DISTRICT ATTORNEY FOR THE NORTHWESTERN DISTRICT vs. EASTERN HAMPSHIRE DIVISION OF THE DISTRICT COURT DEPARTMENT (and a consolidated case [Note 1]).

BOTSFORD, J. When a district attorney successfully moves under G. L. c. 94C, § 47 (b), to forfeit money connected to an illegal drug transaction, what is the appropriate disposition of the forfeited funds? In two separate cases, a judge in the District Court answered this question by ordering that the money be deposited in the Commonwealth's General Fund, rather than shared between the law enforcement trust funds of the prosecuting district attorney and police department involved in each underlying criminal case. The petitioners here -- the district attorney for the northwestern district, the district attorney for the Hampden district, and the police department of the town of Hadley (collectively, petitioners) -- petitioned for relief from the judge's two orders. We agree with the petitioners that money ordered forfeited under G. L. c. 94C, § 47, is properly directed to the prosecuting district attorney or Attorney General and the investigating police department, as specified in § 47 (d), even when the forfeiture is sought and obtained in the District Court by means of a motion brought pursuant to § 47 (b). Accordingly, we vacate the judge's two orders. [Note 2]

1. Background. The petitions arise from two criminal prosecutions in the District Court Department, one in the Eastern Hampshire Division and one in the Springfield Division. In each case, the defendant pleaded guilty to (or admitted to facts sufficient to warrant conviction of) drug-related crimes. [Note 3] Also in each case, the Commonwealth filed a motion in the District Court, pursuant to G. L. c. 94C, § 47 (b), for forfeiture of money that had been seized from the defendant and that, the

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Commonwealth alleged, was connected to the drug transactions that were the subjects of the criminal charges. [Note 4] Both motions were allowed (with no apparent opposition by the respective defendants), and in each case the judge ordered the forfeited monies to be distributed to the Commonwealth's General Fund.

General Laws c. 94C, § 47 (§ 47), governs the forfeiture of assets involved in or derived from violations of G. L. c. 94C, the Controlled Substances Act (Act). Section 47 (a) provides that "[t]he following property shall be subject to forfeiture to the commonwealth and all property rights therein shall be in the commonwealth . . . ." The subsection then lists eight separate categories of such property, including controlled substances and drug-manufacturing equipment, as well as conveyances (for example, automobiles, boats, and aircraft), money, and real estate involved in or acquired as a result of illegal narcotics transactions. G. L. c. 94C, § 47 (a) (1)-(8).

Section 47 (b) provides that certain categories of property subject to forfeiture under subsection (a) "shall, upon motion of the attorney general or district attorney, be declared forfeit by any court having jurisdiction over said property or having final jurisdiction over any related criminal proceeding brought under any provision of this chapter." [Note 5] Section 47 (b), however, contains no description of such a forfeiture proceeding. Thus, it contains no procedural guidelines, and, more importantly, it does not specify how the property shall be disposed of, apart from directing that controlled substances declared forfeit shall be destroyed. [Note 6]

Like § 47 (b), § 47 (d) also provides for the forfeiture of

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certain categories of property listed in § 47 (a), albeit fewer than § 47 (b). [Note 7] Section 47 (d) allows a district attorney or the Attorney General to "petition the superior court in the name of the commonwealth in the nature of a proceeding in rem to order forfeiture." G. L. c. 94C, § 47 (d), first par. But unlike § 47 (b), § 47 (d) contains detailed procedural requirements, provisions for the sale of forfeited conveyances and real estate, and a mandate that "[t]he final order of the court shall provide that said moneys and the proceeds of any such sale shall be distributed equally between the prosecuting district attorney or attorney general and the city, town or state police department involved in the seizure." § 47 (d), first & second pars. Section 47 (d) then establishes law enforcement trust funds to receive

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these monies for each prosecutorial agency and police department and describes the purposes for which they may be expended. G. L. c. 94C, § 47 (d), third & fourth pars.

In denying the district attorneys' respective requests to deposit the forfeited money in the law enforcement trust funds described in § 47 (d), the judge reasoned that the Superior Court alone, in an in rem proceeding brought under § 47 (d), had authority to direct forfeited funds to the prosecutor and police. He concluded that the District Court, which only has jurisdiction to consider a motion for forfeiture brought under § 47 (b), must look to § 47 (a) to determine disposition of forfeiture proceeds. He further stated that § 47 (a)'s declaration that enumerated property "shall be subject to forfeiture to the commonwealth and all property rights therein shall be in the commonwealth" (emphasis by judge) indicated that all forfeited money must be directed to the General Fund. [Note 8] According to the judge, when the Legislature amended § 47 in 1984 to allow the prosecutor and police to retain forfeited funds, it deliberately made that financial benefit available only in a separate, procedurally enhanced in rem action so as to "make certain [that] plea discussions would not involve law enforcement agencies receiving forfeited funds as a part of a sentencing agreement" and to "avoid even the appearance of impropriety, conflict of interest or a quid pro quo of asset surrenders for favorable prosecution recommendations." He therefore ordered that the monies forfeited by motion brought under § 47 (b), as part of the criminal prosecutions in the underlying cases, be deposited in the Commonwealth's General Fund.

The petitioners filed petitions for relief under G. L. c. 211, § 3, in the county court, seeking orders to have the forfeited funds distributed not to the General Fund but instead to the law enforcement trust funds of the prosecutors and police departments involved in the two cases; the petitions respectively named as respondents the Eastern Hampshire District Court and the Springfield District Court (collectively, respondents). [Note 9] A single

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justice of this court allowed a motion of the respondents to consolidate the two petitions, and reserved and reported them to the full court.

2. Discussion. A survey of the relevant development of § 47 through legislative amendment and judicial interpretation informs our analysis of the statute.

In 1971, the Legislature enacted the Act, and included § 47 as part of the new statutory scheme. St. 1971, c. 1071, § 1. As originally enacted, § 47 (a) provided for forfeiture of four categories of property: (1) controlled substances; (2) "materials, products and equipment . . . used . . . in manufacturing, compounding, processing, delivering, dispensing, distributing, importing or exporting" controlled substances in violation of the Act; (3) conveyances used to transport or otherwise facilitate illegal traffic in controlled substances; and (4) "books, records and research" used in violation of the Act. Id. Under § 47 (b), items described in the first, second, and fourth categories of § 47 (a) could be declared forfeit by any court with jurisdiction over the property or over a related criminal proceeding. Id. Items in the third category of § 47 (a) -- conveyances -- could only be declared forfeit under § 47 (d), by the Superior Court in an in rem proceeding involving procedural protections such as notice, hearing, and an appealable final order. Id. Section 47 (d) provided that the balance of proceeds from any sale of a forfeited conveyance, after payment of the expenses of the forfeiture proceeding and sale, "shall be deposited in the treasury of the commonwealth." Id.

Although the legislative history of the Act fails to shed definitive light on the rationale underlying this bifurcation of forfeiture procedures, it seems reasonable to infer that § 47 (b) and (d) was originally formulated to fit the different characteristics of property forfeitable. It would make sense to enable illegal narcotics and the equipment and documentation necessary for manufacturing and distributing illegal narcotics to be declared forfeit as part of the disposition of the related criminal prosecution, in which they were likely to be used as evidence. No provision for distribution of the proceeds of such forfeitures was

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necessary, because illegal drugs were to be destroyed, and any associated equipment and documentation were not items that would likely produce revenue through sale. Forfeiture of vehicles and other conveyances, by contrast, might reasonably be considered to require the enhanced procedures outlined in § 47 (d), because the owner of the vehicle might in fact be someone other than the criminal defendant, and in any event, whether a vehicle was connected to the illegal drug transactions of its owner may be subject to legitimate dispute. [Note 10] Additionally, § 47 (d) specifically provided for disposition of forfeited conveyances or the proceeds of their sales because vehicles, unlike narcotics and associated equipment, had resale value for the Commonwealth.

However, while this rationale may explain the original separation of forfeiture proceedings in § 47 (b) and (d), subsequent amendments to § 47 soon inserted additional categories of property to the list of items that could be forfeited under § 47 (b), without ever adding any dispositional provisions to § 47 (b). Thus, in 1977, the Legislature amended § 47 to add monies involved in or derived from narcotics transactions to the list of property subject to forfeiture under § 47 (a), St. 1977, c. 556, § 1, and added reference to such monies to both § 47(b) and § 47 (d). [Note 11] See St. 1977, c. 556, §§ 2-3. Since 1977, then, § 47 (b) has allowed for forfeiture of property (money) having undoubted value to the Commonwealth, without making specific provision for its disposition. G. L. c. 94C, § 47 (b), as amended by St. 1977, c. 556, § 2. [Note 12]

The amendment primarily at issue in this case was passed in

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1984. See St. 1984, c. 486, § 2. It deleted the sentence in § 47 (d) providing for the balance of any forfeiture proceeds to be deposited in the treasury of the Commonwealth, and replaced it with an instruction that the proceeds should be divided equally between the prosecuting district attorney or Attorney General and the police department involved in the case, to be expended for law enforcement purposes. Id.

In 1986, this court considered a challenge to a forfeiture of money ordered pursuant to § 47 (b) as part of the criminal proceedings on the related indictments charging violation of the narcotics laws. Commonwealth v. Goldman, 398 Mass. 201, 201-202 (1986) (Goldman). The defendant in Goldman argued that forfeiture could not be effected as part of the criminal proceedings themselves, and that the Commonwealth was required to bring a separate proceeding under § 47 (d). Id. at 202. The court concluded that "the provision in § 47 (b) for the forfeiture of property on order of a judge has independent significance and permits a judge to enter a judgment of forfeiture without the Commonwealth first filing a petition under § 47 (d)." Id. However, the court also held that "[f]undamental due process considerations entitle the defendant to a hearing on the question of the connection, if any, between his illegal drug operations and the funds seized," and directed that the § 47 (b) proceeding should adhere to the provisions of § 47 (d) regarding burden of proof, conclusions of law, and issuance of a final order. Id. at 204 & n.5. The court thus imported some of the

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procedural protections of § 47 (d) to account for the fact that § 47 (b) now covered property -- cash -- in which a defendant might have a legitimate interest unrelated to illegal narcotics activity.

In Commonwealth v. Brown, 426 Mass. 475 (1998) (Brown), this court again considered a challenge to an order forfeiting money under § 47 (b) as part of a related criminal prosecution. [Note 13] The court reaffirmed the holding of Goldman, supra, that "[a]lthough the Commonwealth initiated the proceeding by forfeiture motion filed pursuant to G. L. c. 94C, § 47 (b), the applicable standards of proof are set forth in G. L. c. 94C, § 47 (d)." Brown, supra at 477 n.3. However, while the court in Brown agreed with the defendant that he was entitled to notice in advance of the hearing on a forfeiture motion, it declined to import the "more onerous notice requirements" of § 47 (d), id. at 480 n.5, and, characterizing the forfeiture proceeding under § 47 (b) as itself a "civil proceeding in rem," id. at 483, applied instead the notice requirements applicable by rule to motions filed in other civil proceedings. Id. at 480 & n.5. What Goldman and Brown thus establish is that forfeiture proceedings brought pursuant to motions under subsection (b) of § 47 are civil in nature and must provide certain procedural protections to the defendant, and that we look to § 47 (d) for many, but not all, of the applicable protective procedures. [Note 14]

In sum, the Legislature has amended § 47 over time to expand what can be forfeited under § 47 (b) without any addition of dispositional language, while at the same time changing, with great specificity, the dispositional provisions in § 47 (d). Meanwhile, this court's opinions have held that forfeiture can certainly

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be ordered under § 47 (b), independently of § 47 (d), but have generally not dealt with the question of disposition. It is against this background that we consider the arguments made by the parties.

The petitioners argue that because this court's decisions in Goldman and Brown, supra, have grafted the procedural provisions of § 47 (d) (including the requirement of a "final order" deemed important by the District Court judge [see note 8, supra]), onto § 47 (b) motion proceedings, we should also import the distributional provisions of § 47 (d) to govern § 47 (b) forfeitures. However, the court in Brown, in permitting more relaxed notice procedures under § 47 (b), explicitly declined to incorporate all of § 47 (d)'s procedural provisions directly into § 47 (b). Brown, 426 Mass. at 480 n.5. Moreover, the reasons that require the importation of some § 47 (d) procedures into § 47 (b) -- namely, to provide due process protections in relation to assets in which a defendant in the criminal case could plausibly have a legitimate property interest -- do not justify the importation of its distributional provisions as well. How the Commonwealth disposes of such assets once they have been declared forfeit in a proper proceeding has no bearing on the rights of the former owner; the logic of Goldman and Brown does not extend to § 47 (d)'s provisions regarding distribution of forfeited property.

However, the interpretation of the statute adopted by the judge and advanced here by the respondents is itself not convincing. As has been noted, the 1984 amendment to § 47 added the provision to § 47 (d) directing that forfeited monies or the proceeds from the sale of other forfeited property be divided between the prosecutor and the police department involved in the case. St. 1984, c. 486, § 2. The judge determined that the Legislature specifically intended to separate criminal prosecutions from related forfeiture proceedings in which the prosecutor stood to benefit financially in order to avoid unseemly conflict of interest issues on the part of the prosecutor. Our review of the available legislative history of this amendment reveals nothing that might serve as evidence of the intention the judge ascribed to the Legislature. Indeed, it seems equally plausible that

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the Legislature amended § 47 (d) without amending § 47 (b) because only § 47 (d) contained the provision targeted for replacement, namely, the sentence directing proceeds to the State treasury. [Note 15] As for textual analysis, the judge's interpretation rests on the view that § 47 (a) is the key provision and that the language "all property rights [in forfeited items] shall be in the commonwealth" indicates that forfeited property must be deposited in the General Fund. This construction misreads § 47 (a). Tracking, or at least analogous to, its Federal counterpart, [Note 16] § 47 (a) simply identifies the types of property that are subject to forfeiture; it says nothing with regard to disposition. Indeed, the interpretation urged by the judge and the respondents makes little sense, because it is difficult to see how many of the categories of forfeitable property listed under § 47 (a), such as, for example, drug-manufacturing equipment and records, or real estate, could have any relationship to the General Fund. [Note 17]

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We are confronted, then, in § 47 (b), with a statute that over time has been amended to authorize a court to order a wide variety of property forfeited to the Commonwealth but, from the time of its original enactment, has never provided any direction as to the disposition of that property (with the exception of illegal narcotics). As already explained, it appears that the absence of any distributional provision in § 47 (b) may be an artifact of its original use solely for forfeiture of items that were likely to have no monetary value to the Commonwealth. Likewise, the Legislature's placement of the provision directing funds to the prosecutor and police only in § 47 (d) may reflect the fact that, because the only dispositional provisions in the statute were in § 47 (d), all changes to disposition have been changes to § 47 (d). In the absence of any indication that the Legislature intended different treatment of assets forfeited under § 47 (b) once it had been expanded to encompass items with residual value, we conclude that the Legislature intended that all assets forfeited pursuant to § 47 would be distributed according to the provisions outlined in § 47 (d). [Note 18]

Wherever possible, "statutes should be interpreted as a whole to constitute a consistent and harmonious provision." Kargman v. Commissioner of Revenue, 389 Mass. 784, 788 (1983). "[I]t is our task to construe the statute in such a way as to make it an effective piece of legislation, . . . and in that connection every phrase should be given some effect" (citations omitted). Commonwealth v. Mercy Hosp., 364 Mass. 515, 521 (1974). In this case, the sensible reading, as the legislative history and this court's prior decisions seem to support, is that § 47 (d) supplies the dispositional provisions for forfeitures under § 47, regardless whether the forfeiture is effected pursuant to § 47 (d) or § 47 (b). [Note 19] The cases are remanded to the single justice to enter

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an order vacating the judge's orders directing that money forfeited under § 47 (b) be deposited in the General Fund as contrary to law.

So ordered.