Myers v. Real Property at 1518 Holmes Street

Supreme Court of South Carolina

Myers v. Real Property at 1518 Holmes Street

411 S.E.2d 209, 306 S.C. 232, 1991 S.C. LEXIS 217

CourtSupreme Court of South Carolina

DecidedOctober 14, 1991

Docket23493

StatusPublished

Cited by5 cases

This text of 411 S.E.2d 209 (Myers v. Real Property at 1518 Holmes Street) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Myers v. Real Property at 1518 Holmes Street, 411 S.E.2d 209, 306 S.C. 232, 1991 S.C. LEXIS 217 (S.C. 1991).

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Opinions

Chandler, Justice:

[234]*234This appeal involves the constitutionality of South Carolina Civil Forfeiture Statute, S.C. Code Ann. § 44-53-520,¹ et seq. (Cum. Supp. 1990). Circuit Court found no due process violation but held that operation of the statute constitutes a “taking” of property without compensation.

We affirm in part and reverse in part.

FACTS

From November, 1989 until February, 1990, the Lexington County Sheriffs Department conducted an undercover investigation of drug trafficking in an area of West Columbia known as “Happy Town.” As a result of the investigation, “affidavits for seizure” were filed pursuant to S.C. Code Ann. § 44-53-500, alleging that drug trafficking was taking place on real property and residences owned by Respondents. Circuit Court issued ex parte notices and seizure warrants, resulting in confiscation of Respondents’ properties.

Thereafter, Respondents filed motions to quash, alleging that the civil forfeiture statute violates the due process and taking clauses of the South Carolina Constitution.

After a hearing, Circuit Court found no due process violation, but held that the statute, as applied, effects a taking without just compensation.

ISSUES

Does the civil forfeiture statute violate

(A) The Takings Clause?

(B) The Due Process Clause?

[235]*235A. Takings Clause

South Carolina Constitution, Art. I, § 13, provides, in 1 part:

Except as otherwise provided in this Constitution, private property shall not be taken for... public use without just compensation being first made therefor.

This Court has long recognized that the State’s exercise of eminent domain is distinguished from its exercise of the police power. “[J]ust compensation is required in the case of the exercise of eminent domain but not for the loss by the property owner which results from the constitutional exercise of the police power.” S.C. State Highway Dept. v. Wilson, 254 S.C. 360, 365, 175 S.E. (2d) 391, 394 (1970) (Emphasis supplied). See also Richards v. City of Columbia, 227 S.C. 538, 88 S.E. (2d) 683 (1955); Edens v. City of Columbia, 228 S.C. 563, 91 S.E. (2d) 280 (1956).

The United States Supreme Court has recognized that a state, in exercising its police power, may apply forfeiture statutes to property used in violation of state laws. See Van Oster v. Kansas, 272 U.S. 465, 47 S. Ct. 133, 71 L. Ed. 354 (1926). More recently, in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. (2d) 452 (1974), the Court upheld a Puerto Rican forfeiture statute against a takings challenge, stating:

. . . state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable ... (citation omitted)____

Plainly, the Puerto Rican forfeiture statutes further the punitive and deterrent purposes that have been found sufficient to uphold, against constitutional challenge, the application of other forfeiture statutes to the property of innocents.

416 U.S. at 686, 94 S. Ct. at 2093, 40 L. Ed. (2d) at 470. (Emphasis supplied).

We find that forfeiture is directed to the prevention of serious public harm, and is within the legitimate exercise of the police power. Accordingly, here, no taking occurred.²

[236]*236B. Due Process

As an additional sustaining ground, Respondents assert that the seizure violated the Due Process clause of the South Carolina Constitution,³ as no pre-seizure notice was served, nor any opportunity to be heard afforded. We disagree.

In Moore v. Timmerman, 276 S.C. 104, 109, 276 S.E. (2d) 290, 293 (1981) we held:

if all property seized is intended to be subject to forfeiture, then the parties claiming an interest in the property must be afforded the basic due process notice and hearing ... [they] must be given an opportunity to come forward and show, if [they] can, why the res should not be forfeited and disposed of as provided for by law. (Emphasis supplied.)

Implicit in this holding is that notice and hearing must be afforded after the property is seized.

We find no authority that seizure of real property requires pre-seizure notice and hearing. Indeed, the U.S. Supreme Court in Calero-Toledo recognized that seizure for the purpose of forfeiture “presents an ‘extraordinary’ situation in which postponement of notice and hearing until after seizure [does] not deny due process.” 416 U.S. at 680, 94 S. Ct. at 2090, 40 L. Ed. (2d) at 466. Moreover, courts have consistently held that posi-seizure procedures are sufficient. See, e.g., Allen v. Tucker, 715 F. Supp. 266 (E.D. Mo. 1989); U.S. v. 26.075 Acres, 687 F. Supp. 1005 (E.D.N.C. 1988); U.S. v. A Single Family Residence, 803 F. (2d) 625 (11th Cir. 1986). In Allen, the court stated:

A claimant’s contention that his procedural due process rights have been violated without a hearing prior to the taking of his property is untenable when the claimant is afforded the full weight of judicial process in proceedings, such as these presently before the Court, to determine if the claimant’s property was properly forfeited.

[237]*237715 F. Supp. at 268 (citation omitted).

South Carolina requires that, once property is seized, the court issue its rule to show cause to all persons with an interest in the property. S.C. Code Ann. § 44-53-530(1) (Cum. Supp. 1990). Thereafter, the judge must conduct a hearing to determine whether the property is, in fact, subject to forfeiture. Moreover, any “innocent owner may petition for return of the seized property by demonstrating that he did not consent to, or have knowledge of the use of the property.” S.C. Code Ann. § 44-53-586 (Cum. Supp. 1990). Lastly, Rule 65, S.C.R.C.P., authorizes property owners, who can demonstrate irreparable injury, to move for a temporary restraining order or injunction.

We, like the majority of jurisdictions, find these procedures satisfy due process requirements.

CONCLUSION

We reverse so much of the order of the Circuit Court as holds that the forfeiture constituted a taking; we affirm its ruling on due process.

Affirmed in part; reversed in part.

Gregory, C.J., and Harwell and Toal, JJ., concur. Finney, J., concurring in part and dissenting in part.

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Chandler, Justice:

[234]*234This appeal involves the constitutionality of South Carolina Civil Forfeiture Statute, S.C. Code Ann. § 44-53-520,¹ et seq. (Cum. Supp. 1990). Circuit Court found no due process violation but held that operation of the statute constitutes a “taking” of property without compensation.

We affirm in part and reverse in part.

FACTS

From November, 1989 until February, 1990, the Lexington County Sheriffs Department conducted an undercover investigation of drug trafficking in an area of West Columbia known as “Happy Town.” As a result of the investigation, “affidavits for seizure” were filed pursuant to S.C. Code Ann. § 44-53-500, alleging that drug trafficking was taking place on real property and residences owned by Respondents. Circuit Court issued ex parte notices and seizure warrants, resulting in confiscation of Respondents’ properties.

Thereafter, Respondents filed motions to quash, alleging that the civil forfeiture statute violates the due process and taking clauses of the South Carolina Constitution.

After a hearing, Circuit Court found no due process violation, but held that the statute, as applied, effects a taking without just compensation.

ISSUES

Does the civil forfeiture statute violate

(A) The Takings Clause?

(B) The Due Process Clause?

[235]*235A. Takings Clause

South Carolina Constitution, Art. I, § 13, provides, in 1 part:

Except as otherwise provided in this Constitution, private property shall not be taken for... public use without just compensation being first made therefor.

This Court has long recognized that the State’s exercise of eminent domain is distinguished from its exercise of the police power. “[J]ust compensation is required in the case of the exercise of eminent domain but not for the loss by the property owner which results from the constitutional exercise of the police power.” S.C. State Highway Dept. v. Wilson, 254 S.C. 360, 365, 175 S.E. (2d) 391, 394 (1970) (Emphasis supplied). See also Richards v. City of Columbia, 227 S.C. 538, 88 S.E. (2d) 683 (1955); Edens v. City of Columbia, 228 S.C. 563, 91 S.E. (2d) 280 (1956).

The United States Supreme Court has recognized that a state, in exercising its police power, may apply forfeiture statutes to property used in violation of state laws. See Van Oster v. Kansas, 272 U.S. 465, 47 S. Ct. 133, 71 L. Ed. 354 (1926). More recently, in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. (2d) 452 (1974), the Court upheld a Puerto Rican forfeiture statute against a takings challenge, stating:

. . . state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable ... (citation omitted)____

Plainly, the Puerto Rican forfeiture statutes further the punitive and deterrent purposes that have been found sufficient to uphold, against constitutional challenge, the application of other forfeiture statutes to the property of innocents.

416 U.S. at 686, 94 S. Ct. at 2093, 40 L. Ed. (2d) at 470. (Emphasis supplied).

We find that forfeiture is directed to the prevention of serious public harm, and is within the legitimate exercise of the police power. Accordingly, here, no taking occurred.²

[236]*236B. Due Process

As an additional sustaining ground, Respondents assert that the seizure violated the Due Process clause of the South Carolina Constitution,³ as no pre-seizure notice was served, nor any opportunity to be heard afforded. We disagree.

In Moore v. Timmerman, 276 S.C. 104, 109, 276 S.E. (2d) 290, 293 (1981) we held:

if all property seized is intended to be subject to forfeiture, then the parties claiming an interest in the property must be afforded the basic due process notice and hearing ... [they] must be given an opportunity to come forward and show, if [they] can, why the res should not be forfeited and disposed of as provided for by law. (Emphasis supplied.)

Implicit in this holding is that notice and hearing must be afforded after the property is seized.

We find no authority that seizure of real property requires pre-seizure notice and hearing. Indeed, the U.S. Supreme Court in Calero-Toledo recognized that seizure for the purpose of forfeiture “presents an ‘extraordinary’ situation in which postponement of notice and hearing until after seizure [does] not deny due process.” 416 U.S. at 680, 94 S. Ct. at 2090, 40 L. Ed. (2d) at 466. Moreover, courts have consistently held that posi-seizure procedures are sufficient. See, e.g., Allen v. Tucker, 715 F. Supp. 266 (E.D. Mo. 1989); U.S. v. 26.075 Acres, 687 F. Supp. 1005 (E.D.N.C. 1988); U.S. v. A Single Family Residence, 803 F. (2d) 625 (11th Cir. 1986). In Allen, the court stated:

A claimant’s contention that his procedural due process rights have been violated without a hearing prior to the taking of his property is untenable when the claimant is afforded the full weight of judicial process in proceedings, such as these presently before the Court, to determine if the claimant’s property was properly forfeited.

[237]*237715 F. Supp. at 268 (citation omitted).

South Carolina requires that, once property is seized, the court issue its rule to show cause to all persons with an interest in the property. S.C. Code Ann. § 44-53-530(1) (Cum. Supp. 1990). Thereafter, the judge must conduct a hearing to determine whether the property is, in fact, subject to forfeiture. Moreover, any “innocent owner may petition for return of the seized property by demonstrating that he did not consent to, or have knowledge of the use of the property.” S.C. Code Ann. § 44-53-586 (Cum. Supp. 1990). Lastly, Rule 65, S.C.R.C.P., authorizes property owners, who can demonstrate irreparable injury, to move for a temporary restraining order or injunction.

We, like the majority of jurisdictions, find these procedures satisfy due process requirements.

CONCLUSION

We reverse so much of the order of the Circuit Court as holds that the forfeiture constituted a taking; we affirm its ruling on due process.

Affirmed in part; reversed in part.

Gregory, C.J., and Harwell and Toal, JJ., concur. Finney, J., concurring in part and dissenting in part.

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411 S.E.2d 209, 306 S.C. 232, 1991 S.C. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-real-property-at-1518-holmes-street-sc-1991.

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