              IN THE SUPREME COURT OF IOWA
                              No. 08–1369

                           Filed April 9, 2010


IN THE MATTER OF PROPERTY SEIZED FOR
FORFEITURE FROM MICHAEL WAYNE YOUNG,

MICHAEL WAYNE YOUNG,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County, Jon C.

Fister, District Court Judge, and Nathan A. Callahan, District Associate

Judge.



      Claimant seeks further review of the forfeiture of his handgun

asserting that the governing statute violates procedural due process.

DECISION OF THE COURT OF APPEALS VACATED IN PART AND

AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.



      Michael Young, Tama, pro se.



      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Brad P.

Walz, Assistant County Attorney, for appellee.
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APPEL, Justice.

      This case presents a question regarding the proper interpretation

and constitutionality of a provision of Iowa forfeiture law.    A property

owner challenges the statutory scheme for a type of in rem forfeiture

proceeding asserting that the code prevents him from filing an answer to

the State’s forfeiture complaint in violation of his right to procedural due

process.

      I. Factual and Procedural History.

      In 2002, a state trooper noticed a truck pulled over on the side of

the road and conducted a welfare check on the occupants.           Michael

Young was seated in the driver’s seat, had bloodshot, watery eyes, and

was slow to respond to the trooper’s questions.      While conducting the

check, the trooper observed a twelve-pack of beer on the passenger-side

floorboard and an empty holster on the passenger seat. Young admitted

that he had a loaded handgun under the front seat. He further stated

that he had lost count of the number of alcoholic beverages he

consumed.

      The trooper placed Young under arrest and seized the handgun

and ammunition. The State charged Young with illegal possession of a

handgun in violation of Iowa Code section 724.4 (2001) and operating a

motor vehicle while under the influence of alcohol in violation of section

321J.2.

      More than five years after the gun and ammunition were seized,

the State filed an in rem forfeiture complaint. Young filed a preanswer

motion to dismiss, raising three issues. First, Young claimed that the

forfeiture complaint violated the applicable statute of limitations because

a notice of pending forfeiture was not filed within ninety days of the

seizure of the property. Second, he claimed that the complaint violated
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the general five-year statute of limitations for forfeiture actions as the

last conduct, act, or omission giving rise to the forfeiture was more than

five years prior to the commencement of the action.           Third, Young

asserted that the in rem forfeiture was unconstitutional because the

Code specifically prevented him from filing an answer in violation of state

and federal due process guarantees.

      The district court rejected the first two arguments on the merits.

The district court did not specifically rule on the constitutional issue, but

instead allowed Young to file an answer to the State’s in rem complaint.

Young declined to file an answer, however, and the district court entered

an order granting the State’s application for forfeiture by default.

      Young appealed. The court of appeals affirmed the district court’s

ruling. On the constitutional issue, a majority of the court of appeals

held that Iowa Code section 809A.13(3) (2007) should be interpreted as

not applying to cases where the State initiates an in rem proceeding

without first serving a notice of forfeiture. Upon such an interpretation,

aggrieved property owners would retain the ability to file an answer. A

concurring opinion reached the same result, but did so by declaring Iowa

Code section 809A.13(3) unconstitutional under the statute’s plain

meaning.

      We granted further review.         Upon further review, we limit

consideration of this case to the constitutionality of Iowa Code section

809A.13(3) as applied. See Botsko v. Davenport Civil Rights Comm’n, 774

N.W.2d 841, 844 (Iowa 2009) (noting that when this court takes further

review it may address all issues raised on appeal or limit discussion to

selected issues).
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       II. Standard of Review.

       The court’s review of forfeiture proceedings is for correction of

errors at law.   In re Prop. Seized from DeCamp, 511 N.W.2d 616, 619

(Iowa 1994).     To the extent that the petitioner raises constitutional

issues, this court’s review is de novo. In re Prop. Seized from Terrell, 639

N.W.2d 18, 21 (Iowa 2002).

       III. Discussion.

       A. Overview of Iowa Code Chapter 809A.

       1.   In personam and in rem forfeiture procedures.      Entitled the

Forfeiture Reform Act, Iowa Code chapter 809A establishes two types of

forfeiture proceedings—in personam and in rem. Iowa Code §§ 809A.13,

.14.   In personam forfeiture occurs pursuant to Iowa Code section

809A.14 and is not at issue in this case.

       In rem proceedings are governed by Iowa Code chapter 809A.13.

Under Iowa Code section 809A.13(2), an in rem action may be brought by

the prosecuting attorney “pursuant to a notice of pending forfeiture or

verified complaint for forfeiture.” The use of the term “or” in Iowa Code

section 809A.13(2) indicates that there are two different ways in which

an in rem proceeding might be brought.

       2.   In rem proceedings pursuant to a notice of pending forfeiture.

Under Iowa Code section 809A.13(2), an in rem proceeding may be

brought “pursuant to a notice of pending forfeiture.” The Code provides

that a notice of pending forfeiture must be served on the owner and

interest holders of the property involved by personal service or certified

mail, subject to certain exceptions. Iowa Code § 809A.8(2)(a)–(b). Once

the notice of forfeiture is served, the owner or interested party may file

within thirty days a claim in the property, a petition for recognition of an

exemption, or an extension of time to file a claim or petition.          Id.
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§ 809A.8(1)(b)(2).     If a timely claim or petition for recognition of

exemption is received, the prosecuting attorney may then file an action

for judicial forfeiture under the timeline described in the Code.           Id.

§ 809A.8(1)(d).      If a timely claim or petition for recognition of an

exemption is not received, the prosecuting attorney may proceed to

dispose of the property according to Iowa Code sections 809A.16 and

809A.17. Id. § 809A.8(1)(e).

      3. In rem proceedings pursuant to a verified complaint. The Code

also authorizes the commencement of an in rem forfeiture proceeding

through the filing of a verified complaint.     Id. § 809A.13(2).    This is a

different procedure than that which arises through the filing of a notice

of pending forfeiture. It amounts to a direct resort to courts rather than

a process that involves the service of a notice of pending forfeiture and

subsequent filing of claims and exemptions with the prosecuting attorney

prior to invoking the judicial process.

      While the prosecuting attorney is authorized to proceed directly to

judicial process through the filing of a verified complaint under Iowa

Code section 809A.13(2), the next provision of the Code contains a

procedural limitation that appears to apply to all in rem forfeiture

actions. That section provides, “Only an owner of or an interest holder in

the property who has timely filed a proper claim pursuant to section

809A.11 may file an answer in an action in rem.” Id. § 809A.13(3).

      Under Iowa Code section 809A.11(1), a proper claim in seized

property is timely filed “within thirty days after the effective date of notice

of pending forfeiture.” Id. § 809A.11(1). Where the prosecuting attorney

commenced forfeiture pursuant to a verified complaint, however, there is

no notice of pending forfeiture and no requirement that a claim be filed

within thirty days.     The only notice required for forfeiture of property
                                            6

pursuant to an original verified complaint is service of the verified

complaint itself. Literally read, Iowa Code section 809A.13(3) appears to

prohibit an owner or interested party from defending a forfeiture initiated

pursuant to a verified complaint.

        B.    Statutory and Constitutional Issues Under Iowa Code

Section 809A.13(3).          We begin our discussion by agreeing with all

parties to this case that a statutory scheme which would allow the

forfeiture of property without notice and an opportunity to be heard

would     violate   due    process     under     the    United    States     and    Iowa

Constitutions. 1 U.S. Const. amend. XIV, § 1; Iowa Const. art. I, § 9; see

also Dusenbery v. United States, 534 U.S. 161, 167, 122 S. Ct. 694, 699,

151 L. Ed. 2d 597, 604 (2002); War Eagle Vill. Apartments v. Plummer,

775 N.W.2d 714, 719 (Iowa 2009).                The issue presented in this case,

therefore, is whether Iowa Code section 809A.13(3) can be construed to

allow aggrieved property owners and interested parties to file an answer

to a verified forfeiture complaint.

        One possible approach in this case is to avoid the constitutional

problem by holding that the limitation in section 809A.13(3) simply does

not apply to in rem proceedings commenced pursuant to a verified
complaint. This approach makes sound policy sense and would conform

to the presumption of statutory constitutionality and our mandate to

construe statutes in a fashion to avoid a constitutional infirmity where

possible. Iowa City v. Nolan, 239 N.W.2d 102, 103 (Iowa 1976).

        Such a possibility, however, does not exist here. We conclude that

the plain meaning of section 809A.13(3) does not allow for judicial

rescue. The language is not ambiguous, Carolan v. Hill, 553 N.W.2d 882,

        1As a result, it is not necessary to consider whether the state due process clause
should be construed in a fashion different from its federal counterpart. See generally
State v. Bruegger, 773 N.W.2d 862 (Iowa 2009).
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887 (Iowa 1996), and we are not confronted with conflicting statutory

directives that must be harmonized or read in pari materia. State v. Nail,

743 N.W.2d 535, 540–41 (Iowa 2007). Instead, in section 809A.13(3) we

have plain, straightforward language which prohibits a party from filing

an answer where a timely claim has not been made. It is located under

the general section applying to all in rem proceedings.       There is no

qualifying or limiting language in this or other related statutory

provisions.   In fact, the opposite is true, as the statute provides that

“[o]nly an owner” who has filed a proper claim can file an answer. Iowa

Code § 809A.13(3) (emphasis added). Though it is a matter of art rather

than science, we conclude that we cannot avoid the constitutional issue

posed by the plain language of Iowa Code section 809A.13(3).           See

Carolan, 553 N.W.2d at 887.

      As a result of our approach to the statute, we conclude that the

statute cannot be constitutionally applied in forfeiture proceedings

commenced by verified petition. To do so would violate the due process

rights of property owners or interested parties to notice and a meaningful

opportunity to be heard. Dusenbery, 534 U.S. at 167, 122 S. Ct. at 699,

151 L. Ed. 2d at 604; War Eagle Vill. Apartments, 775 N.W.2d at 719.

      Our approach, however, does not require reversal of the district

court judgment in this case.    Although the basis of the district court

opinion is opaque, the district court afforded Young an opportunity to file

an answer to the verified complaint of forfeiture. The district court did

exactly what it should have done, namely, declined to apply the mandate

of Iowa Code section 809A.13(3) to proceedings initiated by verified

complaint and proceeded to provide Young with an opportunity to

present an answer. In short, Young was afforded the process that was

due—notice of the forfeiture and an opportunity to defend. The fact that
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he chose to decline the constitutionally adequate opportunity to be heard

below cannot be used as a bootstrap to create a constitutional infirmity

on appeal.

      IV. Conclusion.

      For the above reasons, the opinion of the court of appeals is

vacated in part and affirmed in part, and the district court judgment is

affirmed.

      DECISION OF THE COURT OF APPEALS VACATED IN PART

AND AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
