In re $46,523 in U.S. Currency (2/28/2018)

April 2, 2018

Arizona Court of Appeals Division Two holds that the state must take additional reasonable steps to provide notice of forfeiture proceedings to a claimant of seized property if the state knows that the claimant did not receive notice.

During a traffic stop, an Arizona Department of Public Safety officer seized a driver’s property.  The state then initiated forfeiture proceedings by filing a complaint against the seized property and sent the summons and complaint by certified mail to the driver’s attorney.  The summons and complaint were returned to the state marked “unclaimed.”  The state then faxed a copy of the summons and complaint to the driver’s attorney after the deadline to answer the complaint had passed.

The driver argued that the state failed to properly serve the complaint, and the state argued that its service was valid on mailing.  The court of appeals concluded that the state’s failure to take additional reasonable steps to notify the driver of the complaint after it knew its prior attempt to complete service was ineffective violated the driver’s due process rights.

The dissent reasoned that due process requires the state’s effort to be reasonably calculated to provide notice of the forfeiture proceedings, but does not obligate the state to ensure that the driver received actual notice.  The dissent thus concluded that sending the complaint by certified mail was sufficient to satisfy due process.

Judge Staring authored the opinion, in which Judge Eppich concurred and Judge Brearcliffe dissented.