Kansas 2023-2024 Regular Session

Kansas House Bill HB2352 Compare Versions

Only one version of the bill is available at this time.

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1	1	Session of 2023
2	2	HOUSE BILL No. 2352
3	3	By Committee on Judiciary
4	4	2-8
5	5	AN ACT concerning the Kansas standard asset seizure and forfeiture act;
6	6	requiring the plaintiff's attorney to prove beyond a reasonable doubt
7	7	that property is subject to forfeiture; amending K.S.A. 2022 Supp. 60-
8	8	4113 and 60-4114 and repealing the existing sections.
9	9	Be it enacted by the Legislature of the State of Kansas:
10	10	Section 1. K.S.A. 2022 Supp. 60-4113 is hereby amended to read as
11	11	follows: 60-4113. (a) A judicial in rem forfeiture proceeding brought by
12	12	the plaintiff's attorney pursuant to a notice of pending forfeiture or verified
13	13	petition for forfeiture is also subject to the provisions of this section. If a
14	14	forfeiture is authorized by this act, it shall be ordered by the court in the in
15	15	rem action.
16	16	(b) An action in rem may be brought by the plaintiff's attorney in
17	17	addition to, or in lieu of, civil in personam forfeiture procedures. The
18	18	seizing agency may serve the complaint in the manner provided by K.S.A.
19	19	60-4109(a)(3), and amendments thereto, or as provided by the rules of
20	20	civil procedure.
21	21	(c) Only an owner of or an interest holder in the property who has
22	22	timely filed a proper claim may file an answer in an action in rem. For the
23	23	purposes of this section, an owner of or interest holder in property who has
24	24	filed a claim and answer shall be referred to as a claimant.
25	25	(d) The answer shall be signed by the claimant under penalty of
26	26	perjury, K.S.A. 2022 Supp. 21-5903, and amendments thereto, shall
27	27	otherwise be in accordance with the rules of civil procedure on answers
28	28	and shall also set forth the following:
29	29	(1) The caption of the proceedings and identifying number, if any, as
30	30	set forth on the notice of pending forfeiture or complaint and the name of
31	31	the claimant;
32	32	(2) the address where the claimant will accept mail;
33	33	(3) the nature and extent of the claimant's interest in the property; and
34	34	(4) a detailed description of when and how the claimant obtained an
35	35	interest in the property.
36	36	(e) Substantial compliance with subsection (d) shall be deemed
37	37	sufficient.
38	38	(f) It is permissible to assert the right against self-incrimination in an
39	39	answer. If a claimant asserts the right, the court, in the court's discretion,
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76	76	may draw an adverse inference from the assertion against the claimant.
77	77	The adverse inference shall not, by itself, be the basis of a judgment
78	78	against the claimant.
79	79	(g) The answer shall be filed within 21 days after service of the civil
80	80	in rem complaint.
81	81	(h) The issue shall be determined by the court alone. The plaintiff's
82	82	attorney shall have the initial burden of proving beyond a reasonable
83	83	doubt the interest in the property is subject to forfeiture by a
84	84	preponderance of the evidence. If the state proves the interest in the
85	85	property is subject to forfeiture, the claimant has the burden of showing by
86	86	a preponderance of the evidence that the claimant has an interest in the
87	87	property which that is not subject to forfeiture.
88	88	(i) If the plaintiff's attorney fails to meet the burden of proof for
89	89	forfeiture, or a claimant establishes by a preponderance of the evidence
90	90	that the claimant has an interest that is exempt under the provisions of
91	91	K.S.A. 60-4106, and amendments thereto, the court shall order the interest
92	92	in the property returned or conveyed to the claimant. The court shall order
93	93	all other property forfeited to the seizing agency and conduct further
94	94	proceedings pursuant to K.S.A. 60-4116 and 60-4117, and amendments
95	95	thereto.
96	96	Sec. 2. K.S.A. 2022 Supp. 60-4114 is hereby amended to read as
97	97	follows: 60-4114. (a) (1) A judicial in personam forfeiture proceeding
98	98	brought by the plaintiff's attorney pursuant to an in personam civil action
99	99	alleging conduct giving rise to forfeiture is also subject to the provisions of
100	100	this section. If a forfeiture is authorized by this act, it shall be ordered by
101	101	the court in the in personam action. The action shall be in addition to or in
102	102	lieu of in rem forfeiture procedures.
103	103	(2) In any proceeding pursuant to this section, the court, on
104	104	application of the plaintiff's attorney, may enter any order authorized by
105	105	K.S.A. 60-4112, and amendments thereto.
106	106	(b) The court may issue a temporary restraining order in an action
107	107	under this section on application of the plaintiff's attorney, without notice
108	108	or an opportunity for a hearing, if the plaintiff's attorney demonstrates that:
109	109	(1) There is probable cause to believe that in the event of a final
110	110	judgment, the property involved would be subject to forfeiture under the
111	111	provisions of this act; and
112	112	(2) a provision of notice would jeopardize the availability of the
113	113	property for forfeiture.
114	114	(c) Notice of the issuance of a temporary restraining order and an
115	115	opportunity for a hearing shall be given to persons known to have an
116	116	interest in the property. A hearing shall be held at the earliest possible date
117	117	in accordance with the applicable civil rule and shall be limited to the
118	118	issues of whether:
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162	162	(1) There is a probability that the seizing agency will prevail on the
163	163	issue of forfeiture and that failure to enter the order could result in the
164	164	property being destroyed, conveyed, alienated, encumbered, further
165	165	encumbered, disposed of, purchased, received, removed from the
166	166	jurisdiction of the court, concealed, or otherwise made unavailable for
167	167	forfeiture; and
168	168	(2) the need to preserve the availability of property through the entry
169	169	of the requested order outweighs the hardship on any owner or interest
170	170	holder against whom the order is to be entered.
171	171	(d) OnThe plaintiff's attorney shall have the burden of proving
172	172	beyond a reasonable doubt that the interest in the property is subject to
173	173	forfeiture. If the state proves that the interest in the property is subject to
174	174	forfeiture, the court shall make a determination of liability of a person for
175	175	conduct giving rise to forfeiture under this act,. If the court makes a
176	176	determination of liability, the court shall enter a judgment of forfeiture of
177	177	the property found to be subject to forfeiture described in the complaint
178	178	and shall also authorize the plaintiff's attorney or any law enforcement
179	179	officer to seize all property ordered forfeited which was not previously
180	180	seized or is not then under seizure. Following the entry of an order
181	181	declaring the property forfeited, the court, on application of the plaintiff's
182	182	attorney, may enter any appropriate order to protect the interest of the
183	183	seizing agency in the property ordered forfeited.
184	184	(e) Following the entry of an order of forfeiture under subsection (d),
185	185	the plaintiff's attorney may give notice of pending forfeiture, in the manner
186	186	provided in K.S.A. 60-4109, and amendments thereto, to all owners and
187	187	interest holders who have not previously been given notice.
188	188	(f) An owner of or interest holder in property that has been forfeited
189	189	and whose claim is not precluded may file a claim as described in K.S.A.
190	190	60-4111, and amendments thereto, within 60 days after initial notice of
191	191	pending forfeiture or after notice under subsection (e), whichever is earlier.
192	192	If the seizing agency does not recognize the claimed exemption, the
193	193	plaintiff's attorney shall file a complaint and the court shall hold the
194	194	hearing and determine the claim, without a jury, in the manner provided
195	195	for in rem judicial forfeiture actions in K.S.A. 60-4113, and amendments
196	196	thereto.
197	197	(g) In accordance with findings made at the hearing, the court may
198	198	amend the order of forfeiture if the court determines that any claimant has
199	199	established by a preponderance of the evidence that the claimant has an
200	200	interest in the property and that the claimant's interest is exempt under
201	201	K.S.A. 60-4106, and amendments thereto.
202	202	(h) Except as provided in K.S.A. 60-4112(c), and amendments
203	203	thereto, no person claiming an interest in property subject to forfeiture
204	204	under this act may intervene in a trial or appeal of a criminal action or in
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248	248	an in personam civil action involving the forfeiture of the property.
249	249	Sec. 3. K.S.A. 2022 Supp. 60-4113 and 60-4114 are hereby repealed.
250	250	Sec. 4. This act shall take effect and be in force from and after its
251	251	publication in the statute book.
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