CHARLESTON, W.Va - A Jackson County couple is challenging the forfeiture of their farm, more than 40 firearms and other assets, arguing that a circuit court judge erred when he found that the items were connected to illegal drug activity.
Hubert D. Messer and his wife, Sharon L. Messer, also say in a court filing that the judge incorrectly found that the Jackson County Sheriff's Department met its burden of proof that the assets are subject to forfeiture.
"There simply was no establishment of a connection between the properties to an illegal drug transaction," the filing stated.
The Messers have asked the West Virginia Supreme Court to overturn the ruling and send the case back to Jackson County Circuit Court for further proceedings. The justices will hear arguments in the case on Wednesday.
State and local authorities filed a forfeiture petition in Jackson County Circuit Court in May 2013 following Hubert Messer's arrest on a state stolen property charge. He subsequently pleaded guilty to federal drug charges.
Assets listed on the petition included the couple's 54-acre farm, 42 firearms, two safes, a crossbow, several vehicles and lawnmowers, and eight saddles, court records show.
Circuit Judge Thomas C. Evans III ruled in 2014 that most of the assets were subject to forfeiture because they were connected to the drug trade. He said the farm was a front for Hubert Messer's drug trade, and that Messer paid farm hands with pain pills. Other assets either were obtained in exchange for drugs, or were bought with money earned by selling drugs.
"The evidence .... indicates that Mr. and Mrs. Messer were clearly spending money exceeding what they obtained through legitimate means," Evans wrote in his ruling.
Exceptions included the couple's house. Evans said there was not "a substantial enough nexus between the house and the drug deals to allow for forfeiture of the home."
The couple argues that Evans did not properly apply a previous West Virginia Supreme Court decision regarding forfeitures. That decision said a forfeiture of real property under state law violates the Eighth Amendment and the West Virginia Constitution's excessive fines clause if the amount is "grossly disproportionate" to the gravity of the offense.
Hubert Messer was only charged in state court with transferring and receiving stolen property, which carries a maximum $2,500 fine, the Messers' filing said.
Jackson County prosecutor Kennad L. Skeen, representing the sheriff's department, said in a court filing that the state potentially could charge Hubert Messer with hundreds of counts of delivery of a controlled substance. Each count would have a maximum $25,000 fine.