author:
LANSING, Judge.
      WILLIS, Judge

text:
    STATE of Minnesota, Appellant v. Daniel Alan KUHLMAN, Respondent.
    No. A06-568.
    Court of Appeals of Minnesota.
    Sept. 22, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Jay M. Heffern, Minneapolis City Attorney, Mary Ellen Heng, Assistant City Attorney, Minneapolis, MN, for appellant.
    Howard Bass, Bass Law Firm, P.L.L.C., Burnsville, MN, for respondent.
    Faison T. Sessoms Jr., Minneapolis, MN, for amicus curiae Minnesota Association of Criminal Defense Lawyers.
    Considered and decided by LANSING, Presiding Judge; RANDALL, Judge; and WILLIS, Judge.
   OPINION

LANSING, Judge.

In August 2005, a Minneapolis traffic camera recorded a vehicle failing to stop at a red light. Daniel Kuhlman, the respondent, owned the vehicle and was issued a citation under the city’s photo-enforcement ordinance. The district court granted Kuhlman’s motion to dismiss and the city appeals. The city also moves to strike information in the appendix of the amicus brief. We deny the motion to strike and affirm the district court’s decision.

FACTS

In September 2004, the Minneapolis City Council enacted sections 474.620 to 474.670 of the Minneapolis Code of Ordinances, providing for the automated enforcement of traffic signals at certain city intersections, through the use of cameras that capture images of vehicles violating traffic signals. Minneapolis, Minn., Code of Ordinances §§ 474.620-.670 (2004). The Minneapolis photo-enforcement system provides for the use of a camera, installed at the intersection, to produce photographic, video, or digital images of the back of the vehicle to obtain its registration-plate number. If the recorded image detects a violation of a traffic-control signal, a peace officer may issue a citation to the owner or lessee of the vehicle through the United States mail. The ordinance definition of what constitutes a traffic-signal violation is nearly identical to the definition in Minn. Stat. § 169.06, subd. 5 (Supp.2005).

In section 474.660, entitled “Evidence,” the Minneapolis ordinance provides that the recorded image, together with proof of the vehicle’s ownership or leased status, constitutes a rebuttable presumption that the owner or lessee was the person who committed the violation. The presumption may be rebutted by a sworn affidavit of non-ownership accompanied by the name and current address of the person operating the vehicle at the time of the violation or a copy of a police report showing the vehicle had been reported stolen before the violation. The “Evidence” section also provides that if the city finds that the person named in the citation was not operating the vehicle at the time of the violation, the city shall issue a citation through the United States mail to the person the affidavit identifies as the driver.

In August 2005, a camera at the intersection of West Broadway Avenue and Lyndale Avenue North in Minneapolis captured the image of a vehicle failing to stop at a red light. The vehicle was owned by Daniel Alan Kuhlman. The Minneapolis police department cited Kuhlman for failing to stop at a red light at an intersection, in violation of section 474.640. Kuhlman pleaded not guilty and subsequently moved to dismiss the charge, arguing that Minneapolis’s “automated traffic law enforcement system ordinances are invalid because they conflict with state law, and are unconstitutional because they violate the due process rights of registered owners of motor vehicles.”

The district court granted Kuhlman’s motion to dismiss, concluding that the Minneapolis photo-enforcement ordinance is preempted by state laws regulating traffic. The district court found that the Minneapolis ordinance covers the same subject as the state traffic-signal statute, but the ordinance provides a lesser standard of due process protection to vehicle owners because the rebuttable presumption denies them the presumption of innocence: “[T]he owner is presumed to be the driver and must prove that someone else was driving in order to avoid a conviction.” The district court also noted that, because the Hennepin County District Court'must certify a record of the ordinance conviction to the Minnesota Department of Public Safety, the conviction will appear on the owner’s driving record and provide a basis for the enhancement of future driving violations. Minn. Stat §§ 169.95(b), 171.16, subd. 1 (2004). These convictions can trigger a driver’s-license suspension under Minn. R. § 7409.2200 (2005). The city appeals from this determination.

ISSUES

I. Should this court grant the city’s motion to strike the portions of the ami-cus brief that are not part of the district court record?

II. Does the Minnesota Highway Traffic Regulation Act preempt Minneapolis’s photo-enforcement ordinance?

ANALYSIS

I

As a preliminary matter, the city has moved to strike two sections of the amicus brief appendix submitted by the Minnesota Association of Criminal Defense Lawyers. The city argues that the challenged portions are not part of the district court record. An amicus brief, however, may provide articles and information that are in the public domain and may have escaped a reviewing court’s attention. Camacho v. Todd & Leiser Homes, 706 N.W.2d 49, 52 n. 3 (Minn.2005). Because the challenged sections of the appendix to the amicus brief are articles in the public domain, we deny the motion to strike.

II

This case is essentially a controversy over the division of power between individual cities and the state. This division of powers is governed by the preemption doctrine, which developed by analogy to federal Supremacy Clause cases. See Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 356, 143 N.W.2d 813, 819 (1966). The question of. whether a state statute preempts a city ordinance is a question of law, which we review de novo. Haumant v. Griffin, 699 N.W.2d 774, 777 (Minn.App.2005), review denied (Minn. Aug. 24, 2005).

State statutes may preempt a local ordinance in three ways: (1) express preemption, when the state statute explicitly defines the extent to which its enactments preempt local regulation; (2) field preemption, when a city ordinance attempts to regulate conduct in a field that the state legislature intended the state law to exclusively occupy; and (3) conflict preemption, when a city ordinance permits what a state statute forbids or forbids what a statute permits. See English v. General Elec. Co., 496 U.S. 72, 78-80, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990) (discussing federal preemption doctrines); Mangold, 274 Minn. at 352, 356-57, 143 N.W.2d at 816, 819-820 (discussing state field and conflict preemption doctrines).

In this case, there is no question that Minneapolis has some power to enact traffic regulations. Minneapolis is a home-rule-charter city and its charter contains a general-welfare clause. Minneapolis, Minn., City Charter ch. 1, § 2 (2004). Regulation of traffic falls under this clause. State v. Sugarman, 126 Minn. 477, 479, 148 N.W. 466, 466-67 (1914). As a home-rule city, Minneapolis is expressly authorized to regulate parking, use traffic-control signals, regulate processions, designate one-way streets, identify through highways, and regulate certain uses of trucks. In addition, the Minnesota Highway Traffic Regulation Act permits cities to enact traffic ordinances that are not “in conflict” with the Act, so long as the penalty is the same as the penalty for the state offense. Minn.Stat. § 169.022 (2004).

The controversy centers, instead, on the degree to which Minneapolis’s power is preempted or limited by the Minnesota Highway Traffic Regulation Act. Under Minnesota law, the Act’s provisions “shall be applicable and uniform throughout this state ... and no .local authority shall enact or enforce any rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein.” Minn.Stat. § 169.022.

This statutory language expressly preempts local traffic regulations that are “in conflict” with the Minnesota Highway Traffic Regulation Act. In City of St. Paul v. Olson, the supreme court noted that the legislature “did not intend to preempt the field of highway traffic regulation entirely.” 300 Minn. 455, 456, 220 N.W.2d 484, 485 (1974). Nonetheless, the language of section 169.022 substantially limits a city’s power to enact traffic regulations. The Act restricts a city’s power to enact traffic ordinances to “the limited local regulation the statute expressly permitted.” Mangold, 274 Minn. at 359, 143 N.W.2d at 821 (discussing State v. Hoben, 256 Minn. 436, 98 N.W.2d 813 (Minn.1959)). The extent of express preemption is a question of statutory interpretation. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96, 103 S.Ct. 2890, 2899, 77 L.Ed.2d 490 (1983). Within this, framework we address whether Minneapolis’s photo-enforcement ordinance is “in conflict” under section 169.022.

In interpreting the phrase “in conflict,” we first look to the text of the Minnesota Highway Traffic Regulation Act. Section 169.04 expressly authorizes a city to regulate “traffic by means of police officers or traffic-control signals.” Minn.Stat. § 169.04(a)(2) (2004). But the terms “police officer” and “traffic control signal” are narrowly defined. Minn.Stat. § 169.01, subds. 27, 42 (2004). A “traffic control signal” is only a device “by which traffic is alternately directed to stop and permitted to proceed.” Id., subd. 42. The language in this definition does not cover photo-enforcement, and we conclude that photo-enforcement is not expressly authorized. Instead our analysis is guided by two longstanding interpretations of section 169.022.

First, a local traffic ordinance is “in conflict” if the ordinance interferes with statewide uniformity by prohibiting conduct that is not prohibited in the rest of the state. In Duffy v. Martin, 265 Minn. 248, 255, 121 N.W.2d 343, 348 (1963), the supreme court held that a Minneapolis ordinance was “in conflict” within the meaning of the Minnesota Highway Traffic Regulation Act because the ordinance added a requirement that drivers use a turn signal before entering traffic. The supreme court reasoned that the purpose of the Act’s uniformity requirement is to enable a driver “to proceed in all parts of the state without the risk of violating an ordinance with which he is not familiar.” Id.

The city argues that we should apply the definition of “conflict” found in Mangold. Under Mangold, an ordinance does not conflict with a statute when “the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute.” 274 Minn. at 352, 143 N.W.2d at 817. But Mangold involved a question that arose under the general conflict-preemption doctrine, not under an express preemption provision. In fact, Mangold specifically distinguished cases arising under the Minnesota Highway Traffic Regulation Act, noting the Act’s emphasis on uniformity and statewide application. 274 Minn. at 359, 143 N.W.2d at 821.

Second, a local ordinance is “in conflict” with the Minnesota Highway Traffic Regulation Act if the ordinance permits significantly different procedures to be used to prosecute the same conduct. Hoben, 256 Minn. at 444, 98 N.W.2d at 818. In Hoben, the court concluded that an Edina DUI ordinance conflicted with the state DUI statute because a defendant would be denied the right to a jury trial in the municipal court. Id. at 444, 98 N.W.2d at 819. The supreme court reasoned that:

It would be a strange anomaly for the legislature to define a crime, specify punishment therefor, provide that its application shall be uniform throughout the state, and then permit a municipality to prosecute that crime as a civil offense. Basic civil rights of the defendant would then depend upon the arbitrary choice of the prosecutive authorities as to the court in which action against him would be instituted.

Id., 98 N.W.2d at 818-19. The court held that, under a predecessor to section 169.022, the regulation of traffic offenses must be uniform “both as to penalties and procedures.” Id. at 444, 98 N.W.2d at 818. Because the traffic act’s provisions are applicable and uniform throughout the state, and local ordinances must have identical penalties, “the legislature intended that the procedures used in the prosecution of such ordinances must likewise be uniform throughout the state.... ” State ex rel. Sheahan v. Mulally, 257 Minn. 27, 29, 99 N.W.2d 892, 893-94 (1959).

The city argues that Hoben simply requires the city to use the state rules of criminal procedure when prosecuting traffic offenses. While Hoben does require the city to use the state criminal-procedure rules, the language in Hoben is focused on uniformity, not due process or the rules of criminal procedure. Furthermore, subsequent cases have consistently explained that the Hoben decision was based on uniformity and preemption principles. In Mangold, the supreme court noted that in Hoben “the provision requiring uniformity and statewide application clearly showed the legislative intent to preempt this field except for the limited local regulation the statute expressly permitted.” 274 Minn. at 359, 143 N.W.2d at 821. In Sheahan, the court noted, “At the risk of repetition we may observe that we held in the Hoben case that under the provisions of [the Minnesota Highway Traffic Regulation Act] prosecutions of traffic violations are to have uniform treatment throughout the state....” 257 Minn. at 30, 99 N.W.2d at 894. Similarly, in State v. Paulick, the supreme court observed that Hoben “held that traffic violations were a matter of statewide concern and must be dealt with in a uniform manner.” 277 Minn. 140, 145, 151 N.W.2d 591, 595 (1967). Each of these cases emphasizes the need for uniformity. There is no indication that this uniformity should be limited to application of the rules of criminal procedure. We therefore reject the city’s narrow interpretation of Hoben.

We now turn to the application of these standards to Minneapolis’s photo-enforcement ordinance. We conclude that the ordinance is “in conflict” with section 169.022 for two reasons. First, accepting for purposes of analysis the city’s argument that the ordinance only creates liability for vehicle owners, an owner-liability ordinance would prevent uniform traffic regulation and would therefore conflict with the Minnesota Highway Traffic Regulation Act. Like the Duffy ordinance, Minneapolis’s regulation would hinder intrastate travel by creating the risk of unexpected liability. We recognize that the Minnesota state legislature has, in two circumstances, made owners liable for the conduct of drivers. See Minn.Stat. §§ 169.20, subd. 5b (owners liable for failure to yield to emergency vehicles), .444, subd. 6 (owners liable for violations of school-bus-safety law) (2004); see also State v. Eakins, 720 N.W.2d 597 (Minn.App.2006) (rejecting due process challenge to § 169.444). But it is the Minneapolis City Council, not the Minnesota legislature, that has created the owner liability under the photo-enforcement ordinance. Minnesota law does not permit individual cities to unilaterally regulate traffic in a way that would create a checkerboard of liability across the state.

Second, the city’s characterization of the photo-enforcement ordinance as an owner-liability ordinance misrepresents its actual operation. As written, the photo-enforcement ordinance is fundamentally an alternative method of apprehending and prosecuting drivers who do not obey Minneapolis traffic signals. Ordinance section 474.640 is a circular enactment that functionally rewrites the state traffic-signal law under the guise of an owner-liability ordinance. “It is impossible to avoid the conclusion that the city has attempted to do by indirect means ... what it could not do directly.” State v. Elofson, 86 Minn. 103, 107-08, 90 N.W. 309, 311 (1902) (addressing conflicting exercise of power between the state and local units of government). Ordinance section 474.640, which creates owner liability, was enacted in tandem with section 474.660, which states:

(a) In the prosecution of a violation, as set forth by section 474.640, captured by an automated traffic law enforcement system, prima facie evidence that the vehicle described in the citation was operated in violation of this section, together with proof that the defendant was at the time of such violation the owner or lessee of the vehicle, shall constitute in evidence a rebuttable presumption that such owner or lessee was the person who committed the violation. The presumption shall be rebutted if the owner or lessee:
(1) Provides a sworn affidavit delivered by United States mail to the city or agency that he or she was not the owner or lessee of the vehicle at the time of the alleged violation and provides the name and current address of the person operating the motor vehicle at the time of the violation; or
(2) Submits a copy of a police report showing the vehicle had been reported as stolen in a timely manner before the date of the violation.
(b) If the city or agency finds that the person named in the citation was not operating the vehicle at the time of the violation or receives evidence under paragraph (a)(1) of this section identifying the person driving the vehicle at the time of the violation, the city or agency shall issue a citation to the identified driver through the United States mail, no later than fourteen (14) days after receipt of this information.

Minneapolis, Minn., Code of Ordinances § 474.660.

The exact meaning of the ordinance is far from clear. The meaning of section 474.660(a)(1) is particularly elusive. As the district court noted, “This provision makes little sense.” In the district court, the city argued that section 474.660 creates an affirmative defense for owners. On appeal, the city has argued that section 474.660 is an administrative directive requiring the city officials to dismiss the citation if the owner shows he was not the driver. In addition, section 474.660(b) might be literally interpreted as expanding liability to drivers rather than exculpating vehicle owners. But this interpretation has not been advanced by the city, and, in the district court, the city submitted an affidavit indicating its policy was to dismiss citations against the owner if a citation is issued against the driver. The district court concluded that section 474.660 creates a rebuttable presumption that the owner was the driver. We agree with the district court’s procedural conclusion. But the substantive effect is equally important: as long as the owner can show that he was not the driver, the owner will not be punished, and the driver will receive a citation. See Minneapolis, Minn., Code of Ordinances § 474.660(b). Minneapolis’s photo-enforcement ordinance therefore creates a circular but parallel system for enforcing traffic-signal violations against drivers.

The effect of the photo-enforcement ordinance is to regulate the same conduct as the Minnesota Highway Traffic Regulation Act. See Minn.Stat. § 169.06, subd. 4(a) (2004) (requiring drivers to obey traffic signals). But the Minneapolis ordinance and the state statute have conflicting burdens of proof. Under the state statute, an element of the crime is that the defendant was the driver. Under ordinance section 474.660, in contrast, the defendant must establish that he was not the driver and that someone else was. This type of procedural conflict is inconsistent with the uniformity requirement of the Minnesota Highway Traffic Regulation Act. Hoben, 256 Minn. at 444, 98 N.W.2d at 818. It would be a “strange anomaly” for the legislature to define a crime, specify a punishment, provide that its application shall be uniform throughout the state, and then permit a city to change the elements of the offense. Hoben, 256 Minn. at 444, 98 N.W.2d at 819.

Finally, we reject the city’s argument that ordinance section 474.660 can be severed from the rest of the photo-enforcement ordinance. Because severing section 474.660 would expand and alter the class of persons liable under the photo-enforcement ordinance, we cannot presume the city council would have enacted the remaining provisions without section 474.660. Therefore, we cannot sever the ordinance. See Minn.Stat. § 645.20 (2004) (discussing severance of statutes).

This interpretation of “in conflict” recognizes the significant limitations on a city’s power to enact traffic regulations. But the city’s power to enact ordinances that cover the same conduct as the Minnesota Highway Traffic Regulation Act is not superfluous. By allowing cities to regulate the same conduct, the state obtains the advantage of concurrent enforcement by cities. See Hoben, 256 Minn. at 443, 98 N.W.2d at 818. More importantly, cities do retain significant power to regulate traffic. At a minimum, an ordinance is not “in conflict” if it covers specifically what the traffic act covers generally. Olson, 300 Minn. at 457, 220 N.W.2d at 485. In addition, section 169.022 does not preempt local regulation if it is expressly authorized. Cities can still enact traffic regulations that fall into one of the six categories expressly authorized in section 169.04. This interpretation of the Minnesota Highway Traffic Regulation Act maintains the appropriate balance between the need for statewide uniformity and local control.

For these reasons, we conclude that the Minneapolis photo-enforcement ordinance is invalid. It is, however, important to emphasize that our decision does not determine the general validity or invalidity of photo-enforcement of traffic violations. We are presented solely with the question of whether the Minneapolis photo-enforcement ordinance conflicts with the preemption provisions in Minn.Stat. § 169.022. As the district court noted, the automated-traffic-enforcement systems that have been upheld against legal challenges by vehicle owners are cases in which the state, rather than a local unit of government, enacted the vehicle-owner-liability legislation. See City of Wilmington v. Minella, 879 A.2d 656 (Del.Super.Ct.2005) (Wilmington, Del.); Shavitz v. City of High Point, 270 F.Supp.2d 702 (D.N.C.2003); vacated on other grounds sub nom. Shavitz v. Guilford County Bd. of Educ., 100 Fed. App’x 146 (4th Cir.2004) (High Point, N.C.); State v. Dahl, 336 Or. 481, 87 P.3d 650 (2004) (Portland, Or.); see also Agomo v. Williams, 2003 WL 21949593 (D.C.Super.2003) (Washington, D.C.). But cf. State ex rel. Scott v. Cleveland, 166 Ohio App.3d 293, 850 N.E.2d 747 (2006) (denying writ of prohibition because no controlling authority established that Cleveland is “patently and unambiguously without jurisdiction” to use automated-speeding-enforcement system). Several attempts have been made to pass enabling legislation for automated-traffic-law-enforcement systems in Minnesota, but none of the proposed legislation has been enacted into law. See S.F. 1017 (2001); H.F. 508 (2003); H.F. 650 (2003); S.F. 439 (2003); S.F. 608 (2003).

Because the Minneapolis ordinance is in conflict with the Minnesota Highway Traffic Regulation Act, we affirm the district court’s dismissal of the charge against Kuhlman. We, therefore, do not reach Kuhlman’s due process arguments. See State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981) (providing that courts do not decide constitutional questions except when necessary to dispose of case).

DECISION

Under Minnesota law, the Minneapolis photo-enforcement ordinance conflicts with the Minnesota Highway Traffic Regulation Act. Because the photo-enforcement ordinance is inconsistent with the Act’s uniformity requirement and changes the burden of proof provided by Minn.Stat. § 169.06, subd. 4 (2004), the Minneapolis ordinance is invalid under Minn.Stat. § 169.022 (2004).

Affirmed; motion denied.

WILLIS, Judge

(concurring specially).

I concur in the opinion, but I write specially to underscore what I perceive to be a major flaw in section 474.660(a)(1) of the Minneapolis ordinance at issue. That subdivision provides the first of two methods by which the owner or lessee of a motor vehicle may rebut the presumption that he or she was the driver of the vehicle when it ran a red light.

Section 474.660(a)(1) provides that the presumption can be rebutted if the owner or lessee “[pjrovides a sworn affidavit by United States mail to the city or agency that he or she was not the owner or lessee of the vehicle at the time of the alleged violation and provides the name and current address of the person operating the motor vehicle at the time of the violation.” As our opinion notes, “[t]he meaning of section 474.660(a)(1) is particularly elusive,” and we also note the district court’s comment that “[t]his provision makes little sense.” The city argued before this court that section 474.660 is an administrative directive requiring the dismissal of a citation if the owner of a vehicle shows that he was not the driver at the time of the violation. But that is not what section 474.660(a)(1) says. The requirement is not the submission of an affidavit that the owner or lessee of the vehicle was not the driver at the time of the violation but rather an affidavit that the owner or lessee was not the owner or lessee of the vehicle at the time of the alleged violation and submission of the “current address of the person operating the motor vehicle at the time of the violation.” This creates an impossible burden. If the affiant was neither the owner nor the lessee of the vehicle at the time of the alleged violation, it is difficult to imagine circumstances in which the affiant would know the identity of the person who was operating the vehicle at the time of the violation. I would go the district court one better: The provision makes no sense.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. MEIERHENRY, Justice SABERS, Justice

license: Public Domain

text:
    2006 SD 83
    In the Matter of the ESTATE OF Henry SIEBRASSE, Deceased.
    Nos. 23832, 23855, 24082.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2006.
    Decided Aug. 30, 2006.

      Kennith L. Gosch and Melissa E. Neville of Bantz, Gosch & Cremer, Aberdeen, South Dakota, Attorneys for appellant Delbert Siebrasse.
    Sara L. Larson, Jeffrey G. Hurd and John H. Raforth of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Craig E. Smith, Neumayr & Smith, Gettysburg, South Dakota, Attorneys for appellee Estate and Donald Sie-brasse.
   GILBERTSON, Chief Justice.

[¶ 1.] Delbert Siebrasse appeals contending the circuit court erred on remand in (1) denying his request for attorney’s fees, expenses and disbursements; and (2) apportioning the federal estate tax and tax refund. The Estate of Henry Siebrasse (Estate) has filed a notice of review contending the circuit court erred in awarding Delbert a prior interest amount on the basis of res judicata.

BACKGROUND

[¶ 2.] This is the fourth appeal in this ongoing probate dispute. In Estate of Siebrasse, 2004 SD 46, 678 N.W.2d 822 (hereinafter Siebrasse III), this Court addressed the division of a federal estate tax refund obtained as a result of Delbert’s efforts. The Internal Revenue Service (IRS) had refunded $75,525 in estate tax and $18,055.18 in interest as a result of Delbert’s claimed over-valuation of real estate devised to him. Id. ¶ 6. In reversing the circuit court, this Court held that the refund amount was required to be “apportioned among all of the devisees of the Estate.” Id. ¶ 21. In addition, we affirmed the denial of attorney’s fees to Delbert because the circuit court’s decision to give the entire refund to Delbert did not benefit the estate and, therefore, no award was justified on those facts. Id. ¶ 27. However, the circuit court was instructed to reconsider the issue of attorney’s fees on remand in light of the holding that the refund must be apportioned among the beneficiaries, as the estate may benefit from such a result. Id. ¶ 29. Further, this Court held that the interest amount represented by the refund was available for equitable apportionment. Id. ¶ 23. The circuit court had equitably apportioned the entire interest amount to Delbert and that decision was affirmed. Id. ¶ 24.

[¶ 3.] Following our decision, Delbert remitted the $75,525 to the estate for apportionment. No action was taken by Estate and Delbert filed a motion for apportionment in circuit court. In the time between this Court’s decision in Siebrasse III, and the motion for apportionment, the IRS was re-examining the refund previously obtained by Delbert. The circuit court found that the IRS denied Delbert’s claim following the reexamination. This was indicated by a revised schedule J. That document shows that the IRS increased the value of the real estate by $147,888 to reflect the denial of the refund claim based on the over-valuation. The revised schedule also reflects increased deductions for administrative expenses in the amount of $157,401 consisting of the estate’s increased legal expenses.

[¶ 4.] Delbert’s real estate valuation was found to be $317,200 on remand. Utilizing that amount, the circuit court recalculated the apportionment of federal estate tax liability. However, the circuit court concluded that its prior allocation of the interest refund to Delbert was res judicata based on this Court’s holding in Siebrasse III. In addition, because his claim was now considered rejected by the IRS, the circuit court found Delbert provided no benefit to the estate by pursuing the matter and denied an award of attorney’s fees or expenses.

[¶ 5.] Delbert appeals raising the following issues:

Whether the estate tax refund was of substantial benefit to the estate such that Delbert is entitled to attorney’s fees, expenses and disbursements. Whether the circuit court incorrectly apportioned the federal estate tax and tax refund.

[¶ 6.] By notice of review, Estate raises the following issue:

Whether the circuit court erred in determining the prior award of interest to Delbert was res judicata.

ANALYSIS

ISSUE ONE

[¶ 7.] Whether the estate tax refund was of substantial benefit to the estate such that Delbert is entitled to attorney’s fees, expenses and disbursements.

[¶ 8.] SDCL 29A-3-720 provides that a court may award “necessary expenses and disbursements, including reasonable attorney’s fees, to any person who prosecuted or defended an action that resulted in a substantial benefit to the estate.” This Court had previously utilized a two-prong test for entitlement to attorney’s fees: “(1) the services rendered must be beneficial to the estate; and (2) the services must be necessary because of the negligence, fraud or failure to defend an interest of the estate by the personal representative of the estate.” Siebrasse III, 2004 SD 46, ¶ 26, 678 N.W.2d at 829 (citing In re Hafferman, 442 N.W.2d 238 (S.D.1989)). This was the test utilized by both the circuit court in addressing this issue and the parties briefing this matter. However, as recently explained in Wagner v. Brownlee, 2006 SD 38, ¶ 15, 713 N.W.2d 592, 597, SDCL 29A-3-720 abrogated this two prong test in favor of a single prong test to determine an award of attorney’s fees: “that the services result in a substantial benefit to the estate.”

[¶ 9.] This matter was initially remanded for reconsideration of attorney’s fees in light of a tax refund obtained by Delbert. Subsequently, the circuit court found the IRS had denied Delbert’s refund claim, a claim that was of primary importance in deciding Siebrasse III. The circuit court found that as a result of this denial Delbert ultimately provided no benefit to the estate. In addition, because of this denial the circuit court found the personal representative did not act negligently as the IRS ultimately agreed with the personal representative’s rejection of Delbert’s appraisal.

[¶ 10.] The circuit court’s discussion of this second prong concerning whether the personal representative acted negligently in analyzing the request for attorney’s fees was not an application of the correct legal standard. Wagner, 2006 SD 38, ¶ 15, 713 N.W.2d at 597. Nevertheless, any analysis of the second prong was superfluous. The circuit court had already determined that Delbert’s action provided no benefit to the estate. This is supported by the fact that his claim for a reduced real estate valuation was denied by the IRS. Consequently, Delbert was not entitled to an award of attorney’s fees, expenses and disbursements pursuant to SDCL 29A-3-720.

[¶ 11.] The circuit court’s decision is affirmed.

ISSUE TWO

[¶ 12.] Whether the circuit court correctly apportioned the federal estate tax and tax refund.

[¶ 13.] “South Dakota adopted the Uniform Probate Code, including SDCL 29A-3-916(b), which continues to provide for equitable apportionment of federal estate taxes so that each specific share, interest or legacy bears its proportionate part of the federal estate taxes.” Siebrasse III, 2004 SD 46, ¶ 19, 678 N.W.2d at 827. That statute provides in relevant part:

The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent’s will directs a method of apportionment of tax different from the method described in this code, the method described in the will controls.

SDCL 29A-3-916(b). In Siebrasse III, we reversed the circuit court’s decision to grant the entire refund to Delbert so that amount could be divided in proportion to the federal estate tax liability as then reflected. 2004 SD 46, ¶ 24, 678 N.W.2d at 828. This holding was based on the specific language of SDCL 29A-3-916(b). Id. We are mindful that circumstances have changed in this case since that decision as reflected by the circuit court’s findings of fact. The circuit court’s decision to apportion the federal estate tax as reflected on the revised schedule was proper. This revised apportionment is consistent with both our rationale in Siebrasse III and SDCL 29A-3-916(b) as applied to the facts now presented. The decision of the circuit court is affirmed.

ISSUE THREE

[¶ 14.] Whether the circuit court erred in holding the prior award of interest to Delbert was res judicata.

[¶ 15.] SDCL 29A-3-916(c)(2) allows a court to equitably apportion interest and penalties. After Delbert prosecuted and successfully obtained the tax refund the circuit court determined that equity demanded the entire amount of interest be awarded to him. This Court affirmed that decision in Siebrasse III, and remanded on other issues. 2004 SD 46, ¶ 24, 678 N.W.2d at 828. The circuit court determined the interest amount awarded to Delbert was res judicata based on this previous decision. Estate contends that the circuit court’s decision to leave the interest award to Delbert intact as res judicata was erroneous. Because the doctrine of res judicata does not apply in this situation, we reverse the circuit court and remand for a pro rata distribution of those amounts previously represented as an interest award.

[¶ 16.] In analyzing this issue it is important for this Court to clarify the differences between res judicata and the related doctrine of “law of the case.” See e.g., Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105-06 (Fla.2001) (discussing the distinction between these two related, but distinct, doctrines). “Res judi-cata bars an attempt to relitigate a prior determined cause of action by the parties, or one of the parties in privity, to a party in the earlier suit.” Black Hills Jewelry Mfg. Co. v. Felco Jewel Industries, Inc., 336 N.W.2d 153, 157 (S.D.1983). Whereas, “[i]t is a general rule, long recognized in this state, that a question of law decided by the supreme court on a former appeal becomes the law of the case, in all its subsequent stages, and will not ordinarily be considered or reversed on a second appeal when the facts and the questions of law presented are substantially the same.” Jordan v. O’Brien, 70 S.D. 393, 396, 18 N.W.2d 30, 31 (1945). The “law of the case” doctrine “is the weaker corollary of the doctrines of res judicata, collateral es-toppel and stare decisis and is intended to prove some degree of certainty where those doctrines could not yet apply.” Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 260 (S.D.1976) (overruled on other grounds); Western States Land & Cattle Co. v. Lexington Ins. Co., 459 N.W.2d 429, 435 (S.D.1990). As we have observed:

Although the principles of the law of the case doctrine and res judicata are similar, their application differs. The law of the case rule involves the effect of a previous ruling within one action on a similar issue of law raised subsequently within the same action. The rules of res judicata apply to previous rulings in an action on a similar determination in a subsequent action.

State v. Lowther, 434 N.W.2d 747, 752 n. 7 (S.D.1989). “Where successive appeals are taken in the same case there is no question of res judicata, because the same suit, and not a new and different one, is involved.” Florida Dep’t of Transp., 801 So.2d at 105. This is the situation in this case and, therefore, we analyze this issue under the “law of the case” doctrine to determine if the interest award should remain intact as the “law of the case.”

[¶ 17.] “The ‘law of the case’ doctrine is intended to afford a measure of finality to litigated issues. It is a rule of practice and procedure which for policy reasons provides that once an issue is litigated and decided it should remain settled for all subsequent stages of the litigation.”

Western States Land & Cattle Co., 459 N.W.2d at 435. “The doctrine of the ‘law of the case’ is not a rigid rule, and will not be invoked on a second appeal if the prior decision is ‘palpably erroneous’ and if it ‘is competent for the court to correct it on the second appeal.’ ” Estate of Jetter, 1999 SD 33, ¶ 21, 590 N.W.2d 254, 259. “The ‘law of the case’ does not rigidly bind a court to its former decisions, but is only addressed to its good sense.” Id. In this regard, “[a] court may reopen a previously resolved question if the evidence on remand is substantially different or if a manifest injustice would otherwise result.” Id. ¶ 27. See also Fandrich v. Wells County Board of County Commissioners, 618 N.W.2d 166, 174 (N.D.2000); Grievance Administrator v. Lopatin, 462 Mich. 235, 612 N.W.2d 120, 134 (2000); Beeck v. Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149, 154 (Iowa 1984); Sauer v. Scott, 238 N.W.2d 339, 342 (Iowa 1976) (recognizing “law of the case” only applies when the evidence on the subsequent appeal is substantially the same as that on the preceding appeal).

[¶ 18.] The existence of a tax refund and its accompanying interest award was a lynchpin underlying this Court’s decision in Siebrasse III. Given the substantial change of circumstances in this case as reflected by the circuit court’s findings, the issue as then decided is only marginally related to the current appeal. Logically, there can be no award of interest on a refund that now does not exist. Any holding to the contrary would be inconsistent with our analysis under issues one and two and the circuit court’s finding that the tax refund was ultimately denied by the IRS. We hold that our prior decision is not binding as the “law of the case” in light of the substantial change of facts since our prior decision in this matter and remand for a pro rata apportionment of the amounts formerly represented as refund interest.

[¶ 19.] Affirmed in part, reversed in part and remanded.

[¶ 20.] KONENKAMP, Justice and ZINTER, Justice, concur.

[¶ 21.] MEIERHENRY, Justice, concurs in part and dissents in part.

[¶ 22.] SABERS, Justice, dissents.

MEIERHENRY, Justice

(concurring in part and dissent in part).

[¶ 23.] I would affirm the trial court on all issues. I agree with the dissent’s observation that too much has been written on this case already. Consequently, our prior affirmance of the equitable distribution of interest to Delbert should not be relitigated.

SABERS, Justice

(dissenting).

[¶ 24.] I would affirm the circuit court’s award of interest to Delbert because the decision was res judicata as the circuit court determined, or controlled by the doctrine of the “law of the case.” As stated in the majority opinion:

The “law of the case” doctrine is intended to afford a measure of finality to litigated issues. It is a rule of practice and procedure which for policy reasons provides that once an issue is litigated and decided it should remain settled for all subsequent states of the litigation.

Western States Land & Cattle Co., 459 N.W.2d at 435.

[¶ 25.] I would order the apportionment of the refund of $75,525 which resulted from the over valuation of Delbert’s land as affirmed in Siebrasse III. I would reject the after the fact revaluation based on the “increased deductions” for legal fees and administrative expenses allegedly incurred by the estate in fighting the correct valuation, which was sound.

[¶ 26.] I would reverse the circuit court’s denial of attorney’s fees, disbursements and expenses to Delbert because Delbert’s efforts clearly benefited the estate and without his efforts, the estate would have obtained no relief.

[¶ 27.] Further, I would do this by order as too much has already been written on this case.

      . In Siebrasse III, this Court recognized that the estate had been contacted by the IRS and informed the "government intended to reexamine the refund." 2004 SD 46, ¶ 15, 678 N.W.2d at 826.

      . Delbert has not presented sufficient evidence to establish that the circuit court's factual finding that the refund claim was denied is clearly erroneous. We also note that appeal No. 24082 was consolidated with this matter. That appeal related to the circuit court’s decision to supplement the record. Our review of the record reveals that the disputed exhibit was in fact contained in the settled record and attached as an exhibit to Delbert’s counsel’s affidavit. SR 1221. That exhibit further supports the circuit court's finding that the IRS denied Delbert's claim. We consider the appeal challenging the decision to supplement the record moot.


author:
SABERS, Justice.
      GILBERTSON, Chief Justice ZINTER, Justice

text:
    2006 SD 84
    STATE of South Dakota, Plaintiff and Appellant, v. $1,010.00 IN AMERICAN CURRENCY, Defendant and Appellee.
    No. 23878.
    Supreme Court of South Dakota.
    Considered on Briefs on May 23, 2006.
    Decided Sept. 6, 2006.
    Rehearing Denied Oct. 20, 2006.

      Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Amy Yanni, Office of the Public Defender for Pennington County Rapid City, South Dakota, Attorney for defendant and appellee.
   SABERS, Justice.

[¶ 1.] The State appeals an order by the circuit court appointing the Pennington County Public Defender’s Office to represent Duane Apple (Apple) in this civil forfeiture proceeding. We affirm.

FACTS

[¶ 2.] Although the facts have not been fully developed, Apple is incarcerated in the State Penitentiary in Sioux Falls for violating conditions of his parole. On September 14, 2005, the State brought this civil forfeiture action alleging Apple had used $1,010 in a drug-related transaction.

[¶ 3.] Apple responded with a handwritten motion to release the funds and a motion for a thirty-day continuance. In his motion for continuance, Apple wrote: “My name is Duane Apple an [sic] I’m requesting a 30 Day [sic] continuance in this Matter [sic] cause [sic] I am seeking legal assistance in my case.” Apple later wrote a letter to the Pennington County Clerk of Courts, requesting an attorney. In his letter, Apple stated:

I am not smart enough to answer some of this [sic] questions in these papers you all [sic] sent me, [sic] these interrogatories that were sent me [sic]. May I please have a lawyer help me in this Matter [sic] cause [sic] I do not understand alot [sic] and I’m in prison right now an [sic] don’t have the freedom to go out an [sic] have a lawyer help me in this Matter [sic].

Apple completed an application for court-appointed counsel. The circuit court appointed the Pennington County Public Defender’s Office to represent Apple.

[¶ 4.] On November 3, 2005, the State filed a motion to remove appointed counsel. A hearing was held on November 8. The State argued Apple was not statutorily or constitutionally entitled to appointed counsel. The State also alleged that Apple was a drug dealer and either used or obtained the $1,010 in a drug transaction.

[¶ 5.] Apple’s counsel represented to the circuit court that she contacted a rancher from Okaton, South Dakota, who employed Apple over the summer. Apparently, the rancher paid Apple between $1,100 and $1,200 dollars sometime in August, 2005. Counsel argued that although Apple had not been charged by the State for the alleged drug transaction, the circuit court had an equitable power to appoint counsel in the civil forfeiture action.

[¶ 6.] The circuit court denied the State’s motion. The circuit court did not enter findings of fact or conclusions of law. Instead, the court stated on the record:

[T]his man [is] incarcerated in the State Penitentiary and has no money and there’s a thousand dollars which counsel represents to me as an officer of the [e]ourt that he believes is through his employer and wants to establish that that money was earned from the sweat of his brow. So I’m supposed to let him come out here and run up against the Attorney General’s Office and their skills and ability without an attorney to present his case?
Well, I’m going to remain as I have and it’s my order that the Public Defender’s Office of Rapid City, South Dakota, will represent Mr. Apple in this matter.

[¶ 7.] On November 18, 2005, we temporarily stayed the circuit court proceedings and considered the State’s motion for a discretionary appeal. On December 1, 2005, the State convened a grand jury which indicted Apple on charges of possession and distribution of methamphetamine. We granted the State’s petition for appeal on December 9, 2005. We address the following issues:

1. Whether SDCL 23A-40-6 or SDCL 23A-40-7 permits a circuit court to appoint counsel to represent an indigent defendant in a civil forfeiture action.
2. Whether an indigent defendant has a Sixth Amendment right to appointed counsel in a civil forfeiture action.
3. Whether an indigent defendant has a Fourteenth Amendment due process right to appointed counsel in a civil forfeiture action.

Standard of Review

[¶ 8.] This ease involves statutory interpretation. “Statutory interpretation and application are questions of law, and are reviewed by this Court under the de novo standard of review.” Chapman v. Chapman, 2006 SD 36, ¶ 10, 713 N.W.2d 572, 576 (citing State v. Anderson, 2005 SD 22, ¶ 19, 693 N.W.2d 675, 681 (quoting Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463) (internal quotations omitted)).

Statutes are to be construed to give effect to each statute and so as to have them exist in harmony. It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.

In re Estate of Meland, 2006 SD 22, ¶ 6, 712 N.W.2d 1, 2 (quoting In re Estate of Jetter, 1997 SD 125, ¶ 11, 570 N.W.2d 26, 29) (quoting Rushmore State Bank v. Kurylas, 424 N.W.2d 649, 653 (S.D.1988)) (internal citations omitted).

[¶ 9.] Generally, we review questions concerning constitutional rights under the de novo standard of review. See State v. Asmussen, 2006 SD 37, ¶ 11, 713 N.W.2d 580, 586; State v. Williams, 2006 SD 11, 12 n. 2, 710 N.W.2d 427, 432 n. 2. However, with regard to a due process claim, the United States Supreme Court has implied that circuit courts should be given a degree of deference. Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 31-32, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640 (1981) (noting that the facts and circumstances that give rise to due process claims are subject to “infinite variation” and should be “answered in the first instance by the trial court, subject, of course, to appellate review”).

1. Statutory right to counsel

[¶ 10.] No specific statute allows for appointed counsel in civil forfeiture actions. Instead, Apple relies upon SDCL chapter 23A-40, which provides counsel for indigent defendants:

In any criminal investigation or in any criminal action or action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to revoke a parole, if it is satisfactorily shown that the defendant or detained person does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation, the judge of the circuit court or the magistrate shall, upon the request of the defendant, assign, at any time following arrest or commencement of detention without formal charges, counsel for his representation, who shall appear for and defend the accused upon the charge against him, or take other proper legal action to protect the rights of the person detained without formal charge.

(SDCL 23A-40-6) (Emphasis added).

[¶ 11.] By its plain terms SDCL 23A-40-6 provides for appointment of counsel in “any criminal investigation or in any criminal action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to revoke a parole.... ” Because this is a civil forfeiture action, Apple is not entitled to appointed counsel under SDCL 23A-40-6.

[¶ 12.] Apple seems to agree that a plain reading of SDCL 23A-40-6 does not entitle him to appointed counsel. However, he urges us to interpret SDCL 23A-40-6 in conjunction with SDCL 23A-40-7, which provides in part:

The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in § 23A-40-6. They shall provide this representation by any or all of the following:
(1) Establishing and maintaining an office of a public defender;
(2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or
(3) Contracting with any attorney licensed to practice law in this state.

(Emphasis added). According to Apple, SDCL 23A-40-7(2) permits a circuit court to appoint counsel to represent indigent people whenever “equity requires.” The State responds by arguing civil forfeiture actions are, legal, not equitable, and the Pennington ■ County Commissioners have not arranged a “systematic, coordinated plan” with the circuit courts. Both arguments misconstrue the intention of the legislature in drafting SDCL 23A-40-7.

[¶ 13.] By'using the word “shall,” the legislature mandated that the board of county commissioners and the governing body of any municipality provide for the representation of indigent persons described in SDCL 23A-40-6. As mentioned, SDCL 23A-40-6 does not provide for appointed counsel in civil forfeiture actions. Thus, neither the Pennington County Board of Commissioners nor the governing body of Rapid City is statutorily required to provide representation for Apple in this matter. Once it is determined that Apple is not an indigent person described in SDCL 23A-40-6, the remaining portions of SDCL 23A-40-7 become irrelevant. However, because Apple and the State focus a substantial part of their argument on SDCL 23A-40-7, we examine the legislative intent behind the “equitable basis” language contained in subsection two.

[¶ 14.] If it is determined an individual is an indigent defendant in one of the actions encompassed by SDCL 23A-40-6, the legislature provides three methods by which the board of county commissioners and governing body of the municipality can provide representation. Under SDCL 23A-40-7, the board or the municipality can use one or all of these methods in providing representation. Subsection two permits an arrangement with the circuit courts by which attorneys are appointed on an equitable basis through a systematic, coordinated plan.

[¶ 15.] Contrary to Apple’s argument, SDCL 23A-40-7 does not create an additional, equitable ground for appointing counsel. Instead, it merely provides methods for providing representation. If the board or municipality adopts subsection two, then appointments must be made on an equitable basis, rather than an inequitable basis, and through a systematic, coordinated plan. SDCL 23A-40-7.

[¶ 16.] In summary, SDCL 23A-40-6 provides the circumstances in which an indigent defendant is entitled to appointed counsel. SDCL 23A-40-7 merely provides the methods by which the board or municipality provide representation. Because civil forfeiture actions are not included in SDCL 23A-40-6, Apple has no statutory right to appointed counsel.

2. Sixth Amendment right to counsel

[¶ 17.] The Sixth Amendment to the United States Constitution provides in part, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defen[s]e.” US Const amend. VI. The right to counsel provided in the Sixth Amendment is expressly limited to “criminal prosecutions.” The United States Supreme Court has refused to interpret this right beyond the text of the Amendment. See Austin v. United States, 509 U.S. 602, 608, 113 S.Ct. 2801, 2804, 125 L.Ed.2d 488 (1993) (stating “[t]he protections provided by the Sixth Amendment are explicitly confined to criminal prosecutions”). Consequently, Apple has no Sixth Amendment right to counsel in this matter.

3. Due process right to counsel

[¶ 18.] The United States Supreme Court has not addressed whether the Due Process Clause of the Fourteenth Amendment requires appointed counsel in civil forfeiture proceedings. The Court has, however, had occasion to determine whether other constitutional provisions apply in such actions. See Austin, 509 U.S. at 608 n. 4, 113 S.Ct. at 2805 n. 4, 125 L.Ed.2d 488.

[¶ 19.] Over one hundred years ago, the Court addressed whether the Fifth Amendment’s Self-Incrimination Clause applied in civil forfeiture proceedings. See Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Although the Self-Incrimination Clause is textually limited to “criminal case[s],” the Boyd Court held that it applied in civil forfeiture actions where the statute made the culpability of the defendant relevant, or where the defendant faced the possibility of subsequent criminal proceedings. Id. at 634, 6 S.Ct. at 534, 29 L.Ed. 746; United States v. Ward, 448 U.S. 242, 253-54, 100 S.Ct. 2636, 2644, 65 L.Ed.2d 742 (1980) (discussing Boyd); Austin, 509 U.S. at 608 n. 4, 118 S.Ct. at 2805 n. 4, 125 L.Ed.2d 488 (discussing Ward and Boyd). The Boyd Court noted:

We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal.

Boyd, 116 U.S. at 638-634, 6 S.Ct. at 534, 29 L.Ed. 746. The Court continued:

If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants,-that is, civil in form,-can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. The information, though technically a civil proceeding, is in substance and effect a criminal one.

Id. at 634, 6 S.Ct. at 534, 29 L.Ed. 746.

[¶ 20.] Almost a century after Boyd, the United States Supreme Court examined whether the Fourth Amendment’s prohibition against unreasonable searches and seizures applied in civil forfeiture proceedings. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). In One 1958 Plymouth Sedan, the Pennsylvania Supreme Court held that the Fourth Amendment did not apply in forfeiture proceedings because they were civil, not criminal in nature. 380 U.S. at 695-96, 85 S.Ct. at 1248, 14 L.Ed.2d 170. The United States Supreme Court reversed, relying on its holding in Boyd. Id.

[¶ 21.] In Ward, the United States Supreme Court held that the Fifth Amendment’s Self-Incrimination Clause did not apply when the government sought to collect a civil penalty from the defendant, because the penalty was “much more analogous to traditional civil damages.” 448 U.S. at 254, 100 S.Ct. at 2644, 65 L.Ed.2d 742. The Court distinguished Boyd on the grounds that it dealt with civil forfeiture proceedings that “posed a danger that the appellants would prejudice themselves in respect to later criminal proceedings.” Id.

[¶ 22.] Through these precedents, the United States Supreme Court has made clear that there are occasions in which the Fourth and Fifth Amendments apply to civil forfeiture proceedings. As mentioned, the Court has not had occasion to determine whether the Due Process Clause requires appointed counsel to represent a civil forfeiture defendant to secure the rights afforded by the Fourth and Fifth Amendments. However, the Court has examined the due process right to counsel in various proceedings.

[¶ 23.] In Lassiter v. Department of Social Services, the Court determined whether the Due Process Clause required appointment of counsel to represent an indigent mother in a termination of parental rights proceeding. 452 U.S. at 24, 101 S.Ct. at 2158, 68 L.Ed.2d 640. The Court noted that historically due process only required the assistance of counsel in cases that threatened the defendant’s physical liberty. Id. at 26-27, 101 S.Ct. at 2159, 68 L.Ed.2d 640. However, unlike the Sixth Amendment right to counsel, the Court did not limit the due process right to counsel to criminal cases. Id. Instead, the Court held that there is a “presumption that an indigent litigant has a right to counsel only when, if he [or she] loses, he [or she] may be deprived of their physical liberty.” Id. (Emphasis added). However, this presumption must be balanced against the three elements announced in Mathews v. Eldridge: (1) the private interests at stake, (2) the government’s interest, and (3) the risk the procedures will lead to an erroneous decision. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)).

[¶ 24.] Ultimately, the Court held that Lassiter was not entitled to appointed counsel. Id. at 32-34, 101 S.Ct. at 2162-63, 68 L.Ed.2d 640. The Court indicated its decision was not a bright-line rule, noting:

If, in a given case, the parent’s interests were at their strongest, the State’s interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel. But since the Eldridge factors will not always be so distributed, and since “due process is not so rigid as to require that the significant interests in informality, flexibility and economy must always be sacrificed, neither can we say that the Constitution requires the appointment of counsel in every parental termination proceeding. We therefore adopt the standard found appropriate in Gagnon v. Searpelli, and leave the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to appellate review.”

Id. at 31, 101 S.Ct. at 2162, 68 L.Ed.2d 640 (internal citations and quotations omitted). The Court also mentioned that there would not be a subsequent criminal proceeding. “[T]he petition to terminate Ms. Lassiter’s parental rights contained no allegations of neglect or abuse upon which criminal charges could be based.... ” Id. at 32, 101 S.Ct. at 2162, 68 L.Ed.2d 640. Thus, Lassiter “could not well have argued that she required counsel for that reason.” Id.

[¶ 25.] In the present case, we address (1) Apple’s private interest, (2) the State’s interest, and (3) the risk the civil forfeiture procedures will lead to an erroneous decision. These factors will be balanced against the presumption against appointed counsel. Id. at 26-27, 101 S.Ct. at 2158-2159, 68 L.Ed.2d 640.

[¶26.] Apple’s interest involved is a property interest in the $1,010. Property interests are important and encompassed by the text of the Due Process Clause. However, property interests are always implicated in forfeiture proceedings. We find no case that holds a property interest, standing alone, requires appointment of counsel in civil forfeiture proceedings.

[¶ 27.] What makes this case problematic is that the State initiated this civil forfeiture proceeding before Apple had formally been charged with any criminal activity. In fact, when this matter was before the circuit court, the State had not pursued an indictment. Apple was not indicted until the State’s petition for discretionary appeal was pending before this Court.

[¶ 28.] The State’s complaint alleges Apple’s property is subject to forfeiture under SDCL 34-20B-70(6). That statute includes property subject to forfeiture as:

Any funds or other things of value used for the purposes of unlawfully purchasing, attempting to purchase, distributing, or attempting to distribute any controlled drug or substance or marijuana.

As a result, the statute makes Apple’s culpability in a drug-related transaction relevant. See United States v. United States Coin Currency, 401 U.S. 715, 721-722, 91 S.Ct. 1041, 1045, 28 L.Ed.2d 434 (1971). More importantly, Apple faces a subsequent criminal prosecution based upon this conduct. Thus, the paramount concern present in Boyd, and notably absent in Ward and Lassiter, is present here: there is a real and significant danger that Apple could prejudice himself in respect to the subsequent criminal proceeding.

[¶ 29.] Although not squarely before this Court, the United States Supreme Court has held the Fifth Amendment Self-Incrimination Clause and the Fourth Amendment prohibition against unreasonable searches and seizures applies under these circumstances. Consequently, Apple has far more at stake than his property interest in the $1,010.

[¶ 30.] The State’s interest is two fold. First, it has an interest in deterring the purchasing and distributing of illegal drugs, as well as depriving individuals of the funds used in such transactions. Second, the State has an interest in pursuing these matters in an expeditious and inexpensive fashion. Government appointment of counsel undoubtedly takes time and drains government resources. However, this interest is less compelling in the present case. Indeed, the State can choose to pursue civil forfeiture after the criminal proceeding is complete. At that time, jeopardy will have attached to the criminal charges and the risk of prejudice is alleviated.

[¶ 31.] Finally, there is a risk of an erroneous deprivation in this case. Unlike most civil forfeiture proceedings, there have not been any findings concerning the underlying criminal conduct. See United States v. Forfeiture Property All Appurtenances Improvements, 803 F.Supp. 1194, 1197 (N.D.Texas 1992) (little risk of erroneous deprivation where defendants pled guilty to underlying criminal conduct); Commomoealth v. $9,847.00 in U.S. Currency, 550 Pa. 192, 704 A.2d 612, 616 (1997) (risk of erroneous deprivation minimal because “in most cases, a forfeiture proceeding will be preceded by either a criminal conviction or a guilty plea to a violation.”).

[¶ 32.] After examining these factors, we hold that the significant risk of prejudice in the future criminal proceeding coupled with the State’s minimal interest in pursuing these matters prior to a criminal prosecution and the risk of erroneous deprivation outweighs the presumption against appointed counsel. To hold otherwise, would allow the State an end run around the Sixth Amendment by filing civil forfeiture proceedings in order to gain admissions to bolster its criminal case against the defendant.

[¶ 33.] The State cites numerous cases where courts have denied appointed counsel in civil forfeiture proceedings. However, the State cites no case that involved a civil forfeiture proceeding initiated prior to criminal charges.

[¶ 34.] “For all its consequence, due process has never been, and perhaps can never be, precisely defined.” Lassiter, 452 U.S. at 24, 101 S.Ct. at 2158, 68 L.Ed.2d 640 (internal quotations omitted). “Unlike some legal rules, th[e] [United States Supreme Court] has said, due process is not a technical conception with a fixed content unrelated to time, place and circumstances.” Id. (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961)). Under these circumstances, there is no showing the circuit court erred in appointing counsel to represent Apple.

[¶ 35.] Affirmed.

[¶ 36.] KONENKAMPand MEIERHENRY, Justices, concur.

[¶ 37.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur in part and dissent in part.

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶38.] I agree with the Court that there is no statutory right to counsel in a forfeiture proceeding. I also agree that the Sixth Amendment right to counsel is not triggered in a civil forfeiture proceeding. Where I part ways with the Court, is with the proposition that the Due Process Clause of the Fourteenth Amendment requires appointment of counsel at taxpayer expense in a civil forfeiture proceeding.

[¶ 39.] The Due Process Clause of the Fourteenth Amendment “imposes on States standards necessary to ensure that judicial proceedings are fundamentally fair.” Lassiter v. Dept. of Social Services, 452 U.S. 18, 33, 101 S.Ct. 2153, 2163, 68 L.Ed.2d 640 (1981). However, there are limitations on when the State is required to provide an indigent defendant with counsel. Id. at 25, 101 S.Ct. at 2158, 68 L.Ed.2d 640. Lassiter reiterated the general rule concerning the right to counsel under the Due Process Clause: “counsel must be provided before any litigant may be sentenced to prison, even where the crime is petty and the prison term brief.” Id. It then provided a review of jurisprudence in this area by noting that the Court did not find a per se right to counsel existed for probationers facing revocation hearings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), or a right to appointed counsel for criminal prosecutions that do not result in the defendant’s loss of personal liberty. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).

[¶ 40.] The precedents have resulted in a presumption against providing an indigent litigant with appointed counsel unless “if he loses, he may be deprived of his physical liberty.” Lassiter, 452 U.S. at 27, 101 S.Ct. at 2159, 68 L.Ed.2d 640. The Court’s precedents clearly require that other courts that undertake Due Process analysis do so in a manner that weighs the other elements in the due process decision “against this presumption.” Id.

[¶ 41.] The three elements against which the presumption must be weighed are: 1) the privacy interests at stake, 2) the government’s interests, and 3) the risk that the procedure used will lead to erroneous decisions. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)). The elements are balanced against each other and their net weight is then weighed against the presumption that the right to appointed counsel exists only where the indigent litigant, if he is unsuccessful, may lose his personal freedom. Id.

[¶ 42.] The Court maintains that because Apple’s culpability in a drug-related transaction is relevant under the forfeiture proceeding, he faces a real and significant danger that he could prejudice himself in subsequent criminal proceedings. The Court goes on to state that “Apple has far more at stake than his property interest in $1,010” due to the protections of the Fifth Amendment right against self incrimination and the Fourth Amendment prohibition against unreasonable searches and seizures. Supra ¶ 29.

[¶ 43.] However, this discussion misses the most salient point in the United States Supreme Court’s Due Process jurisprudence. The Due Process Clause is triggered only if the indigent litigant, if unsuccessful, faces the potential loss of personal freedom. In the instant case, the language “if unsuccessful ” refers to whether Apple will lose in the forfeiture action. Only if Apple loses in the forfeiture action, and as a result of that loss faces the potential loss of freedom, would the right to counsel trigger.

[¶ 44.] Apple faces only the loss of the $1,010 in the forfeiture action, not the loss of his personal freedom. His innocence or guilt in the future criminal prosecution would not be determined in or by the civil forfeiture proceeding. At the forfeiture proceeding, the State must be able to show by a preponderance of the evidence that the $1,010 was subject to forfeiture. SDCL 34-20B-70. This standard of proof falls far shy of the required showing in a criminal conviction of proof beyond a reasonable doubt. Therefore, the present action does not trigger the first step in the Due Process examination as Apple does not face the potential loss of his personal freedom in the event of a loss in the civil forfeiture action.

[¶ 45.] Even if we were to suspend that portion of the test and conduct the Mathews elements of balancing, Apple would still not be entitled to court-appointed representation in the civil forfeiture. Apple’s only liberty interest in the civil forfeiture action is the loss of $1,010. While this might be a significant sum of money, it is not in the nature of the loss of freedom, the loss of parental rights, or the revocation of parole. The right to one’s money or property is a legitimate property interest, but not a liberty interest on the scale of personal freedom.

[¶ 46.] Furthermore, the United States Supreme Court has held that the pre-trial seizure of assets that prevents a defendant from using funds frozen in a federal drug money forfeiture action to hire defense counsel does not violate the Fifth Amendment’s Due Process Clause; as such a seizure does not cause an imbalance of forces between the accused and the government. United, States v. Monsanto, 491 U.S. 600, 614, 109 S.Ct. 2657, 2666, 105 L.Ed.2d 512 (1989). The Court specifically noted that “permitting a defendant to use assets for his private purposes that, under this provision, will become the property of the United States if a conviction occurs cannot be sanctioned.” Id. at 613, 109 S.Ct. at 2665, 105 L.Ed.2d 512. There is no legal justification to force the expenditure of taxpayer funds on a defendant’s attempt to retain funds that may be the fruit of illegal drug trafficking.

[¶ 47.] Finally, the áppointment of counsel for Apple would undoubtedly assist him to understand and answer the State’s interrogatories, and in navigating through the civil forfeiture action. Appointing counsel in order for Apple to present the very same evidence he filed with the circuit court as to the source of the $1,010 would not decrease the risk that the civil forfeiture action would result in an erroneous decision. The Eldridge factors do not tip the scale in favor of appointing representation.

[¶ 48.] The Court has stated that Apple’s Fifth Amendment right against self incrimination is implicated at the civil forfeiture proceedings. It is true that “the Fifth Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” State v. Abraham, 318 N.W.2d 775, 777 (S.D.1982) (citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). However, before the protections of the Fifth Amendment apply a defendant must first show that his previous testimony was compelled. Id. (citing Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969)).

[¶ 49.] . Apple argues that any testimony he might give at the civil forfeiture action might be used against him at a subsequent criminal proceeding. However, Apple is not being compelled to be a witness against himself at the civil forfeiture action. He was able to file motions to release the money and resist the action and for a continuance. Apple’s only stated reason for petitioning for appointed counsel was his purported inability to understand the State’s interrogatories in the civil forfeiture action. I am unaware of any constitutional or statutory provision that allows the court appointment of counsel because a civil litigant claims he or she cannot understand a request for discovery.

[¶ 50.] The United States Supreme Court has held that pre-trial seizure of suspected drug money does not result in a Due Process violation when the seizure prevents a defendant from hiring counsel of choice and may result in the loss of personal freedom in an impending criminal trial. Moreover, there is no precedent in any jurisdiction for the notion that an indigent litigant has a Due Process right to state appointed counsel at a civil forfeiture action because the collateral consequences of the proceeding may result in a loss of personal freedom upon criminal conviction. I would reverse the circuit court’s appointment of counsel.

ZINTER, Justice

(concurring in part and dissenting in part).

[¶ 51.] I concur in the Court’s analysis finding no statutory or Sixth Amendment basis for court-appointed counsel. However, I respectfully dissent from that portion of the Court’s opinion concluding that the Due Process Clause requires the appointment of counsel in the discovery phase of a civil forfeiture case.

[¶ 52.] The basis for the Court’s opinion, as well as its conclusion that the State’s overwhelming case authority is in-apposite, is the Court’s observation that the civil forfeiture was initiated before a criminal action was commenced. From this, the Court assumes that the civil forfeiture will be pursued prior to a criminal prosecution. Supra ¶¶ 31-33. And, from this assumption, the Court speculates that “there is a real and significant danger that Apple could prejudice himself in respect to the subsequent criminal proceeding.” Supra ¶ 28 (emphasis added). Based upon this foundational chain of assumption and speculation, the Court ultimately concludes that due process mandates court-appointed counsel in the discovery phase of civil litigation. However, the Court’s assumptions and speculations are unsupported by the record, are erroneous; and, even if they were correct, are irrelevant.

[¶ 53.] It is noteworthy that the Court acknowledges that the risk of prejudice requiring court-appointed counsel would be alleviated if the State chose to prosecute the civil forfeiture after the criminal proceeding. Sv/pra ¶ 30. Yet, the Court fails to acknowledge that there is no record evidence that the State intends to proceed with the forfeiture before the criminal proceeding is concluded. There is no such evidence because, at the time the circuit court appointed counsel and at the time this appeal was taken, no criminal proceeding had been commenced. Thus, the Court’s only source for the existence of a criminal proceeding is the State’s extra-record disclosure in its Reply Brief; information of which the circuit court was unaware.

[¶ 54.] But more fundamentally, if one reviews the only record evidence concerning this matter, this Court’s speculation is erroneous. The only evidence on this point suggests that the forfeiture will not be prosecuted before the criminal case. In its brief to this Court, the State answered this Court’s contrary speculation by citing evidence suggesting that the forfeiture would be delayed until after Apple’s criminal case was prosecuted: the State identified an exhibit reflecting that Apple had executed a waiver of his statutory right to the forfeiture trial within sixty days. And, because the State must try Apple’s criminal ease within 180 days of his first appearance, SDCL 23A-44-5.1, the likelihood of prosecuting the forfeiture first is more implausible than realistic.

[¶ 55.] It must also be reiterated that the circuit court did not appoint counsel under the constitutional theory adopted by this Court, or in fact, under any constitutional or statutory theory. The record reflects that when the circuit court made its decision, Apple had not been indicted, the forfeiture was in the discovery phase, and the circuit court simply appointed counsel to assist in civil discovery. As far as authority for the appointment, the circuit court stated that it was a matter of “equity” because Apple wanted to establish that he earned the money “through the sweat of his brow,” and the circuit court was not going to require him to “run up against the Attorney General’s office and their skills and ability without an attorney.”

[¶ 56.] Clearly, circuit courts do not have authority to appoint publicly financed counsel simply because they wish to do equity in a civil case. It appears that there are currently four sources of authority to appoint counsel. Initially, “[t]he United States Constitution contains two sources of a right to counsel: the Fifth and Sixth Amendments.” State v. Cruz, 122 P.3d 543, 555 (Utah 2005) (citing Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). However, at the time the circuit court appointed counsel, no Sixth Amendment right was implicated because Apple had not been charged with a criminal offense: “The United States Supreme Court has noted that ‘[t]he Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, and before proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel.’ ” Id. at 555 (quoting Davis v. United States, 512 U.S. 452, 456-57, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)). Furthermore, no Fifth Amendment right was implicated because Apple was not in custody on a criminal offense related to the forfeiture. Id. This only leaves state statutory authority, which is concededly inapplicable, or the due process balancing analysis under Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). However, the circuit court’s “equity” decision was not based on any of these theories. Therefore, this Court certainly errs in affirming the circuit court’s analysis. See supra ¶ 34.

[¶ 57.] With respect to the merits of a due process right to counsel, the Court fails to recognize when a real and significant danger of loss of liberty arises in civil litigation. It may arise if Apple elects to waive his Fifth Amendment rights, or it will arise if the State seeks to compel Apple’s testimony. However, at the time of the appointment and at the time this appeal was taken, there was no evidence that the State sought to compel testimony. And, Apple is, of course, free to waive his Fifth Amendment rights in any civil litigation. It is also noteworthy that Apple had only sought counsel at the discovery stage of the forfeiture. Therefore, like any other civil case not involving compelled testimony, there was an insufficient risk of a loss of liberty at that time to invoke a due process right to counsel.

[¶ 58.] This Court cites no decision supporting its opinion, and it is contrary to the decisions of other courts that have considered the issue. For example, even though a defendant had pleaded guilty, the Pennsylvania Supreme Court categorically concluded that:

[T]he Due Process Clause of the Fourteenth Amendment to the United States Constitution does not require that court-appointed counsel be provided to indigent claimants in civil forfeiture cases under Pennsylvania’s Controlled Substances Forfeitures Act.
Because a claimant in a civil forfeiture proceeding is not in danger of a loss of personal liberty should he be unsuccessful at trial, we now hold that there is no constitutional right to the appointment of counsel for indigent claimants in civil forfeiture matters under ... the United States Constitution.

Com. v. $9,847.00 U.S. Currency, 550 Pa. 192, 201, 704 A.2d 612, 617 (1997). See also People v. Madeyski, 94 Cal.App.4th 659, 664, 115 Cal.Rptr.2d 14, 17 (Cal.App. 6 Dist.2001) (finding no due process right to court-appointed counsel); People v. $30,000 U.S. Currency, 35 Cal.App.4th 936, 942-943, 41 Cal.Rptr.2d 748, 752 (Cal.App. 4 Dist.1995) (although the defendant’s criminal proceedings had concluded, the court found that because a defendant’s participation in a civil forfeiture proceeding is voluntary, there is no due process right to counsel); State v. One Blue Corvette, 732 A.2d 856, 859 (Me.1999) (court mistakenly appointed counsel in forfeiture proceeding).

[¶ 59.] Considering the rationale of the cases that have considered this issue, this Court is wrong in asserting that the State’s cases are all distinguishable because they do not involve civil forfeiture proceedings initiated prior to criminal charges. Supra ¶ 33. The courts that have considered the due process issue have failed to attach any relevance to the status of the criminal proceedings. Supra ¶ 58. Instead, they categorically find no due process right to counsel. Therefore, I would follow precedent. I would decline to plow new ground unearthing an unprecedented constitutional right to court-appointed counsel in the discovery phase of a civil case.

      . It appears Apple violated the conditions of his parole by moving to Rapid City without consent.

      . SDCL 34-20B-69(76) permits forfeiture of, and provides that no property right exists in, "funds or other things of value used for the purposes of unlawfully purchasing, attempting to purchase, distributing, or attempting to distribute any controlled drug or substance or marijuana....”

      . SDCL 34-20B-70 provides:
      The following are subject to forfeiture and no property right exists in them:
      (1) All controlled drugs and substances and marijuana which have been manufactured, distributed, dispensed, or acquired in violation of the provisions of this chapter or chapter 22-42;
      (2) All raw materials, products, and equipment of any kind which are used or intended for use, in manufacturing, compounding, processing, importing, or exporting any controlled drug or substance or marijuana in violation of the provisions of this chapter or chapter 22-42;
      (3) All property which is used, or intended for use, as a container for property described in subdivisions (1) and (2);
      (4) All conveyances including aircraft, vehicles, or vessels, which transport, possess, or conceal, or which are used, or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or concealment of marijuana in excess of one-half pound or any quantity of any other property described in subdivision (1) or (2), except as provided in §§ 34-20B-71 to 34-20B-73, inclusive. This subdivision includes those instances in which a conveyance transports, possesses or conceals marijuana or a controlled substance as described herein without the necessity of showing that the conveyance is specifically being used to transport, possess, or conceal or facilitate the transportation, possession, or concealment of marijuana or a controlled substance in aid of any other offense;
      (5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter;
      (6) Any funds or other things of value used for the purposes of unlawfully purchasing, attempting to purchase, distributing, or attempting to distribute any controlled drug or substance or marijuana;
      (7) Any assets, interest, profits, income, and proceeds acquired or derived from the unlawful purchase, attempted purchase, distribution, or attempted distribution of any controlled drug or substance or marijuana.

      . SDCL 34-20B-88 provides:
      If a verified answer is filed, the forfeiture proceedings shall be set for hearing on a day not more than sixty days therefrom; at the hearing, the state shall establish probable cause for instituting the forfeiture action following which any owner, party in interest or claimant who has filed a verified answer shall have the burden of proving that the property seized is not subject to forfeiture under this chapter. If the court finds that the property is not subject to forfeiture under this chapter, the court shall order the property released to the owner, party in interest or claimant as his right, title or interest appears; the court shall order the property forfeited if it determines that such property was subject to forfeiture.

      . In quoting the circuit court’s basis for appointing counsel at ¶ 6, supra, this Court fails to include the circuit court’s opening sentence of the quotation that clearly explains its legal basis for appointing counsel; i.e., a "matter of equity.”

      . Before counsel was appointed, Apple, without the assistance of counsel filed a "Motion for Release of Money” and a "Motion for 30-Day Continuance.” He filed the latter motion on October 17, 2005, indicating that he was seeking legal assistance, was gathering evidence, and was hoping to finish answering the first set of interrogatories. He asked for the continuance only because he was having difficulty in meeting the deadlines. He also filed answers to interrogatories on October 31, 2005, without the apparent assistance of counsel.

      . The Pennsylvania Supreme Court cited the following cases as consistent with its holding:

        United States v. $292,888.04 U.S. Currency, 54 F.3d 564 (9th Cir.1995); United States v. 1604 Oceola, Wichita Falls, Texas, 803 F.Supp. 1194 (N.D.Tex.1992); United States v. 1606 Butterfield Rd. Dubuque, Iowa, 786 F.Supp. 1497 (N.D.Iowa 1991); United States v. 4204 Cedarwood, Matteson, IL, 614 F.Supp. 183 (D.C.Ill.fcic] 1985); Reselc v. State, 706 P.2d 288 (Alaska 1985); People v. $30,000 United States Currency, 35 Cal. App.4th 936, 41 Cal.Rptr.2d 748 (1995); Morgenthau v. Garcia, 148 Misc.2d 900, 561 N.Y.S.2d 867 (1990).
      Com. v. $9,847.00 U.S. Currency, 550 Pa. 192, 201, 704 A.2d 612, 617, n. 9 (1997).