit box does not change its nature. (Resp. Br. 8-

9.) If the property is subject to attachment outside of the safe-deposit box, it is no less subject to

attaclunent when put into the box. US. v. First Nat 'l City Bank & Chemical Bank NY Trust Co.,

388 F. Supp. 1044, 1046 (1974), aff'd 568 F.2d 853 (2d Cir. 1977); Carples v. Cumberland Coal

& Iron Co., 148 N.E. 185, 187 (N.Y. 1925). The court does not disagree with this statement.

However, placing the property in a safe-deposit box does put it beyond the authority of the

government to search the box and seize the property without a determination by a detached

magistrate that sufficient probable cause for a search exists. US. v. First Nat 'l City Bank, 568

F.2d 853, 858 (2d Cir. 1977); cf G.M Leasing Corp. v. US., 429 U.S. 338, 352-54 (1977)

(holding that the federal govermnent's power to collect taxes does not authorize the wanantless

seizure of property situated in a location where access is not otherwise available to the seizing

12 officer). The issue before the First National City Bank court was whether the debtor had the

right to participate in the determination of whether his safe-deposit box could be searched, not

whether the box could be searched without a warrant or comi order. The bank had refused to

comply with a notice of levy and seizure served upon it by the Internal Revenue Service. The

federal district court issued an order to the bank compelling it to open the safe-deposit boxes for

the government to seize any property subject to the levy. The Second Circuit concisely stated:

"The 'warrant preference rule' requires no more than that a detached magistrate determine

whether there is sufficient probable cause for the search. That is precisely what was done here."

568 F.2d at 858. Although the comis in this case recognized that property subject to satisfy a

levy does not lose that status when it is placed in a safe-deposit box, they held that the

government's right to search the safe-deposit box in order to identify and seize property subject

to the levy is constrained by the warrant requirement or court order. 8

The cases discussed above compel this court to conclude that the Fomih Amendment

requires the government to obtain a wanant when entering a place where an individual has a

privacy interest, even in a civil case. That is, it is not the purpose of the entry that raises the

protections of the Fourth Amendment but the entry itself. Conner v. Santa Ana, 897 F.2d 1487,

1490-91 (9th Cir. 1990); see also Freeman v. City of Dallas, 242 F.3d 642, 657 (5th Cir. 2001)

(Dennis, J. dissenting); Redwood v. Lierman, 772 N.E.2d 803, 813 (Ill. App. Ct. 2002). Still, a

search or seizure is only "reasonable" when the wanant is based on probable cause to believe

that the thing being sought will be discovered. Camara, 387 U.S. at 535). However, "probable

cause" in the civil context does not require the same evidentiary showing as in the criminal

8 The other case the respondent cites, Carples v. Cumberland Coal and Iron Co., deals with a similar factual scenario where the bank has refused to open a safe-deposit box despite being served with a warrant of attachment. 148 N.E. 185 (N.Y. 1925). In that case the court refused to find that the appellant had a privacy interest in the safe-deposit box. !d. at 187. Regardless ofthat finding, the search was still conducted pursuant to a couii order.

13 context. The Supreme Court has held that when a valid public interest justifies the contemplated

intrusion then there is probable cause to issue a search warrant. Id at 539. This does not

compromise the probable cause standard required in the criminal context, but rather reflects the

lesser weight of private interest when the risk of criminal prosecution is reduced. Id

The parties have focused on the statute as applied in this case and DHHS does not

directly address the constitutionality of its statutory scheme for enforcement of child support

obligations. In effect, the process for enforcing a child support obligation is akin to the process

for enforcing any other kind of judgment debt. Compare 14 M.R.S. §§ 3120-3138 (2011) vvith

19-A M.R.S. §§ 2101-2675 (20 11 ). The authority to pmsue the judgment is given to the agency

and the agency has several mechanisms through which it can attain assets to satisfy the

judgment. Section 2357 establishes that thirty (30) days after a decision finding the parent liable

for support is sent to the parent or twenty-one (21) days after the parent receives a "notice of

debt," that debt amount becomes a judgment and a lien against all property of the parent. 19-A

M.R.S. § 2357(1). The statutory scheme then allows DHHS several mechanisms to enforce that

judgment. The lien may be enforced through an order to seize and sell, 19-A M.R.S. § 2357(4),

the commissioner may make an administrative seizure and sale of the property, 19-A M.R.S. §

2363, and DHHS may issue an order to withhold and deliver to third parties holding prope1iy

belonging to the parent, 19-A M.R.S § 2358. These mechanisms are very similar to the devices

available to enforce any other type of civil lien as described in Title 14, Chapter 502. The lien

simply acts to put others on notice that the responsible parent does not have clear title to his or

her property because there is an outstanding judgment. The lien itself does not implicate the

protections of the Fourth Amendment.

14 The order to withhold and deliver is the mechanism used to access and obtain property

belonging to a parent held by a third pmiy. Although the section uses the word "property" rather

than "money" it appears to be used most often to obtain the contents of bank accounts or wages

due and owing. (SeeR. D-1, ,-r 3 (listing examples of"property").) Because a third party holds

the property, the responsible parent is unlikely to be able to assert a privacy interest. For

example, in this case, DHHS ordered Barile of America to withhold and deliver any money held

in a bank account by the responsible parent. There is no privacy interest in the money held in a

bank account. Peters v. Sjoholm, 604 P.2d 527, 529 (Wash. App. 1979); see also US v. Miller,

425 U.S. 435 (1976) (holding that a defendant did not have a reasonable expectation of privacy

in checks and deposit slips held by the banlc). Therefore, Bank of America's seizure of the

Petitioner's $1.00 account did not require DHHS to obtain a warrant, as it was property similarly

situated to the automobiles in GM Leasing (i.e. subject to a levy and able to be seized without

interfering with a privacy interest).

A safe-deposit box creates a different factual scenario. Although held by a third party,

the parent maintains an expectation of privacy in the safe-deposit box because the bank or

security company does not have access to the contents of the box. Entry into the box without

authorization through a warrant or court order violates the box owner's rights against

unreasonable sem·ch and seizure. Where DHHS did not have knowledge of the contents ofthe

safe-deposit box and, in essence, conducted a search for unidentified non-exempt property, it

cannot be said that the warrantless search was reasonable.

As described above, searches for the purpose of identifying and seizing prope1iy subject

to the execution of a lien in a civil context does not qualify as a "special needs" case. The

special needs cases are distinct from this case with regard to the severity of need for spontaneous

15 action by law enforcement. 9 Furthermore, although the respondent cites to cases stating that

property cannot be secreted away by putting it in a safe-deposit box, those cases recognize the

need for a warrant or court order before the search is conducted.

The court finds that the statutory scheme through which DHHS issues orders to withhold

and deliver contains no constitutional infirmity. The sections of statute that the Petitioner sought

review of (2357 and 2358) provide a legitimate process for executing a child support judgment.

However, in this case, DHHS violated the Petitioner's Fourth Amendment rights when it

searched the Petitioner's safe-deposit box without obtaining a warrant or court order to do so.

The comi does not find any constitutional problem with ordering a third party to withhold

property from the responsible parent when there is a valid lien against the parent's property.

However, once DHHS was notified that the third party held a safe-deposit box for the parent,

DHHS should have come to court seeking an order to search that safe-deposit box for non-

exempt property that is subject to seizure to satisfy the judgment. 10

DHHS claims that the administrative hearing, to which the responsible parent has a right

after receiving notice of the order to withhold and deliver, acts to review the reasonableness of

the search and seizure. Although the safe-deposit box was not opened until after this hearing

(meaning that no search had yet occurred), the hearing officer is constrained by the agency's own

rules as to what issues may be addressed at the hearing. The comi cannot comprehend how a

review by an administrative hearing officer, with no authority to consider constitutional

9 DHHS has not demonstrated a need for rapid action in this case. In fact, DHHS could not even tell the court if it was actually aware that the Petitioner kept a safe-deposit box that may contain prope11y subject to levy when it issued the subject order to withhold and deliver. 10 Alternatively, DHHS could wait-out the time period for a parent's appeal of an order to withhold and deliver. Because the procedure established in M.R. Civ. P. 80C is the only mechanism for review of an agency dec is ion, if the parent does not appeal the order, or does not raise the constitutional issue before the administrative hearing officer to preserve the issue for appeal, the parent will have effectively consented to the search.

16 challenges to DHHS's actions, is in any way an evaluation ofthe reasonableness ofDHHS's

actions. Additionally, the administrative hearing officer is not a neutral party. Camera, 387 U.S.

at 529 (citing Johnson v. US., 333 U.S. 10, 14 (1948)) ("When the right of privacy must

reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a

policeman or government enforcement agent.") DHHS also suggested at oral argument that this

court, in its review of the agency's action on appeal under M.R. Civ. P. 80C, is where the

reasonableness of the agency's actions should be determined. However, reasonableness is to be

determined before the search occurs, not afterward based on the products of the search.

c. Remedy

The Petitioner seeks (1) review ofthe statutory scheme authorizing DHHS's actions, (2)

an injunction against further enforcement actions against the Petitioner, and (3) return of the coin

seized from his safe-deposit box. As noted above, the cou1i has not considered the second issue

because the Law Comi has decisively ruled on this question and the court has determined that the

statutory scheme authorizing the order to withhold and deliver is constitutional. The only

remaining relief sought is return of the coin.

Courts have broad equitable powers to create appropriate remedies for constitutional

violations. KindHeartsfor Charitable Humanitarian Dev., Inc. v. Geithner, 710 F. Supp. 2d

637, 648 (N.D. Ohio 2010). In the criminal context, the typical remedy for an unlawful search is

suppression of any inculpatory evidence obtained in the search. Davis v. United States, 131 S.

Ct. 2419, 2426 (20 11 ). This remedy is not itself a constitutional right but, rather, a judicially

created remedy that occasionally acts as a "windfall" to a criminal defendant solely for the

purpose of deterring future unconstitutional conduct. Jd at 2433-34. Therefore, if the

government had acted in good faith but still violated an individual's constitutional rights, the

17 exclusionary rule may be inappropriate as a remedy. !d.

Here, DHHS is not attempting to use the seized coin to prosecute Mr. Kwasnik; it is

attempting to satisfy a small portion of his debt with the value of the coin. While the

exclusionary rule itself is inapplicable to this civil context, the concept of a deterrent remedy that

may act as a windfall to an individual is fitting. In this case there was a significant government

interest in protecting the health and welfare of children, the Petitioner's rights had already been

adjudicated, and there was reason to suspect that the Petitioner had assets subject to levy in the

box. These facts lead the comi to conclude that there was probable cause to search the safe-

deposit box on which a warrant could have been based. Furthermore, there is no indication in

the record on before the court, or at oral argument, that DHHS had a malicious motivation in

violating the Petitioner's rights by searching the safe-deposit box without first obtaining a

warrant. Rather, this violation appears to have been based on a lack of experience. 11 Although

Mr. Kwasnik's rights were violated, the property seized by DHHS is subject to levy to satisfy his

child support obligations. 12 Now that the existence of this coin is known and return of the coin is

unlikely to have a detenent effect on DHHS, the comi concludes that it would be inappropriate

to return the coin to Mr. Kwasnik.

11 The Hearing Officer states that she had never encountered and Order to Withhold and Deliver involving a safe-deposit box. (R. Bat 5.) 12 Even if it could be argued that the coin is exempt propetty, Mr. Kwasnik failed to raise this issue in the administrative hearing and has thus waived the issue.

18 The entry is:

The Petitioner's appeal is SUSTAINED but the Respondent is entitled to retain the

property seized from the Petitioner's safe-deposit box. The Respondent's Motion to Dismiss

Claims against Bank of America and Motion to Exclude Additional Evidence are GRANTED.

The Clerk is directed to incorporate this Order into the docket by reference pursuant to

M.R. Civ. P. 79(a).

DATE: o . Wheeler ustice, Superior Court

19 Petitioner-Marek A. Kwasnik (Pro Se)

Respondent-Carlos Diaz AAG (DHHS)