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Forfeiture of co-owner’s interest in car violated Eighth Amendment’s excessive fine prohibition

State v. One 2013 Toyota Corolla, 2015 WI App 84; case activity (including briefs)

While a co-owner’s interest in a car didn’t make her the owner for purposes of the “innocent owner” exception to property forfeiture under § 961.55(1)(d)2., forfeiture of her full financial interest violated the Eight Amendment’s prohibition against the levying of excessive fines.

Baumgard was charged with three sales of marijuana. The charges were eventually dismissed under a deferred prosecution agreement. The State also filed a forfeiture action against the car Baumgard used during two of the sales. Baumgard had purchased the car with a trade-in allowance for his old car and money provided by Vogel, which Baumgard was repaying. Both were named on the title, but Baumgard had exclusive use of the car and paid for gas, maintenance, and insurance. (¶¶2-3, 7-9).

Baumgard and Vogel argued Vogel was the true owner of the car and was unaware of Baumgard’s criminal activity; thus, they claimed, the “innocent owner” doctrine precluded forfeiture of the car. The court of appeals affirms the circuit court’s conclusion that even though Vogel was “innocent” of Baumgard’s criminal activity, she was merely the “nominal” owner under the factors for determining ownership—namely, possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598, 603-07, 587 N.W.2d 919 (Ct. App. 1998). Thus, the innocent owner exception doesn’t apply:

 ¶10     …. Based on this record, it is clear Baumgard had nearly complete possession and control of the Toyota. He alone used it; Vogel did not. He paid for the insurance, gas and maintenance for the vehicle. When the Toyota was seized, Baumgard took personal items out of it, and the testimony suggests Vogel had no such items in the Toyota. Further, Baumgard traded in his prior vehicle for the Toyota, and Vogel had a different vehicle of her own and did not have to purchase another as a result of the seizure of the Toyota.

¶11     As to title, it is undisputed that when the Toyota was purchased and when it was seized two months later following Baumgard’s use of it in multiple drug sales, it was titled in both Baumgard’s and Vogel’s names, but that the address on the title was Baumgard’s not Vogel’s. With regard to financial stake, $2500 of the purchase of the Toyota was funded by Baumgard’s trade-in of his prior vehicle, while the remaining $20,000 was funded by Vogel with the agreement that Baumgard would pay her back. At the time of the forfeiture hearing, Baumgard had paid $550 to Vogel toward that debt.


¶13     While Vogel still has the largest financial interest in the Toyota, we have no problem on this record agreeing with the circuit court that Baumgard was the actual owner of the vehicle, and Vogel was merely a nominal owner of it. Thus Vogel has failed to establish she is “the owner” of the vehicle for purposes of the statutory “innocent owner” exception. ….

Having rejected the innocent owner argument, the court addresses whether the forfeiture violates the Eighth Amendment’s excessive fine prohibition. That issue is decided using a proportionality test that considers the nature of the offense, the purpose of the statute, the maximum potential fine for the offense, and the harm that actually resulted from the defendant’s conduct. State v. Boyd, 2000 WI App 208, ¶¶11-17, 238 Wis. 2d 693, 618 N.W.2d 251. Forfeiting Baumgard’s interest in the car (calculated at $3,050 (¶9)) passes the proportionality test, especially given his commission of three felony drug sales. (¶¶17-20). But forfeiture of Vogel’s interest ($20,000 (¶9)) “is an entirely different matter”:

¶21     …. This is not a case where evidence would support the conclusion that a nominal owner of a vehicle, such as Vogel, had knowledge of the actual owner’s involvement with illegal drugs and simply took no action to prevent use of the vehicle for such activity. The undisputed testimony was that Vogel had no knowledge of Baumgard’s illegal activity and certainly did not consent to it; and the circuit court so found: “I don’t think she knew anything about what [Baumgard] was doing with the car.” Thus, Vogel had no culpability and none of the considerations of the proportionality test would support forfeiture of her full financial interest in the Toyota. As a result, forfeiture of her full financial interest, as the circuit court effectively ordered, is necessarily disproportionate and would amount to an unconstitutionally excessive fine.

A concurring judge takes a different (and rather more persuasive) approach to the ownership issue. The concurrence concludes it is inconsistent with the statute’s language and intent to find Vogel was merely the “nominal” owner, as that label should apply only to a person who is an owner in name only, i.e., someone with no financial stake. (Concur. ¶¶5, 10). Property can have more than one owner, and § 961.55(1)(d)2.‘s reference to “the” owner doesn’t dictate otherwise because in statutes the singular includes the plural. § 990.001(1). (Concur. ¶¶2-4). Other jurisdictions have also recognized there can be innocent co-owners. (Concur. ¶¶6-9). Applying the Kirch factors, Vogel is a co-owner, not a mere “nominal” owner,  and because it’s clear she was unaware of Baumgard’s criminal acts, she is an innocent co-owner and her interest is not subject to forfeiture under § 961.55(1)(d)2. (Concur. ¶11). Because the concurrence finds Vogel was an innocent co-owner under the statute, it doesn’t need to reach the Eighth Amendment issue. (Concur. ¶¶1, 12).

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