HSC Enforces Deadlines in Forfeiture Proceedings

By Benjamin Lowenthal -

 Alm v. Eleven (11) Products Direct Sweepstakes Machines, et al. (HSC December 20, 2021)

Background. On September 26, 2012, Honolulu Police Department officers got a warrant to search a business called Winner’z Zone to look for gambling-related machines. They find 77 Product Direct Sweepstakes (PDS) machines (which look like this), cash, and other evidence believed to be related to unlawful gambling. For two years the property was held in police custody before HPD initiated forfeiture proceedings. The criminal investigation was abandoned, but the police held onto the machines. On September 12, 2014, the police generated a new report and report number stating the machines were re-seized for forfeiture purposes.

 

A week later, the police requested the prosecutor to initiate proceedings to forfeit the machines. On September 22, 2014, the prosecution filed a petition for administrative forfeiture with the Department of Attorney General. A business known as PJY Enterprises, LLC challenged the seizure and requested judicial review of the administrative forfeiture. Judicial forfeiture proceedings began on December 19, 2014. PJY moved to dismiss the proceedings because it was untimely and “reseizure” for forfeiture purposes violated the deadlines in HRS Chapter 712A. The circuit court—the Hon. Judge Randal K. O. Lee presiding—granted the motion. The prosecution appealed. The ICA vacated the dismissal order. PJY petitioned for a writ of certiorari.

 

There are no “Internal Deadlines” in the Forfeiture Statutes. The forfeiture statutes contain several deadlines. When the police or government agency seize property for forfeiture, the “seizing agency” must “make reasonable efforts to give notice of seizure for forfeiture . . . within thirty days of seizure.” HRS § 712A-7(3). The seizing agency must also “send to a prosecuting attorney a written request for forfeiture within thirty days[.]” HRS § 712A-7(4). The prosecutor then has 45 days to initiate forfeiture proceedings. HRS § 712A-9(1).

 

However, “[n]otwithstanding any other provision of law, forfeiture proceedings under this chapter may be commenced at any time within the period in which a criminal proceeding may be instituted for a covered offense pursuant to section 701-108.” HRS § 712A-17.

 

The police here did nothing for two years before sending its written request for forfeiture. The HSC rejected the ICA’s analysis that HRS § 712A-17 allows the two-year delay. That HSC turned to legislative history and noted that the Legislature “made explicit its intent that the remedy for noncompliance with HRS § 712A-9’s deadlines was the return of the property.” In the end, the HSC held that the police and prosecution’s failure to comply with the deadline in HRS §§ 712A-7 and 712A-9 require return of the property.

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