                     IN THE SUPREME COURT OF TENNESSEE
                                AT NASHVILLE
                                                         FILED
                                                             January 25, 1999

                                                        Cecil W. Crowson
THURSTON ANDREW HELMS              )
                                                       Appellate Court Clerk
                                   )
      Plaintiff/Appellant          )    FOR PUBLICATION
                                   )
v.                                 )    FILED: JANUARY 25, 1999
                                   )
TENNESSEE DEPARTMENT               )    DAVIDSON CHANCERY
OF SAFETY                          )
                                   )    Hon. Irvin H. Kilcrease, Jr., Chancellor
      Defendant/Appellee.          )
                                   )    No. 01S01-9709-CH-00185
                                   )
                                   )    (Civil Forfeiture)
                                   )



For the Appellant:                      For the Appellee:

E.E. Edwards, III &                     John Knox Walkup
James A. Simmons                        Attorney General & Reporter
Edwards & Simmons
Nashville, Tennessee                    Michael E. Moore
                                        Solicitor General

                                        Albert T. Partee, III
                                        Senior Counsel

                                        Paula D. Godsey
                                        Assistant Attorney General




                                OPINION


Court of Appeals                                                    Barker, J.
Affirmed
                                        OPINION



       We granted this appeal to determine if Article I, section 6 of the Tennessee

Constitution affords the right to a jury trial in cases under Tenn. Code Ann. § 53-11-

451 (Supp. 1992), involving the forfeiture of personal property. The Court of Appeals

held that Thurston Andrew Helms, the appellant and owner of the forfeited property in

this action, was not entitled to a jury trial. We affirm the judgment of the court below

and conclude that in Tennessee there is no right to a jury trial in statutory proceedings

involving the forfeiture of personal property.



                                    BACKGROUND



       On May 4, 1992, Nashville police officers seized seven packets of cocaine and

other drug paraphernalia from Mr. Helms’ residence at 3447 Golf Club Lane. The

Davidson County Criminal Court issued an ex parte order of seizure, pursuant to

Tenn. Code Ann. § 45-2-706 (Supp. 1992), requiring NationsBank to freeze

$30,808.09 in three of Mr. Helms’ bank accounts. The trial court found probable

cause to believe that the money was traceable to Mr. Helms’ alleged illegal drug trade.



       Following two hearings attended by Mr. Helms and his lawyer, the trial court

determined that the money was subject to forfeiture under Tenn. Code Ann. § 53-11-

451 (Supp. 1992). The trial court directed NationsBank to surrender the money to the

police at which point the police were to prepare and deliver the required notices of

seizure. NationsBank complied with the court order by sending the police two

cashier’s checks, one for $30,808.09 and a second for $215.06. The police prepared

a notice of seizure for each check identifying Mr. Helms as the owner of the seized




                                            2
money and listing his address as 3447 Golf Club Lane. The two notices were sent to

the post office to be delivered by certified mail to the Golf Club Lane address.



       During that time, Mr. Helms filed a change of address with the post office,

listing his new residence as 286 April Lane. The post office delivered the two notices

of seizure to the April Lane address on separate dates. Mr. Helms signed for the

notice concerning the $215.06; however, no one was available at his residence to sign

for the notice concerning the $30,808.09. The post office left a note at the April Lane

address stating that the certified letter could be picked up at the local post office.

Approximately one week later, the post office left a second notice at the residence and

thereafter returned the certified letter to the police when Mr. Helms failed to retrieve it.



       Mr. Helms did not file a timely claim for the money, and consequently, the entire

$31,023.15 was forfeited without an administrative hearing. Mr. Helms’ lawyer

requested the Commissioner of Safety to reconsider the forfeiture order and to provide

a hearing on the merits. When the request was denied, Mr. Helms filed a petition for

review in the Davidson County Chancery Court alleging that the forfeiture statutes

were unconstitutional on their face and as applied to him. He challenged the forfeiture

on grounds that he did not receive adequate notice and that he was denied the right to

a jury trial as guaranteed by Article I, section 6 of the Tennessee Constitution.



       In a bench trial, the chancery court upheld the forfeiture and determined that

Mr. Helms had received adequate notice of the forfeiture proceedings and that he did

not have the right to a jury trial under the forfeiture statutes. The Court of Appeals

affirmed the judgment of the trial court.



       On appeal, Mr. Helms contends that the statutes governing the forfeiture of

personal property denied his right to a jury trial under the Tennessee Constitution.

                                             3
The Department of Safety, (D.O.S.), argues for the first time that this Court is without

jurisdiction to determine the merits of Mr. Helms’ claim because Mr. Helms failed to

raise it in a contested case hearing before the D.O.S. Mr. Helms filed a claim for the

money approximately twelve days after the Commissioner of Safety issued the order

of forfeiture. Mr. Helms raised the constitutional issue of the right to a jury trial in his

petition for judicial review in the chancery court and in the Court of Appeals. 1



        Although it appears from the record that Mr. Helms was untimely in both his

claim for the money and his petition for judicial review, the D.O.S. waited throughout

the proceedings in chancery court and the Court of Appeals to raise any objection

concerning timeliness. We, therefore, conclude that the D.O.S. has waived any

defense that it might otherwise have had in that regard.



                                               DISCUSSION



        In this case, we must determine whether the statutory forfeitures of personal

property may be conducted without jury trials. The forfeiture of personal property in

drug-related cases is governed by the Drug Control Act. See Tenn. Code Ann. § 53-

11-451 (Supp. 1992). Forfeitures under that statute are conducted by administrative

agencies under the procedures contained in Tenn. Code Ann. § 53-11-201 (Supp.

1992), and Tenn. Code Ann. §§ 40-33-201 to -214 (1997). Those statutes provide

public hearings when persons claim an interest in the seized property. Neither statute

allows for a jury trial. Although Tenn. Code Ann. §§ 40-33-201 to -214 did not yet




        1
           The record reflects that Mr. Helm s did not contest the forfeiture until after the administrative
proc eed ings . Nev erthe less , his u ntim elines s dur ing th ose proc eed ings does not a ffec t this C ourt’s
jurisdiction on appeal. The administrative proceedings were not a proper forum for his constitutional
claims . See Richardson v. Tenn essee Bd. Of D entistry, 913 S.W .2d 446, 456 (Tenn. 1995 ). Moreover,
once those proceedings were finalized, he sought judicial review in the chancery court and preserved the
constitution al issues for appe llate review.

                                                       4
exist at the time of the forfeiture in this case,2 we shall review it together with Tenn.

Code Ann. § 53-11-201 in addressing Mr. Helms’ constitutional claim.



        During the times relevant in this case, the forfeiture proceedings were provided

in Tenn. Code Ann. § 53-11-201 (Supp. 1992). Mr. Helms was required to file a timely

claim with the Commissioner of Safety if he wished to claim an interest in the seized

property. Tenn. Code Ann. § 53-11-201(c)(1). 3 Claimants were entitled to a public

hearing before the Commissioner of Safety in which the State had the burden of

proving by a preponderance of the evidence that the property should be forfeited.

Tenn. Code Ann. § 53-11-201(d)(1)(A) - (2). Any party aggrieved by the

Commissioner’s decision had the right to seek judicial review in the Chancery Court of

Davidson County, with review limited to the administrative record and conducted

without a jury in accordance with the Uniform Administrative Procedures Act. See

Tenn. Code Ann. § 4-5-322(a)(1), (b)(1), (g) (Supp. 1992).



        Similar to those proceedings, the new procedure codified at Tenn. Code Ann.

§§ 40-33-201 -- 214 (Supp. 1994), follows an administrative model for the forfeiture of

property. Persons seeking to contest forfeiture of personal property under the Drug

Control Act must file a timely claim with the Commissioner of Safety. Tenn. Code

Ann. § 40-33-206 (1997). Claimants are then entitled to a contested case hearing

under the Uniform Administrative Procedures Act in which the State must prove by a

preponderance of the evidence that the property at issue is subject to forfeiture.

Tenn. Code Ann. §§ 40-33-209(d), 210(a). The party dissatisfied with the


        2
         At the time the forfeiture warrants were issued in this case, the adm inistrative proceedings were
provided in Tenn. Code Ann. § 53-11-201 (Supp. 1992). In 1994, the General Assembly amended those
procee dings by en acting a u niform proced ure gov erning the forfeiture o f person al proper ty. See 1994
Pub. Acts Ch. 925, § 1 (codified at Tenn. Code Ann. §§ 40-33-201 -- 214). The new provisions supplant
the procedures contained in Te nn. Code Ann. § 53-11 -201. Both provisions follow an administrative
mod el without the use of ju ry trials.

        3
         If no claim were filed to contest the forfeiture, as in this case, then the property was forfeited
without an adm inistrative hea ring. Ten n. Code Ann. § 53 -11-203 (Supp. 1 992).

                                                      5
Commissioner’s final order may seek judicial review by filing a written notice in either

the circuit or chancery court of Davidson County. Tenn. Code Ann. § 40-33-213(c)

(1997). Judicial review is conducted without a jury and 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.



         Mr. Helms contends that the forfeiture statutes violate Article I, section 6 of the

Tennessee Constitution because they do not provide for jury trials in the public

hearings or judicial review. We disagree.



         Article I, section 6 of our Constitution does not guarantee the right to a jury trial

in every case. The text of that provision reads, “[t]hat the right of trial by jury shall

remain inviolate, and no religious or political test shall ever be required as a

qualification for jurors.” This right has been interpreted to be a trial by jury as it existed

at common law, Marler v. Wear, 117 Tenn. 244, 246, 96 S.W. 447, 448 (1906), or

more specifically, “the common law under the laws and constitution of North Carolina

at the time of the adoption of the Tennessee Constitution of 1796.” Patten v. State,

221 Tenn. 337, 344, 426 S.W.2d 503 506 (Tenn. 1968), cert. denied, 400 U.S. 844,

91 S.Ct. 88, 27 L. Ed.2d 80 (1970). For rights and remedies created after the

formation of our Constitution, the legislature is free to enact procedures that do not

include jury trials. Newport Housing Authority v. Ballard, 839 S.W.2d 86, 88 (Tenn.

1992).



         The Court of Appeals has previously addressed whether Article I, section 6

affords the right to a jury trial in forfeitures of personal property. See Jones v. Greene,

946 S.W.2d 817, 823-24 (Tenn. App. 1996). 4 In an opinion by Judge Koch, the court


         4
        In denying Mr. Helms’ claim, the Court of Appeals relied upon its prior decision in Jones v.
Greene, 946 S.W .2d at 824 -25.

                                                    6
detailed the history of Tennessee’s civil forfeiture law, beginning with the Uniform

Narcotic Act of 1937. Id. at 820. That statute established a judicial forfeiture

proceeding in which a judge or magistrate presided without a jury on the forfeiture of

various narcotic drugs. Id. (citing Tenn. Code Ann. § 52-1315).



        As the court in Greene noted, Tennessee’s forfeiture laws followed a judicial

model until 1955. Id. at 820. In that year, the General Assembly adopted an

administrative proceeding in which the Commissioner of Safety was authorized to

decide forfeiture claims. Id. at 820-21 (citing Tenn. Code Ann. § 52-1404). Judicial

review was available by filing a common-law writ of certiorari in the Circuit Court of

Davidson County. Id. at 821 (citing Tenn. Code Ann. § 52-1405). However, in both

the initial hearings and judicial review, there was no allowance for jury trials.



        Tennessee statutes governing the forfeiture of drugs and other personal

property have consistently omitted the use of jury trials. 5 The Court of Appeals in

Greene upheld those provisions as “new remedies” created by the legislature after the

formation of our Constitution. 946 S.W.2d at 825. The court, however, did not

address whether similar forfeiture procedures existed under the common law of North

Carolina. See id.



        Our inquiry is whether at the time of 1796, North Carolina recognized civil

forfeiture proceedings with the right to jury trials. Mr. Helms relies upon early English

common law and colonial records to argue that forfeiture proceedings both existed in

North Carolina and were tried by juries. In a well-researched brief, Mr. Helms refers to




        5
         The General Assembly has provided the right to trial by jury in cases involving forfeiture of real
property. See Tenn. Code Ann. § 53-11-452(c)(4) (Supp. 1998). Those cases are tried in the circuit or
chanc ery court of the coun ty where the property is loc ated. Te nn. Cod e Ann. § 53-11-4 52(c)(1 ).

                                                     7
historical qui tam actions and executive orders sent by the English Crown to the

governor-in-chief of the North Carolina province.



       Qui tam actions originated by statute in England, allowing individual informants

to sue other citizens for particular acts of commission or omission against the Crown.

The suits were filed in the Courts of Exchequer and if the informant won, he divided

the penalty with the Crown. See e.g. Mitchell, who Prosecutes for the King and

[himself] v. Torup, Parker 227, 145 Eng. Rep. 764 (F.x. 1766). Although this practice

involved jury trials and was adopted in colonial North Carolina,6 it is significantly

different from civil forfeiture and is unpersuasive in this case.



       Mr. Helms also relies on two executive orders sent by King George II to the

governor-in-chief of the North Carolina province. In two orders sent by the king in

1754, Governor Arthur Dobbs was directed to establish a Court of Exchequer and was

given a procedure for the selection of jurors. Instructions to Governor in Chief, 8

Colonial Records of North Carolina: Records of the Executive Council, 1735-1754,

R.J. Cain, ed. 490, 520, 531 (1988). The colonial records show that the North

Carolina province had jury proceedings in courts similar to the common law Court of

Exchequer. The records, however, are sparse and do not show evidence of forfeiture

proceedings in the North Carolina province or in early North Carolina statehood.



       From other American colonies, it is well-documented that jurisdiction over the

forfeiture of property, as exercised by the Court of Exchequer in England, was

adopted by colonial courts in common law proceedings. See United States v. One

1976 Mercedes Benz 280S, 618 F.2d 453, 466 (7th Cir. 1980). Forfeiture in those

courts was in rem against the property in question and was tried by a jury, similar to



       6
           See Smethwick v. Williamson , 5 Colon ial Recor ds 385 (Gene ral Court 1 723).

                                                      8
the traditional procedure in Exchequer. C.J. Hendry Co. v. Moore, 318 U.S. 133, 139-

40, 63 S.Ct. 499, 502, 503, 87 L.Ed. 663 (1943).



         Several jurisdictions in the United States have borrowed from the early colonial

practice and have incorporated the use of jury trials into modern forfeiture

proceedings. If not prescribed by statute, those states have recognized the right to a

jury trial in forfeiture cases based upon their respective constitutions and the common

law in both England and colonial America.7



         Tennessee, however, differs from all other states in focusing upon the common

law of North Carolina to interpret the jury trial guarantee under the State Constitution.

Patten v. State, 221 Tenn. at 344, 426 S.W .2d at 506. From our review of the law in

North Carolina and Tennessee, we find no evidence that those states followed or

adopted the forfeiture proceedings from English common law. Moreover, even if

forfeiture existed in North Carolina and the Tennessee territory before 1796, there is

no evidence that jury trials were the mode for resolving those types of cases. 8



         When addressing the constitutionality of a statute, we afford considerable

discretion to the General Assembly and resolve any reasonable doubt in favor of the

legislative action. In re Burson, 909 S.W.2d 768, 775 (Tenn. 1995); Great Atlantic &

Pacific Tea Co. v. McCanless, 178 Tenn. 354, 355, 157 S.W.2d 843, 844 (1942). We


         7
         See United State v. One 1976 Mercedes Benz 280S, 618 F.2 d 453, 46 9 (7th Cir. 1 980); Idaho
Dept. Of Law Enforcement v. Free, 126 Idah o 422, 42 5-26, 88 5 P.2d 3 81, 384- 85 (199 4); Peo ple ex rel.
O’Malley v. 6323 North LaCrosse Avenue, 158 Ill.2d 453, 458, 199 Ill. Dec. 690, 693, 634 N.E.2d 743,
746 (19 94); Comm onwealth v. 1984 Z-28 Camaro Coupe, 530 Pa. 523, 532, 610 A.2d 36, 41 (199 2);
Medlock v. 1985 Ford F-150 Pick Up, 308 S.C . 68, 72-73 , 417 S.E .2d 85, 87 (1992); In re Forfeiture of
1978 Chevrolet Van, 493 So .2d 433, 4 36-37 (F la. 1986); Comm onwealth v. One 1972 Chevrolet Van,
385 M ass. 19 8, 201-0 2, 431 N .E.2d 20 9, 211 (1 982); People v. One 1941 Chevrolet Coupe, 37 Cal. 2d
283, 299 -300, 23 1 P.2d 8 32, 844 ( 1951); State v. 1920 Studebaker Touring Car, 120 Or. 254, 271, 251
P. 701, 70 6 (1926 ); Colon v. Lisk, 153 N.Y . 188, 198 , 47 N.E. 3 02, 305 ( 1897).

         8
           The North Carolina Court of Appeals has upheld a state forfeiture statute that omits the use of
jury trials in drug -related fo rfeiture ca ses. State v. Mo rris, 103 N.C. App. 246, 250, 405 S.E.2d 351, 353
(N.C . Ct. A pp. 1 991 ). Th e cou rt bas ed its decis ion in p art up on fin ding t hat th e righ t to trial b y jury in
alcohol-re lated forfe iture case s did not e xist at com mon law or by statu te in 1868 . See id.

                                                            9
find reasonable doubt in this case and uphold the constitutionality of the forfeiture

provisions.



                                     CONCLUSION



       The General Assembly enacted forfeiture statutes and amended them over

time to combat the rise of drug-related crimes in Tennessee. The modern procedures

for the forfeiture of personal property are administrative, except for judicial review, and

are intended to afford due process to the interested claimants. In addition, the

procedures provide an efficient means of enforcing anti-drug and contraband

regulations, with all the rights and remedies created by statute.



       Having found no evidence that those or similar proceedings existed under

North Carolina common law in 1796, we conclude that the statutes for the forfeiture of

personal property are valid under Article I, section 6. The judgment of the Court of

Appeals is affirmed with costs assessed against the appellant, Mr. Helms.



                                                  _____________________________
                                                  WILLIAM M. BARKER, JUSTICE



CONCUR:

Anderson, C.J.
Drowota, Birch, Holder, JJ.




                                            10
                            SUPREME CO URT, NASHVILLE



THURSTON ANDREW HELMS                        )
                                             )
       Plaintiff/Appellant                   )       DAVIDSON CHANCERY
                                             )       NO. 92-3 515-I
v.                                           )
                                             )       NO. 01S01-9709-CH-00185
TENNESSEE DEPARTMENT                         )
OF SAFETY                                    )       Court of Appeals Affirmed
                                             )
       Defendant/Appellee.                   )
                                             )



                                         JUDGMENT

       This case was heard upon the record on appeal from the Court of Appeals,

application for permission to appeal having heretofore been granted, briefs and

argument of counsel; and upon consideration thereof, this Court is of the opinion that

there is no right to a jury trial in the civil forfeiture of personal property.



       In accordance with the opinion filed herein, it is, therefore, ordered and

adjudged that the judgment of the Court of Appeals is affirmed, and the case is

remanded to the Chancery Court of Davidson County for the collection of costs

accrued below.



       Costs of appeal will be paid by the appellant, Thurston Andrew Helms.




01/25/99
