• March 14, 2018

When people are arrested and charged with a crime, their paramount concern is generally their personal freedom and the accused (the smart ones, at least) quickly retain criminal defense lawyers or work with public defenders assigned to them.

But there are often tag-along proceedings that follow criminal prosecutions: forfeitures, which are particularly prominent in the context of drug-related prosecutions (but by no means limited to alleged drug crimes). People lose sight of these tag-along proceedings at their peril.

Forfeiture can apply to money, cars, drugs, drug paraphernalia, guns, etc. And once the government gives notice of its intent to seize an accused’s property, the accused has sixty days to challenge the forfeiture. When that deadline passes, even by one day, no challenge will be heard.

Whether missing the deadline is a criminal defense lawyers’ fault, the clients’ fault, or both can be blamed, is it consistent with one’s sense of a justice system that the 60-day deadline is “jurisdictional,” that there is apparently no relief or remedy if the deadline is not met, no matter how compelling the circumstances?

In the recent case of Ricky Ray Evoniuk, it seems clear that Hennepin County District Court Judge Kevin Burke was sympathetic to Evoniuk, who lost the right to challenge the forfeiture of his guns because he missed the deadline by a day. After all, the 60-day deadline has “no rational basis” and the Judge Burke found that “radically short periods such as this raise due process issues.”

The Minnesota Court Court of Appeals declined Judge Burke’s invitation to address what he viewed as an “unfair” result in Evoniuk’s case because the constitutional issue had not been properly raised before the trial court. This gave the Court of Appeals a basis to reject Evoniuk’s appeal without addressing the merits of his constitutional claim.

The problem with the argument that a 60-day deadline has “no rational basis,” however, is that, arguably, no fixed deadline ever has a “rational basis.” It is an arbitrarily chosen span of time balancing competing interests.

We would think that due process claims arising from challenges to deadlines would only arise if a particular deadline was illusory (i.e., where the allotted time makes compliance impossible) or if the government impeded compliance with the deadline it imposed (i.e., by evading service of a required notice within the imposed deadline or concealing the means of giving notice).

In short, too bad for Mr. Evoniuk that he lost the opportunity to challenge the seizure of his guns, but we expect he might well have lost his guns even if he had had the chance to challenge the constitutionality of a 60-day iron-clad deadline for challenging the forfeiture.

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