SESSION OF 2024
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2606
As Recommended by House Committee on
Judiciary
Brief*
HB 2606 would amend several provisions of the Kansas
Standard Asset Seizure and Forfeiture Act (Act) as follows.
Conduct Giving Rise to Forfeiture (Section 1)
The bill would remove certain offenses from the list of
conduct and offenses giving rise to forfeiture under the Act,
whether or not there is a prosecution or conviction related to
the offense. Currently, all violations involving controlled
substances in Article 57 of the Criminal Code may give rise to
forfeiture under the Act. The bill would remove offenses
related to possession and other crimes associated with
personal use of controlled substances.
Exemptions to Forfeiture – Proportionality Determination
(Section 2)
The bill would remove language related to the court’s
duty to limit the scope of a proposed forfeiture to the extent
the court finds the effect of the forfeiture is grossly
disproportionate to the nature and severity of the owner’s
conduct prior to final judgment in a judicial forfeiture
proceeding. The bill would instead direct the court to
determine whether the proposed forfeiture is
unconstitutionally excessive pursuant to new provisions
created in Section 6 of the bill, if the court has not made this
determination earlier in the proceeding.
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*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org Seizure of Property – Request for Forfeiture Time
Limitations (Section 3)
Currently, the Act provides that the seizing agency must
forward to the appropriate county or district attorney a written
request for forfeiture within 45 days. The bill would reduce
this period to 14 days.
Upon the expiration of the 14-day time limitation, or
upon notification that the county or district attorney declines
the request (whichever occurs first), a local seizing agency
would have 14 days to request a state law enforcement
agency adopt the forfeiture or engage a private attorney to
represent the local seizing agency in the forfeiture
proceeding. The bill would provide the same 14-day time
limitation for a state seizing agency to engage an assistant
attorney general or other approved attorney to represent the
state seizing agency in the forfeiture proceeding.
If a local or state seizing agency fails to meet the time
limitations described above, the bill would require the seizing
agency to return the seized property to the owner or interest
holder within 30 days in the same manner as provided by
KSA 22-2512. [Note: KSA 22-2512 provides certain seized
property, such as dangerous drugs or hazardous materials,
must be destroyed or disposed of rather than returned.]
The bill would state nothing in this section would affect
time limitations related to initiating or filing a forfeiture
proceeding pursuant to law in Section 4 of the bill.
The bill would also prevent the seizing agency from
requesting, inducing, or otherwise coercing a person who
asserted rights as an owner or interest holder of the property
to waive in writing such property rights until forfeiture
proceedings commence.
2- 2606 Commencement of Forfeiture Proceedings – Probable
Cause Affidavit (Section 4)
The bill would require an affidavit describing probable
cause supporting forfeiture be filed in addition to the notice of
pending forfeiture or judicial forfeiture action in order to
commence forfeiture proceedings, and the forfeiture could
proceed only after a judge has determined there is probable
cause to believe the property is subject to forfeiture under the
Act.
The bill would require, when notice of a pending
forfeiture is mailed to an owner or interest holder, the notice
must include the probable cause affidavit described above.
Current law requires an affidavit describing “essential facts”
supporting forfeiture be provided with the notice.
The bill would amend law relating to the filing of liens for
the forfeiture of property to allow a plaintiff’s attorney to file a
lien only upon initiation of a forfeiture proceeding. Current law
provides a lien may be filed upon the initiation of any civil or
criminal proceeding relating to conduct giving rise to forfeiture
under the Act.
Notice of Claims Against Seized Property (Section 5)
The bill would require, after an owner or interest holder
has filed a claim against property seized for forfeiture, the
plaintiff’s attorney to file a notice of receipt of the claim with
the court, unless the claim was already filed. The filing would
be required to include a copy of the claim and documents
showing the date the claim was mailed and received.
3- 2606 Forfeiture Proceedings (Sections 6 – 8)
Forfeiture Proceedings, Generally (Section 6)
In law governing the procedure for judicial forfeiture
proceedings, the bill would remove existing language
providing for a probable cause hearing upon request of an
owner or interest holder of seized property to reflect the
changes made in Section 4 with respect to requiring a judge
determine probable cause supports the forfeiture proceeding
at the time of commencing the action.
The bill would state that an owner or interest holder may
petition the court for determination, or reconsideration of its
prior determination, that there is probable cause to support
forfeiture at any time prior to final judgment.
If the court finds that there is no probable cause for
forfeiture, the bill would specify that the court must order the
release of the property to the custody of the applicant, as
custodian for the court, or from a forfeiture lien pending the
outcome of a judicial proceeding under the Act.
The bill would add language allowing a person whose
property has been seized to petition the court to determine
whether the forfeiture is unconstitutionally excessive.
The plaintiff’s attorney would have the burden of
establishing that the forfeiture is proportional to the
seriousness of the offense giving rise to the forfeiture by clear
and convincing evidence. In making this determination, the
court could consider, but not be limited to:
●The seriousness of the offense;
●The extent of participation in the offense by the
person from whom the property was seized;
4- 2606 ●The extent to which the property was used in
committing the offense;
●The sentence imposed for committing the offense
that gave rise to forfeiture;
●The effect of the forfeiture on the livelihood of the
person from whom property was seized; and
●The fair market value of the property compared
with the property owner’s net worth.
The bill would require the court to automatically stay
discovery against the person from whom property was seized
and against the seizing agency in the forfeiture proceeding
during a related criminal proceeding alleging the same
conduct. The court could lift the automatic stay of discovery
with good cause shown. Current law provides the court
require the stay only upon a motion.
In Rem Proceedings – Burden of Proof (Section 7)
The bill would amend law governing in rem forfeiture
proceedings to require the plaintiff’s attorney prove by clear
and convincing evidence that the interest in the property is
subject to forfeiture rather than by a preponderance of the
evidence. [Note: An action in rem is a legal term meaning an
action filed against property.]
Judicial Disposition of Property – Fees and Costs (Section 8)
The bill would allow, rather than require, a court to order
a claimant who fails to establish that a substantial portion of
the claimant’s interest is exempt from forfeiture to pay
reasonable fees, expenses, and costs to any other claimant
establishing an exemption and to the seizing agency in
connection with that claimant.
5- 2606 In addition, if a claimant prevails and the court orders
the return of at least half of the property’s aggregate value,
the bill would require the court to order the seizing agency to
pay:
●Reasonable attorney fees and litigation costs to the
claimant;
●Post-judgment interest; and
●Any interest actually paid from the date of seizure
in cases involving currency, other negotiable
instruments, or the proceeds of an interlocutory
sale.
When there are multiple claims to the same property, the
bill would not make the seizing agency liable for attorney fees
and costs associated with any claim if the seizing agency:
●Promptly recognizes the claim;
●Promptly returns the claimant’s interest in the
property if it can be divided without difficulty and
there are no competing claims to that portion of the
property;
●Does not cause the claimant to incur additional
costs or fees; and
●Prevails in obtaining forfeiture with respect to one
or more of the other claims.
Disposition of Forfeited Property – Special Law
Enforcement Purpose (Section 9)
Current law provides that moneys in certain specified
forfeiture funds may only be used for 12 special law
enforcement purposes, described in continuing law. The bill
would add the payment of attorney fees, litigation costs, and
6- 2606 interest ordered by a court to this list of purposes for which
forfeiture funds may be used.
The bill would make technical amendments to remove
expired language in this section
Background
Representatives Owens and Patton requested the
Kansas Judicial Council study the topic of civil asset forfeiture
during the 2023 Legislative Interim. The Judicial Council
convened a Civil Asset Forfeiture Advisory Committee, which
met several times in the summer and fall of 2023 to discuss
possible reforms to the Act, including recommendations
regarding 2023 HB 2380. Following its study, the Advisory
Committee submitted its report and a draft of recommended
legislation to the Judicial Council.
In addition, the Legislative Coordinating Council
appointed a Special Committee on Civil Asset Forfeiture
during the 2023 Legislative Interim to further consider the
topic. The Special Committee met in December 2023 to
consider the Advisory Committee report, hear testimony from
various stakeholders, and make recommendations for civil
asset forfeiture reform measures to the 2024 Legislature.
The bill, based on recommendations made by the
Advisory Committee and Special Committee, was introduced
by the House Committee on Judiciary at the request of
Representative Owens.
[Note: SB 458, introduced by the Senate Committee on
Judiciary at the request of Senator Warren, contains many of
the same provisions.]
7- 2606 House Committee on Judiciary
In the House Committee hearing, Representative Owens
and representatives of Americans for Prosperity, Kansas
Bureau of Investigation (KBI), Kansas Justice Institute, and
Office of the Attorney General provided proponent testimony.
Proponents generally stated that the bill’s reforms will
enhance due process rights of individuals while allowing
forfeiture to remain an effective tool for law enforcement.
Written-only proponent testimony was provided by a
former Johnson County Sheriff, a private citizen, and
representatives of American Civil Liberties Union of Kansas
and the Libertarian Party of Kansas.
Written-only neutral testimony was provided by the
Superintendent of the Kansas Highway Patrol (KHP).
Opponent testimony was provided by representatives of
the Kansas Association of Chiefs of Police, the Kansas
Racing and Gaming Commission (KRGC), Kansas Peace
Officers Association, and Kansas Sheriffs Association.
The law enforcement representatives expressed
opposition to the bill’s provision requiring a court to order a
seizing agency pay fees to a prevailing claimant. The KRGC
representative expressed concern that the bill would have a
negative impact on the KRGC’s ability to combat illegal
gambling in the state.
No other testimony was provided.
Fiscal Information
According to the fiscal note prepared by the Division of
the Budget on the bill, KHP indicates enactment of the bill
would require the agency to pay reasonable legal fees for the
claimant in adverse court rulings if the claimant proves by
8- 2606 clear and convincing evidence that the property was not
subject to forfeiture. The agency notes that raising the
standard to clear and convincing evidence creates a more
rigorous standard to meet than a preponderance of evidence
standard. However, a precise fiscal effect cannot be
determined because the number of adverse decisions cannot
be estimated.
The Office of Judicial Administration indicates enactment
of the bill could require district court judges to address
petitions received and conduct hearings, consider additional
factors during hearings, and make findings. This could
increase the workload of the Judicial Branch. However, a
precise fiscal effect cannot be estimated.
KBI indicates enactment of the bill would not have a
fiscal effect on the agency’s operations. Any fiscal effect
associated with enactment of the bill is not reflected in The
FY 2025 Governor’s Budget Report.
Civil asset forfeiture; Kansas Standard Asset Seizure and Forfeiture Act
9- 2606