                              No.    94-275
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


DANIEL L. MAGONE, SHERIFF OF
MISSOULA COUNTY, STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
THOMAS AUL,                                                   DEC 29 1994
          Defendant and Appellant.
                                                             22 3midi
                                                         CLERK OF SUPREME COURT
                                                            STATE OF MONTANA



APPEAL FROM:      District Court of the Fourth Judicial District,
                  In and for the County of Missoula,
                  The Honorable John W. Larson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                  Terry G. Sehestedt, Missoula, Montana
          For Respondent:
                  Hon. Joseph P. Mazurek, Attorney General; Jennifer
                  Anders, Assistant Attorney General, Helena, Montana
                 Karen Townsend, Deputy County Attorney, Missoula,
                 Montana


                              Submitted on Briefs:         October 13, 1994
                                              Decided:      December 29, 1994

Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

     Petitioners instituted a forfeiture action against Ellen Au1

in the Fourth Judicial District Court,                 Missoula     County.      The

Missoula County Sheriff's Department seized $3000 in cash from

Ellen while she was being booked for purchasing marijuana from an

informant.     Ellen committed suicide eight months later.               Thomas Au1

appears as Ellen's        successor      in    interest.      Thomas appeals the

District Court's denial of his motion for summary judgment. We

reverse.
     The issue on appeal is whether the District Court properly

denied Thomas's motion for summary judgment.

     In May 1990,       Thomas and Ellen Au1 were charged in Missoula

County with possession of marijuana with the intent to sell. On

November 2, 1990, while on bail and awaiting trial on the May 1990

charges,     Ellen purchased one-quarter ounce of marijuana from an

undercover     police   informant.       Detectives    of   the   Missoula    County

Sheriff's    Department      monitored   the    transaction    between   Ellen   and

the informant and arrested Ellen. At the jail, officers discovered

$3000 in cash in Ellen's possession. The officers seized the cash,

and the instant forfeiture proceedings were initiated.

     On December 18, 1990, Ellen filed a verified response to the

petition     for   forfeiture,    denying all of the allegations of the

petition and affirmatively alleging that the money seized was not

used for the purposes alleged by the Sheriff's Department.

     In May 1991, a jury found Thomas and Ellen guilty of the May

1990 charges.       Before    sentencing, Thomas and Ellen fled Missoula


                                          2
and subsequently were          arrested       in    Missouri.      Ellen     committed

suicide in jail in Missouri.          Thomas was brought back to Montana.

      On January 31,       1992,     Ellen's attorney moved for summary

judgment against the petitioners.                  The District Court denied the

motion,     ruling that genuine        issues         of material fact existed

concerning the source and intended use of the $3000 seized and

concerning     which    underlying        drug       transaction--the        May     1990

transaction or the November 1991 transaction--gave rise to the

forfeiture action.

      On April 28, 1992, Thomas moved for substitution of party in

the forfeiture action, stating that he was Ellen's surviving spouse

and sole heir and that he was entitled to payment or delivery of

her property and estate.        On June 19, 1992, the parties stipulated

to the substitution.

      On July 9, 1992, Thomas moved for summary judgment.                          Thomas

and   his   parents,   David   and   Margaret        Aul,   each submitted sworn
affidavits stating that, in October 1990, David and Margaret had

given Thomas and Ellen $3300 in cash as an anniversary gift. David

and Margaret attached a copy of a bank receipt showing that they

withdrew $3300 from their account on October 2,                      1990.         Thomas

stated that the $3000 seized from Ellen was the gift money.                         David
and Margaret stated that they had intended the money to be used to

purchase a trailer, and Thomas stated that he and Ellen intended at

all times to use the money for that purpose.                    The State responded

by questioning the veracity of the affidavits and arguing that the

true source of the cash was Thomas and Margaret's extensive drug-


                                          3
related        activities.         The District Court denied Thomas's motion for

summary judgment, and Thomas appeals.

         Did the District Court properly deny summary judgment?

         Our standard in reviewing a grant or denial of summary

judgment is the same as that initially utilized by the district

court.         Cooper v. Sisters of Charity (Mont. 1994), 875 P.2d 352,

353,     51 St. Rep. 484, 485.                Summary judgment is proper when there

is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.                        Rule 56(c), M.R.Civ.P.

On a summary judgment motion, the movant bears the initial burden

of proof; if the movant meets that burden of proof, the burden then

shifts to the non-moving party.                   Koepplin v. Zortman Mining (Mont.

1994),     881 P.2d 1306, 1309, 51 St. Rep. 880, 882.                     Once the burden

has shifted from the movant, the non-moving party must come forward

with     "substantial             evidence"    raising a       genuine issue of fact.

Thornton v. Songstad               (1994), 263 Mont. 390, 397-98, 868 P.Zd 633,

637.      "When raising the allegations that disputed issues of fact

exist,     the non-moving party has an affirmative duty to respond by

affidavits       or       other    sworn    testimony   containing      material   facts   that

raise genuine issues; conclusory or speculative statements will not

suffice."        Koeonlin, 881 P.2d at 1309.               The non-moving party "must

set forth specific                  facts     and cannot    simply rely upon               their

pleadings        .    .    .'     Thornton,    868 P.2d at 638.

         Drug forfeiture actions are civil proceedings to which the

rules     of    civil      procedure,       including   Rule    56,   M.R.Civ.P.,      apply.

See State v. Baker (1983), 205 Mont. 244, 252, 667 P.Zd 416, 420.


                                                 4
Title    44, chapter     12, MCA, provides for the forfeiture of property

used or      intended to be used in                 relation to the possession,

transfer,         transportation,      or    concealment of          dangerous    drugs.

Criticalto this case is the construction of §§ 44-12-203 and -204,

MCA.      Section 44-12-203 (11, MCA, provides that U [tlhere                      is a

rebuttable        presumption    of   forfeiture     as   to   all    property"   seized

under     chapter 12 of          Title      44.      To   rebut      the   presumption,

5 44-12-204, MCA, provides in pertinent part that:

              (1)  an owner of property who has a verified answer
        on file must prove that the property was not used for the
        purpose charged;
              (2)  an owner of property listed in 44-12-102(l) (g)
        who has a verified answer on file may prove in the
        alternative that the use of the property occurred without
        his knowledge or consentE.1

        Thomas argues that,           when he submitted the three affidavits

showing the legitimate source and intended use of the seized cash,

he fulfilled the requirements of                 § 44-12-204, MCA. Having rebutted

the presumption, he argues that,                  to prevent the grant of summary

judgment in his favor, the burden then shifted to the petitioners

to present evidence             sufficient to create           a genuine issue of

material fact.         He asserts that the petitioners failed to produce

any evidence which would create such an issue; instead, he asserts

that the petitioners merely set forth unsworn, speculative, and

conclusory        allegations.    According to Thomas, such allegations are

insufficient to create a genuine issue of material fact, and the

District Court improperly denied his motion for summary judgment.

The District Court concluded:

              7.      Neither 5 44-12-102 nor any other Montana
        statute    addresses the standard of proof, if any, that

                                             5
      must be met by Petitioner in establishing the facts upon
      which the rebuttable presumption in § 44-12-203(l) is
      based.



            11.  At trial, it is the owner's burden to rebut the
      presumption of forfeiture by proving that the property
      was not used for the purpose charged.      5 44-12-204(l),
      MCA.
            12.  Respondent  must  rebut the presumption of
      forfeiture by a preponderance of the evidence.    Rule
      301(b) (2), M.R.Evid.; Matter of the Seizure of a 1988
      Chevrolet Van, 251 Mont. 180, 183, 823 P.2d 858, 860
      (1991).

           13.  Respondent has failed to rebut the presumption
      of forfeiture by [al preponderance of the evidence.
      Petitioners argue that Thomas failed to meet his initial

burden,    arguing that Rogers v. Swingley (1983), 206 Mont. 306,

309-10,    670 P.2d 1386, 1388, requires that

      [tlo satisfy this burden, the movant must make a clear
     showing as to what the truth is so as to exclude any
     doubt as to the existence of any genuine issues of
     material fact.

Petitioners assert that the affidavits submitted by Thomas and his

parents "do not conclusively determine the two issues relevant to

this forfeiture proceeding:         the source of the $3,000 cash or its

intended    use."      Petitioners assert that the affidavits fail to

"conclusively       link"   the anniversary gift money to the money found

on Ellen at the time of her arrest.           Petitioners   cite   Cereck v.

Albertsons, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 512, for

the maxim that         'I [tlhe party opposing   the motion for summary

judgment is entitled to the benefit of all reasonable inferences

that may be drawn from the offered proof."                  Under    Cereck,



                                       6
petitioners claim that the District Court properly concluded that

Thomas failed to meet his burden of proof.

        The Auls'     affidavits,     however,   are explicit and unequivocal

statements regarding the legitimate source and intended purpose of

the money seized from Ellen.             Although    the    petitioners       questioned

the veracity of the affidavits, they failed to provide the District
court     with      any    substantial    evidence        challenging     the      sworn

statements       or establishing an alternative                   source or    intended

purpose of the money.           We conclude that the sworn affidavits of

Thomas and his parents constituted sufficient evidence to rebut the

presumption of forfeiture.

        Petitioners argue that even if Thomas met his initial burden,

"the State presented sufficient evidence to confirm that several
factual issues            remained which required resolution at                 trial."

(Emphasis added.)            As we stated in Thornton, 868 P.2d at 638,

"[tlhe non-moving party must set forth soecific facts and cannot

simply     rely      upon     their    pleadings      .     .II     We conclude that

petitioners failed to set forth specific facts to refute the

affidavits and relied solely upon the speculative and conclusory
allegations contained in their pleadings.                  Because the petitioners

failed to show the existence of a genuine issue of material fact,

the District Court improperly denied summary judgment.

        Reversed.




                                                           Justice
    We concur:




a
