Session of 2024
HOUSE BILL No. 2606
By Committee on Judiciary
Requested by Representative Owens
1-25
AN ACT concerning seizure and forfeiture of property; relating to the
Kansas standard asset seizure and forfeiture act; specifying that certain
drug offenses do not give rise to forfeiture under the act; requiring
courts to make a finding that forfeiture is not excessive; restricting
actions prior to commencement of forfeiture proceedings; requiring
probable cause affidavit filing and review to commence forfeiture
proceedings; increasing the burden of proof required to forfeit property
to clear and convincing evidence; authorizing courts to order payment
of attorney fees and costs for certain claimants; amending K.S.A. 2023
Supp. 60-4104, 60-4106, 60-4107, 60-4109, 60-4111, 60-4112, 60-
4113, 60-4116 and 60-4117 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2023 Supp. 60-4104 is hereby amended to read as
follows: 60-4104. Conduct and offenses giving rise to forfeiture under this
act, whether or not there is a prosecution or conviction related to the
offense, are:
(a) All offenses which statutorily and specifically authorize forfeiture;
(b) violations involving controlled substances, as described in K.S.A.
21-5701 through 21-5717 21-5703, 21-5705, 21-5707, 21-5708(b), 21-
5709(a), (b)(1), (c) and (d), 21-5710, 21-5713(a), 21-5714 and 21-5716,
and amendments thereto;
(c) theft, as defined in K.S.A. 21-5801, and amendments thereto;
(d) criminal discharge of a firearm, as defined in K.S.A. 21-6308(a)
(1) and (a)(2), and amendments thereto;
(e) gambling, as defined in K.S.A. 21-6404, and amendments thereto,
and commercial gambling, as defined in K.S.A. 21-6406(a)(1), and
amendments thereto;
(f) counterfeiting, as defined in K.S.A. 21-5825, and amendments
thereto;
(g) unlawful possession or use of a scanning device or reencoder, as
described in K.S.A. 21-6108, and amendments thereto;
(h) medicaid fraud, as described in K.S.A. 21-5925 through 21-5934,
and amendments thereto;
(i) an act or omission occurring outside this state, which would be a
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violation in the place of occurrence and would be described in this section
if the act occurred in this state, whether or not it is prosecuted in any state;
(j) an act or omission committed in furtherance of any act or omission
described in this section including any inchoate or preparatory offense,
whether or not there is a prosecution or conviction related to the act or
omission;
(k) any solicitation or conspiracy to commit any act or omission
described in this section, whether or not there is a prosecution or
conviction related to the act or omission;
(l) terrorism, as defined in K.S.A. 21-5421, and amendments thereto,
illegal use of weapons of mass destruction, as defined in K.S.A. 21-5422,
and amendments thereto, and furtherance of terrorism or illegal use of
weapons of mass destruction, as described in K.S.A. 21-5423, and
amendments thereto;
(m) unlawful conduct of dog fighting and unlawful possession of dog
fighting paraphernalia, as defined in K.S.A. 21-6414(a) and (b), and
amendments thereto;
(n) unlawful conduct of cockfighting and unlawful possession of
cockfighting paraphernalia, as defined in K.S.A. 21-6417(a) and (b), and
amendments thereto;
(o) selling sexual relations, as defined in K.S.A. 21-6419, and
amendments thereto, promoting the sale of sexual relations, as defined in
K.S.A. 21-6420, and amendments thereto, and buying sexual relations, as
defined in K.S.A. 21-6421, and amendments thereto;
(p) human trafficking and aggravated human trafficking, as defined in
K.S.A. 21-5426, and amendments thereto;
(q) violations of the banking code, as described in K.S.A. 9-2012, and
amendments thereto;
(r) mistreatment of a dependent adult, as defined in K.S.A. 21-5417,
and amendments thereto;
(s) giving a worthless check, as defined in K.S.A. 21-5821, and
amendments thereto;
(t) forgery, as defined in K.S.A. 21-5823, and amendments thereto;
(u) making false information, as defined in K.S.A. 21-5824, and
amendments thereto;
(v) criminal use of a financial card, as defined in K.S.A. 21-5828, and
amendments thereto;
(w) unlawful acts concerning computers, as described in K.S.A. 21-
5839, and amendments thereto;
(x) identity theft and identity fraud, as defined in K.S.A. 21-6107(a)
and (b), and amendments thereto;
(y) electronic solicitation, as defined in K.S.A. 21-5509, and
amendments thereto;
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(z) felony violations of fleeing or attempting to elude a police officer,
as described in K.S.A. 8-1568, and amendments thereto;
(aa) commercial sexual exploitation of a child, as defined in K.S.A.
21-6422, and amendments thereto;
(bb) violations of the Kansas racketeer influenced and corrupt
organization act, as described in K.S.A. 21-6329, and amendments thereto;
(cc) indecent solicitation of a child and aggravated indecent
solicitation of a child, as defined in K.S.A. 21-5508, and amendments
thereto;
(dd) sexual exploitation of a child, as defined in K.S.A. 21-5510, and
amendments thereto; and
(ee) violation of a consumer protection order as defined in K.S.A. 21-
6423, and amendments thereto.
Sec. 2. K.S.A. 2023 Supp. 60-4106 is hereby amended to read as
follows: 60-4106. (a) Except as provided in this subsection, all property,
including all interests in property, described in K.S.A. 60-4105, and
amendments thereto, is subject to forfeiture subject to all mortgages, deeds
of trust, financing statements or security agreements properly of record
prior to the forfeiture held by an interest holder except that property
specifically exempted hereunder:.
(1) No real property or conveyance, or an interest therein, may be
forfeited under this act unless the offense or conduct giving rise to
forfeiture constitutes a felony.
(2) No conveyance used by any person as a common carrier in the
transaction of business as a common carrier is subject to forfeiture under
this act unless the owner or other person in charge of the conveyance is a
consenting party or privy to a violation of this act.
(3) No property is subject to forfeiture under this act if the owner or
interest holder acquired the property before or during the conduct giving
rise to the property's forfeiture, and such owner or interest holder:
(A) Did not know and could not have reasonably known of the act or
omission or that it was likely to occur; or
(B) acted reasonably to prevent the conduct giving rise to forfeiture.
(4) No property is subject to forfeiture if the owner or interest holder
acquired the property after the conduct giving rise to the property's
forfeiture, including acquisition of proceeds of conduct giving rise to
forfeiture, and such owner or interest holder:
(A) Acquired the property in good faith, for value; and
(B) was not knowingly taking part in an illegal transaction.
(5) (A) An interest in property acquired in good faith by an attorney
as reasonable payment or to secure payment for legal services in a criminal
matter relating to violations of this act or for the reimbursement of
reasonable expenses related to the legal services is exempt from forfeiture
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unless before the interest was acquired the attorney knew of a judicial
determination of probable cause that the property is subject to forfeiture.
(B) The state bears the burden of proving that an exemption claimed
under this section is not applicable. Evidence made available by the
compelled disclosure of confidential communications between an attorney
and a client other than nonprivileged information relating to attorney fees,
is not admissible to satisfy the state's burden of proof.
(b) Notwithstanding subsection (a), property is not exempt from
forfeiture, even though the owner or interest holder lacked knowledge or
reason to know that the conduct giving rise to property's forfeiture had
occurred or was likely to occur, if the:
(1) Person whose conduct gave rise to the property's forfeiture had
authority to convey the property of the person claiming the exemption to a
good faith purchaser for value at the time of the conduct;
(2) owner or interest holder is criminally responsible for the conduct
giving rise to the property's forfeiture, whether or not there is a prosecution
or conviction; or
(3) owner or interest holder acquired the property with notice of the
property's actual or constructive seizure for forfeiture under this act, or
with reason to believe that the property was subject to forfeiture under this
act.
(c) Prior to final judgment in a judicial forfeiture proceeding, a the
court shall 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 including, but not limited to, a
consideration of any of the following factors:
(1) The gain received or expected to be received by an owner from
conduct that allows forfeiture;
(2) the value of the property subject to forfeiture;
(3) the extent to which the property actually facilitated the criminal
conduct;
(4) the nature and extent of the owner's knowledge of the role of
others in the conduct that allows forfeiture of the property and efforts of
the owner to prevent the conduct; and
(5) the totality of the circumstances regarding the investigation
determine whether the proposed forfeiture is unconstitutionally excessive
pursuant to K.S.A. 60-4112(g), and amendments thereto, if the court has
not made such determination earlier in the proceeding as a result of a
petition filed pursuant to K.S.A. 60-4112(g), and amendments thereto.
Sec. 3. K.S.A. 2023 Supp. 60-4107 is hereby amended to read as
follows: 60-4107. (a) Property may be seized for forfeiture by a law
enforcement officer upon process issued by the district court. The court
may issue a seizure warrant on an affidavit under oath demonstrating that
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probable cause exists for the property's forfeiture or that the property has
been the subject of a previous final judgment of forfeiture in the courts of
any state or of the United States. The court may order that the property be
seized on such terms and conditions as are reasonable in the discretion of
the court. The order may be made on or in connection with a search
warrant. All real property is to be seized constructively or pursuant to a
pre-seizure adversarial judicial determination of probable cause, except
that this determination may be done ex parte when the attorney for the
state has demonstrated exigent circumstances to the court.
(b) Property may be seized for forfeiture by a law enforcement officer
without process on probable cause to believe the property is subject to
forfeiture under this act.
(c) Property may be seized constructively by:
(1) Posting notice of seizure for forfeiture or notice of pending
forfeiture on the property.
(2) Giving notice pursuant to K.S.A. 60-4109, and amendments
thereto.
(3) Filing or recording in the public records relating to that type of
property notice of seizure for forfeiture, notice of pending forfeiture, a
forfeiture lien or a lis pendens. Filings or recordings made pursuant to this
act are not subject to a filing fee or other charge, except that court costs
may be assessed and, if assessed, shall include the amount of the docket
fee prescribed by K.S.A. 60-2001, and amendments thereto, and any
additional court costs accrued in the action.
(d) The seizing agency shall make reasonable effort to provide notice
of the seizure to the person from whose whom possession or control of the
property was seized and any interest holder of record within 30 days of
seizing the property. If no person is in possession or control, the seizing
agency may attach the notice to the property or to the place of the
property's seizure or may make a reasonable effort to deliver the notice to
the owner of the property. The notice shall contain a general description of
the property seized, the date and place of seizure, the name of the seizing
agency and the address and telephone number of the seizing officer or
other person or agency from whom information about the seizure may be
obtained.
(e) A person who acts in good faith and in a reasonable manner to
comply with an order of the court or a request of a law enforcement officer
is not liable to any person on account of acts done in reasonable
compliance with the order or request. No liability may attach from the fact
that a person declines a law enforcement officer's request to deliver
property.
(f) A possessory lien of a person from whose whom possession of the
property is seized is not affected by the seizure.
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(g) When property is seized for forfeiture under this act, the seizing
agency shall, within 45 days of 14 days after such seizure, forward to the
county or district attorney in whose jurisdiction the seizure occurred, a
written request for forfeiture which shall include a statement of facts and
circumstances of the seizure, the estimated value of the property, the
owner and lienholder of the property, the amount of any lien, and a
summary of the facts relied on for forfeiture.
(h) (1) Upon receipt of a written request for forfeiture from a local
law enforcement agency, the county or district attorney shall accept or
decline the request within 14 days. If
(2) Upon the expiration of the 14-day time limitation provided in
paragraph (1) or upon notification that the county or district attorney
declines such request, or fails to answer whichever occurs first, the seizing
agency may has 14 days to:
(1)(A) Request a state law enforcement agency that enforces this act
to adopt the forfeiture; or
(2)(B) engage an attorney, approved by the county or district attorney,
to represent the agency in the forfeiture proceeding, but in no event shall
the county or district attorney approve an attorney with whom the county
or district attorney has a financial interest, either directly or indirectly.
(3) Upon the expiration of the 14-day time limitation provided in
paragraph (2), if a state law enforcement agency has not adopted the
forfeiture or the seizing agency has not engaged an attorney to represent
the agency, the property that was seized for forfeiture shall be returned
within 30 days to the owner or interest holder or as provided for the same
kind of property in K.S.A. 22-2512, and amendments thereto.
(i) (1) Upon receipt of a written request for forfeiture from a state law
enforcement agency, the county or district attorney shall accept or decline
the request within 14 days. If
(2) Upon the expiration of the 14-day time limitation provided in
paragraph (1) or upon notification that the county or district attorney
declines such request, or fails to answer whichever occurs first, the seizing
agency may has 14 days to engage an assistant attorney general or other
attorney approved by the attorney general to represent the agency in the
forfeiture proceeding, but in no event shall the attorney general approve an
attorney with whom the attorney general has a financial interest, either
directly or indirectly.
(3) Upon the expiration of the 14-day time limitation provided in
paragraph (2), if the seizing agency has not engaged an attorney to
represent the agency, the property that was seized for forfeiture shall be
returned within 30 days to the owner or interest holder or as provided for
the same kind of property in K.S.A. 22-2512, and amendments thereto.
(j) Nothing in subsection (h) or (i) shall affect the time limitations for
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initiating or filing a forfeiture proceeding pursuant to K.S.A. 60-4109, and
amendments thereto,
(k) A county or district attorney or the attorney general shall not
request or receive any referral fee or personal financial benefit, either
directly or indirectly, in any proceeding conducted under this act.
(k)(l) Nothing in this act shall prevent the attorney general, an
employee of the attorney general or an authorized representative of the
attorney general from conducting forfeiture proceedings under this act.
(l)(m) Nothing in this act shall prevent a seizing agency from
requesting federal adoption of a seizure. It shall not be necessary to obtain
any order pursuant to K.S.A. 22-2512, and amendments thereto, to release
any seized property to a federal agency if the county or district attorney
approves of such transfer.
(m)(n) Nothing in this act shall prevent a seizing agency, or the
plaintiff's attorney on behalf of the seizing agency, from settling any
alleged forfeiture claim against property before or during forfeiture
proceedings. Such settlement shall be in writing and shall be approved, if a
local agency, by the county or district attorney or, if a state agency, by the
attorney general's office and a district court judge. No hearing or other
proceeding shall be necessary. The records of settlements occurring prior
to commencement of judicial forfeiture proceedings in the district court
shall be retained by the county or district attorney for not less than five
years.
(n)(o) Settlements under this act shall not be conditioned upon any
disposition of criminal charges.
(p) When property is seized for forfeiture under this act, the seizing
agency shall not request, induce or otherwise coerce a person who has at
any time asserted rights as an owner or interest holder of such property to
waive in writing such rights in the property until forfeiture proceedings
are commenced pursuant to K.S.A. 60-4109, and amendments thereto.
Sec. 4. K.S.A. 2023 Supp. 60-4109 is hereby amended to read as
follows: 60-4109. (a) (1)(A) Forfeiture proceedings shall be commenced
by filing:
(i) A notice of pending forfeiture or a judicial forfeiture action:; and
(ii) an affidavit describing the probable cause supporting forfeiture.
(B) After an affidavit is filed under this section, further proceedings
shall occur only after a judge of the district court has determined from the
affidavit that there is probable cause to believe that the property is subject
to forfeiture pursuant to K.S.A. 60-4105, and amendments thereto.
(1)(2) If the plaintiff's attorney fails to initiate forfeiture proceedings
by notice of pending forfeiture within 90 days against property seized for
forfeiture or if the seizing agency fails to pursue forfeiture of the property
upon which a proper claim has been timely filed by filing a judicial
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forfeiture proceeding within 90 days after notice of pending forfeiture, the
property shall be released on the request of an owner or interest holder to
such owner's or interest holder's custody, as custodian for the court,
pending further proceedings pursuant to this act. Such custodianship shall
not exceed 90 days following the release to the owner or interest holder
unless an extension is authorized by the court for good cause shown.
(2)(3) If, after notice of pending forfeiture, a claimant files a petition
for recognition of exemption pursuant to K.S.A. 60-4110, and amendments
thereto, the plaintiff's attorney may delay filing the judicial forfeiture
proceeding for a total of 180 days after the notice of pending forfeiture
except that if an interest holder timely files a proper petition documenting
the complete nature and extent of such holder's interest, including all of the
contractual terms and current status, the plaintiff's attorney may delay
filing a judicial forfeiture proceeding only if such attorney provides each
such petitioner with a written recognition of exemption within 60 days
after the effective date of the notice of pending forfeiture, recognizing the
interest of such petitioner to the extent of documented outstanding
principal plus interest at the contract rate until paid and any attorney fees
ordered by a court pursuant to such contract.
(3)(4) Whenever notice of pending forfeiture or service of an in rem
complaint or notice of a recognition of exemption and statement of
nonexempt interests is required under this act, notice or service shall be
given in accordance with one of the following:
(A) If the owner's or interest holder's name and current address are
known, by either personal service by any person qualified to serve process
or by any law enforcement officer or by mailing a copy of the notice by
certified mail, return receipt requested, to the known address, pursuant to
the code of civil procedure;
(B) if the owner's or interest holder's name and address are required
by law to be on record with a municipal, county, state or federal agency to
perfect an interest in the property, and the owner's or interest holder's
current address is not known, by mailing a copy of the notice by certified
mail, return receipt requested, to any address of record with any of the
described agencies, pursuant to the code of civil procedure; or
(C) if the owner's or interest holder's address is not known and is not
on record as provided in subparagraph (B), or the owner's or interest
holder's interest is not known, or if service by certified mail was attempted
pursuant to subparagraph (A) or (B) and was not effective, by publication
in one issue of the official county newspaper, as defined by K.S.A. 64-101,
and amendments thereto, in the county in which the seizure occurred.
(4)(5) Notice is effective pursuant to the code of civil procedure,
except that notice of pending forfeiture of real property is not effective
until it is recorded. Notice of pending forfeiture shall include a description
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of the property, the date and place of seizure, the conduct giving rise to
forfeiture or the violation of law alleged and a summary of procedures and
procedural rights applicable to the forfeiture action. An When notice of
pending forfeiture is mailed to an owner or interest holder, the following
shall be included with the notice: (A) The affidavit describing the essential
facts probable cause supporting forfeiture shall be included with the
notice.; and (B) copies of judicial council forms for petitioning for
recognition of an exemption pursuant to K.S.A. 60-4110, and amendments
thereto, and for making a claim pursuant to K.S.A. 60-4111, and
amendments thereto, shall be provided with the notice.
(b) The plaintiff's attorney, without a filing fee, may file a lien for the
forfeiture of property upon the initiation of any civil or criminal
proceeding relating to conduct giving rise to forfeiture under this act or
upon seizure for forfeiture commencement of a forfeiture proceeding as
provided in subsection (a). The court shall not charge the plaintiff's
attorney a filing fee. Court costs may be assessed and, if assessed, shall
include the amount of the docket fee prescribed by K.S.A. 60-2001, and
amendments thereto, and any additional court costs accrued in the action.
A plaintiff's attorney may also file a forfeiture lien in this state in
connection with a proceeding or seizure for forfeiture in any other state
under a state or federal statute substantially similar to the relevant
provisions of this act. The filing constitutes notice to any person claiming
an interest in the seized property or in property owned by the named
person.
(1) The lien notice shall set forth the following:
(A) The name of the person and, in the discretion of the lienor, any
alias, or the name of any corporation, partnership, trust or other entity,
including nominees, that are owned entirely or in part or controlled by the
person; and
(B) the description of the seized property, the criminal or civil
proceeding that has been brought relating to conduct giving rise to
forfeiture under this act, the amount claimed by the lienor, the name of the
district court where the proceeding or action has been brought, and the
case number of the proceeding or action if known at the time of filing.
(2) A lien filed pursuant to this subsection applies to the described
seized property or to one named person, any aliases, fictitious names, or
other names, including the names of any corporation, partnership, trust, or
other entity, owned entirely or in part, or controlled by the named person,
and any interest in real property owned or controlled by the named person.
A separate forfeiture lien shall be filed for each named person.
(3) The notice of lien creates, upon filing, a lien in favor of the lienor
as it relates to the seized property or the named person or related entities.
The lien secures the amount of potential liability for civil judgment, and if
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applicable, the fair market value of seized property relating to all
proceedings under this act enforcing the lien. The notice of forfeiture lien
referred to in this subsection shall be filed in accordance with the
provisions of the laws of this state relating to the type of property that is
subject to the lien. The validity and priority of the forfeiture lien shall be
determined in accordance with applicable law pertaining to liens. The
lienor may amend or release, in whole or in part, a lien filed under this
subsection at any time by filing, without a filing fee, an amended lien in
accordance with this subsection which identifies the lien amended. The
lienor, as soon as practical after filing the lien, shall furnish to any person
named in the lien a notice of the filing of the lien. Failure to furnish notice
under this subsection shall not invalidate or otherwise affect the lien.
(4) Upon entry of judgment in the seizing agency's favor, the seizing
agency may proceed to execute on the lien as provided by law.
(5) A trustee, constructive or otherwise, who has notice that a notice
of forfeiture lien, or a notice of pending forfeiture, or a civil forfeiture
proceeding has been filed against the property or against any person or
entity for whom the person holds title or appears as record owner, shall
furnish within 14 days, to the seizing agency or the plaintiff's attorney all
of the following information, unless all of the information is of record in
the public records giving notice of liens on that type of property:
(A) The name and address of each person or entity for whom the
property is held;
(B) the description of all other property whose legal title is held for
the benefit of the named person; and
(C) a copy of the applicable trust agreement or other instrument, if
any, under which the trustee or other person holds legal title or appears as
record owner of the property.
(6) A trustee with notice who knowingly fails to comply with the
provisions of this subsection shall be guilty of a class B nonperson
misdemeanor.
(7) A trustee with notice who fails to comply with paragraph (5) is
subject to a civil penalty of $100 for each day of noncompliance. The court
shall enter judgment ordering payment of $100 for each day of
noncompliance from the effective date of the notice until the required
information is furnished or the seizing agency executes the seizing
agency's judgment lien under this section.
(8) To the extent permitted by the constitutions of the United States
and the state of Kansas, the duty to comply with paragraph (5) shall not be
excused by any privilege or provision of law of this state or any other state
or country which authorizes or directs that testimony or records required to
be furnished pursuant to paragraph (5) are privileged, confidential and
otherwise may not be disclosed.
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(9) A trustee who furnishes information pursuant to paragraph (5) is
immune from civil liability for the release of the information.
(10) An employee of the seizing agency or the plaintiff's attorney
who releases the information obtained pursuant to paragraph (5), except in
the proper discharge of official duties, is guilty of a class B nonperson
misdemeanor.
(11) If any information furnished pursuant to paragraph (5) is offered
in evidence, the court may seal that portion of the record or may order that
the information be disclosed in a designated way.
(12) A judgment or an order of payment entered pursuant to this
section becomes a judgment lien against the property alleged to be subject
to forfeiture.
Sec. 5. K.S.A. 2023 Supp. 60-4111 is hereby amended to read as
follows: 60-4111. (a) (1) Only an owner of or interest holder in property
seized for forfeiture may file a claim, and shall do so in the manner
provided in this section. The claim shall be mailed to the seizing agency
and to the plaintiff's attorney by certified mail, return receipt requested,
within 60 days after the effective date of notice of pending forfeiture.
(2) The plaintiff's attorney shall file a notice of receipt with the court
when a claim is received unless the claim was already filed with the court.
Such filing shall include a copy of the claim and documents showing the
date that the claim was mailed and received.
(b) The claim shall be signed by the claimant under penalty of
perjury, K.S.A. 21-5903, and amendments thereto, and shall set forth the
following:
(1) The caption of the proceedings and identifying number, if any, as
set forth on the notice of pending forfeiture or complaint, the name of the
claimant, and the name of the plaintiff's attorney who authorized the notice
of pending forfeiture or complaint;
(2) the address where the claimant will accept mail;
(3) the nature and extent of the claimant's interest in the property; and
(4) a detailed description of when and how the claimant obtained an
interest in the property.
(c) Substantial compliance with subsection (b) shall be deemed
sufficient.
(d) It is permissible to assert the right against self-incrimination in a
claim. If a claimant asserts the right, the court, in the court's discretion,
may draw an adverse inference from the assertion against the claimant.
The adverse inference shall not, by itself, be the basis of a judgment
against the claimant.
Sec. 6. K.S.A. 2023 Supp. 60-4112 is hereby amended to read as
follows: 60-4112. (a) A judicial forfeiture proceeding under this act is
subject to the provisions of this section.
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(b) The court, on application of the plaintiff's attorney, may enter any
restraining order or injunction, require the execution of satisfactory
performance bonds, create receiverships, appoint conservators, custodians,
appraisers, accountants or trustees, or take any other action to seize,
secure, maintain or preserve the availability of property subject to
forfeiture under this act, including a writ of attachment or a warrant for
such property's seizure, whether before or after the filing of a notice of
pending forfeiture or complaint.
(c) If property is seized for forfeiture or a forfeiture lien is filed
without a previous judicial determination of probable cause or order of
forfeiture or a hearing under K.S.A. 60-4114(c), and amendments thereto,
the court, on an application filed by an owner of or interest holder in the
property within 14 days after notice of the property's seizure for forfeiture
or lien, or actual knowledge of it, whichever is earlier, and after complying
with the requirements for claims in K.S.A. 60-4109, and amendments
thereto, after seven days' notice to the plaintiff's attorney, may issue an
order to show cause to the seizing agency, for a hearing on the sole issue
of whether probable cause for forfeiture of the property then exists. The
hearing shall be held within 30 days of the order to show cause unless
continued for good cause on motion of either party. If the court finds that
there is no probable cause for forfeiture of the property, or if the seizing
agency elects not to contest the issue, the property shall be released to the
custody of the applicant, as custodian for the court, or from the lien
pending the outcome of a judicial proceeding pursuant to this act. If the
court finds that probable cause for the forfeiture of the property exists, the
court shall not order the property released At any time prior to final
judgment, an owner or interest holder may petition the court for
determination or reconsideration of its prior determination that there is
probable cause to believe that the property is subject to forfeiture.
(d) All applications filed within the 14-day period prescribed by
subsection (c) shall be consolidated for a single hearing relating to each
applicant's interest in the property seized for forfeiture.
(e) A person charged with a criminal offense may apply at any time
before final judgment to the court where the forfeiture proceeding is
pending for the release of property seized for forfeiture, that is necessary
for the defense of the person's criminal charge. The application shall
satisfy the requirements under K.S.A. 60-4111(b), and amendments
thereto. The court shall hold a probable cause hearing if the applicant
establishes that:
(1) The person has not had an opportunity to participate in a previous
adversarial judicial determination of probable cause;
(2) the person has no access to other moneys adequate for the
payment of criminal counsel; and
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(3) the interest in property to be released is not subject to any claim
other than the forfeiture.
(f)(e) If the court finds that there is no probable cause for forfeiture of
the property, the court shall order the property released pursuant to
subsection (c) to the custody of the applicant, as custodian for the court,
or from a forfeiture lien pending the outcome of a judicial proceeding
pursuant to this act. If the seizing agency does not contest the hearing, the
court may release a reasonable amount of property for the payment of the
applicant's criminal defense costs. Property that has been released by the
court and that has been paid for criminal defense services actually
rendered is exempt under this act.
(g)(f) A defendant convicted in any criminal proceeding is precluded
from later denying the elements of the criminal offense of which the
defendant was convicted in any proceeding pursuant to this section. For
the purposes of this section, a conviction results from a verdict or plea of
guilty, including a plea of no contest or nolo contendere.
(g) (1) At any time following seizure pursuant to this act, the person
from whom possession or control of the property was seized may petition
the court to determine whether such forfeiture is unconstitutionally
excessive.
(2) The plaintiff's attorney has 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.
(3) In determining whether the forfeiture is unconstitutionally
excessive, the court may consider all relevant factors, including, but not
limited to:
(A) The seriousness of the offense;
(B) the extent of participation in the offense by the person from whom
possession or control of the property was seized;
(C) the extent to which the property was used in committing the
offense;
(D) the sentence imposed for committing the offense that gave rise to
forfeiture;
(E) the effect of the forfeiture on the livelihood of the person from
whom possession or control of the property was seized; and
(F) the fair market value of the property compared to the property
owner's net worth.
(h) In any proceeding under this act, if a claim is based on any
exemption provided for in this act, the burden of proving the existence of
the exemption is on the claimant, and is not necessary for the seizing
agency or plaintiff's attorney to negate the exemption in any application or
complaint.
(i) In hearings and determinations pursuant to this section, the court
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may receive and consider, in making any determination of probable cause
or reasonable cause, all evidence admissible in determining probable cause
at a preliminary hearing or in the issuance of a search warrant, together
with inferences therefrom from such admissible evidence.
(j) The totality of the circumstances shall determine if the property of
a person is subject to forfeiture under this act. Factors that may be
considered include, but are not limited to, the following:
(1) The person has engaged in conduct giving rise to forfeiture;
(2) the property was acquired by the person during that period of the
conduct giving rise to forfeiture or within a reasonable time after the
period;
(3) there was no likely source for the property other than the conduct
giving rise to forfeiture; and
(4) the proximity to contraband or an instrumentality giving rise to
forfeiture.
(k) A finding that property is the proceeds of conduct giving rise to
forfeiture does not require proof the property is the proceeds of any
particular exchange or transaction.
(l) A person who acquires any property subject to forfeiture is a
constructive trustee of the property, and such property's fruits, for the
benefit of the seizing agency, to the extent that such agency's interest is not
exempt from forfeiture. If property subject to forfeiture has been
commingled with other property, the court shall order the forfeiture of the
mingled property and of any fruits of the mingled property, to the extent of
the property subject to forfeiture, unless an owner or interest holder proves
that specified property does not contain property subject to forfeiture, or
that such owner's or interest holder's interest in specified property is
exempt from forfeiture.
(m) All property declared forfeited under this act vests in the law
enforcement agency seeking forfeiture on the date of commission of the
conduct giving rise to forfeiture together with the proceeds of the property
after that time. Any such property or proceeds subsequently transferred to
any person remain subject to forfeiture and thereafter shall be ordered
forfeited unless the transferee acquired the property in good faith, for
value, and was not knowingly taking part in an illegal transaction, and the
transferee's interest is exempt under K.S.A. 60-4106, and amendments
thereto.
(n) An acquittal or dismissal in a criminal proceeding shall not
preclude civil proceedings under this act, nor give rise to any presumption
adverse or contrary to any fact alleged by the seizing agency.
(o) On motion, The court shall automatically stay discovery against
the criminal defendant and against the seizing agency in civil proceedings
during a related criminal proceeding alleging the same conduct, after
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making provision to prevent loss to any party resulting from the delay.
Such a stay shall not be available pending any appeal by a defendant The
court may lift the automatic stay of discovery upon good cause shown.
(p) Except as otherwise provided by this act, all proceedings
hereunder under the act shall be governed by the rules of civil procedure
pursuant to K.S.A. 60-101 et seq., and amendments thereto.
(q) An action pursuant to this act shall be consolidated with any other
action or proceeding pursuant to this act or to such other foreclosure or
trustee sale proceedings relating to the same property on motion of the
plaintiff's attorney, and may be consolidated on motion of an owner or
interest holder.
Sec. 7. K.S.A. 2023 Supp. 60-4113 is hereby amended to read as
follows: 60-4113. (a) A judicial in rem forfeiture proceeding brought by
the plaintiff's attorney pursuant to a notice of pending forfeiture or verified
petition for forfeiture is also subject to the provisions of this section. If a
forfeiture is authorized by this act, it shall be ordered by the court in the in
rem action.
(b) An action in rem may be brought by the plaintiff's attorney in
addition to, or in lieu of, civil in personam forfeiture procedures. The
seizing agency may serve the complaint in the manner provided by K.S.A.
60-4109(a)(3), and amendments thereto, or as provided by the rules of
civil procedure.
(c) Only an owner of or an interest holder in the property who has
timely filed a proper claim may file an answer in an action in rem. For the
purposes of this section, an owner of or interest holder in property who has
filed a claim and answer shall be referred to as a claimant.
(d) The answer shall be signed by the claimant under penalty of
perjury, K.S.A. 21-5903, and amendments thereto, shall otherwise be in
accordance with the rules of civil procedure on answers and shall also set
forth the following:
(1) The caption of the proceedings and identifying number, if any, as
set forth on the notice of pending forfeiture or complaint and the name of
the claimant;
(2) the address where the claimant will accept mail;
(3) the nature and extent of the claimant's interest in the property; and
(4) a detailed description of when and how the claimant obtained an
interest in the property.
(e) Substantial compliance with subsection (d) shall be deemed
sufficient.
(f) It is permissible to assert the right against self-incrimination in an
answer. If a claimant asserts the right, the court, in the court's discretion,
may draw an adverse inference from the assertion against the claimant.
The adverse inference shall not, by itself, be the basis of a judgment
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against the claimant.
(g) The answer shall be filed within 21 days after service of the civil
in rem complaint.
(h) The issue shall be determined by the court alone. The plaintiff's
attorney shall have the initial burden of proving the interest in the property
is subject to forfeiture by a preponderance of the clear and convincing
evidence. If the state proves the interest in the property is subject to
forfeiture, the claimant has the burden of showing by a preponderance of
the evidence that the claimant has an interest in the property which is not
subject to forfeiture.
(i) If the plaintiff's attorney fails to meet the burden of proof for
forfeiture, or a claimant establishes by a preponderance of the evidence
that the claimant has an interest that is exempt under the provisions of
K.S.A. 60-4106, and amendments thereto, the court shall order the interest
in the property returned or conveyed to the claimant. The court shall order
all other property forfeited to the seizing agency and conduct further
proceedings pursuant to K.S.A. 60-4116 and 60-4117, and amendments
thereto.
Sec. 8. K.S.A. 2023 Supp. 60-4116 is hereby amended to read as
follows: 60-4116. (a) If no proper claims are timely filed in an action in
rem, or if no proper answer is timely filed in response to a complaint, the
plaintiff's attorney may apply for an order of forfeiture and allocation of
forfeited property pursuant to K.S.A. 60-4117, and amendments thereto.
Upon a determination by the court that the seizing agency's written
application established the court's jurisdiction, the giving of proper notice,
and facts sufficient to show probable cause for forfeiture, the court shall
order the property forfeited to the seizing agency.
(b) After final disposition of all claims timely filed in an action in
rem, or after final judgment and disposition of all claims timely filed in an
action in personam, the court shall enter an order that the seizing agency
has clear title to the forfeited property interest. Title to the forfeited
property interest and such property's proceeds shall be deemed to have
vested in the seizing agency on the commission of the conduct giving rise
to forfeiture under this act.
(c) If, in the discretion of the plaintiff's attorney, such plaintiff's
attorney has recognized in writing that an interest holder has an interest
that is exempt from forfeiture, the court, on application of the plaintiff's
attorney, may release or convey forfeited personal property to a regulated
interest holder on all of the following conditions:
(1) The interest holder has an interest which was acquired in the
regular course of business as an interest holder.
(2) The amount of the interest holder's encumbrance is readily
determinable and the amount has been reasonably established by proof
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made available by the plaintiff's attorney to the court.
(3) The encumbrance held by the interest holder seeking possession is
the only interest exempted from forfeiture and the order forfeiting the
property to the seizing agency transferred all of the rights of the owner
prior to forfeiture, including rights of redemption to the seizing agency.
(4) After the court's release or conveyance, the interest holder shall
dispose of the property by a commercially reasonable public sale, and
within 14 days of disposition shall tender to the seizing agency the amount
received at disposition less the amount of the interest holder's
encumbrance and reasonable expense incurred by the interest holder in
connection with the sale or disposal.
(d) On order of the court forfeiting the subject property, the seizing
agency may transfer good and sufficient title to any subsequent purchaser
or transferee, unless satisfied and released earlier, subject to all mortgages,
deeds of trust, financing statements or security agreements of record prior
to the forfeiture held by an interest holder and the title shall be recognized
by all courts, by this state, and by all agencies of and any political
subdivision. Likewise on entry of judgment in favor of a person claiming
an interest in the property that is subject to proceedings to forfeit property
under this act, the court shall enter an order that the property or interest in
property shall be released or delivered promptly to that person free of liens
and encumbrances under this act and the person's cost bond shall be
discharged.
(e) Upon motion by the plaintiff's attorney, if it appears after a
hearing there was reasonable cause for the seizure for forfeiture or for the
filing of the notice of pending forfeiture or complaint, the court shall cause
a finding to be entered that reasonable cause existed, or that any such
action was taken under a reasonable good faith belief that it was proper,
and the claimant is not entitled to costs or damages, and the person or
seizing agency who made the seizure, and the plaintiff's attorney, are not
liable to suit or judgment on account of the seizure, suit or prosecution.
Nothing in this subsection shall affect whether a claimant is entitled to
payment of attorney fees, litigation costs and interest pursuant to
subsection (f).
(f) (1) The court shall may order a claimant who fails to establish that
a substantial portion of the claimant's interest is exempt from forfeiture
under K.S.A. 60-4105, and amendments thereto, to pay the reasonable
costs and expenses of any claimant who established such claimant's
interest is exempt from forfeiture under K.S.A. 60-4105, and amendments
thereto, and to pay the reasonable costs and expenses of the seizing agency
for the investigation and litigation of the matter, including reasonable
attorney fees, in connection with that claimant.
(2) In any proceeding in which the court finds that the claimant has
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prevailed by ordering the return of at least half of the aggregate value of
the claimant's interest in the property or currency in which the claimant
asserted an interest, the court shall order the seizing agency to pay:
(A) Reasonable attorney fees and other litigation costs incurred by
the claimant;
(B) post judgment interest; and
(C) in cases involving currency, other negotiable instruments or the
proceeds of an interlocutory sale, any interest actually paid from the date
of seizure.
(g) If there are multiple claims to the same property, the seizing
agency shall not be liable for attorney fees and costs associated with any
claim if the seizing agency:
(1) Promptly recognizes such claim;
(2) promptly returns the interest of the claimant in the property to the
claimant, if the property can be divided without difficulty and there are no
competing claims to that portion of the property;
(3) does not cause the claimant to incur additional costs or fees; and
(4) prevails in obtaining forfeiture with respect to one or more of the
other claims.
(h) If more than one law enforcement agency is substantially involved
in effecting a forfeiture pursuant to this act, and no interagency agreement
exists, the court shall equitably distribute the proceeds among such
agencies.
(h)(i) Notwithstanding any other provision of law, upon the request of
the intellectual property owner, all seized items bearing a counterfeit mark
shall be released to the intellectual property owner for destruction or
disposition. If the intellectual property owner does not request release of
seized items bearing a counterfeit mark, such items shall be destroyed
unless the intellectual property owner consents to another disposition.
Sec. 9. K.S.A. 2023 Supp. 60-4117 is hereby amended to read as
follows: 60-4117. Except as provided in K.S.A. 65-7014, and amendments
thereto: (a) When property is forfeited under this act, the law enforcement
agency may:
(1) Retain such property for official use or transfer the custody or
ownership to any local, state or federal agency, subject to any lien
preserved by the court;
(2) destroy or use for investigative or training purposes, any illegal or
controlled substances and equipment or other contraband, provided that
materials necessary as evidence shall be preserved;
(3) sell property which is not required by law to be destroyed and
which is not harmful to the public:
(A) All property, except real property, designated by the seizing
agency to be sold shall be sold at public sale to the highest bidder for cash
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without appraisal. The seizing agency shall first cause notice of the sale to
be made by publication at least once in an official county newspaper as
defined by K.S.A. 64-101, and amendments thereto. Such notice shall
include the time, place, and conditions of the sale and description of the
property to be sold. Nothing in this subsection shall prevent a state agency
from using the state surplus property system and such system's procedures
shall be sufficient to meet the requirements of this subsection.
(B) Real property may be sold pursuant to subsection (a)(3)(A), or
the seizing agency may contract with a real estate company, licensed in
this state, to list, advertise and sell such real property in a commercially
reasonable manner.
(C) No employee or public official of any agency involved in the
investigation, seizure or forfeiture of seized property may purchase or
attempt to purchase such property; or
(4) salvage the property, subject to any lien preserved by the court.
(b) When firearms are forfeited under this act, the firearms in the
discretion of the seizing agency, shall be destroyed, used within the seizing
agency for official purposes, traded to another law enforcement agency for
use within such agency or given to the Kansas bureau of investigation for
law enforcement, testing, comparison or destruction by the Kansas bureau
of investigation forensic laboratory.
(c) The proceeds of any sale shall be distributed in the following
order of priority:
(1) For satisfaction of any court preserved security interest or lien, or
in the case of a violation, as defined by K.S.A. 60-4104(i), and
amendments thereto, the proceeds shall be remitted to the state treasurer in
accordance with the provisions of K.S.A. 75-4215, and amendments
thereto. Upon receipt of such remittance, the state treasurer shall deposit
the entire amount into the state treasury to the credit of the medicaid fraud
reimbursement fund;
(2) thereafter, for payment of all proper expenses of the proceedings
for forfeiture and disposition, including expenses of seizure, inventory,
appraisal, maintenance of custody, preservation of availability, advertising,
service of process, sale and court costs;
(3) reasonable attorney fees:
(A) If the plaintiff's attorney is a county or district attorney, an
assistant, or another governmental agency's attorney, fees shall not exceed
15% of the total proceeds, less the amounts of subsection (c)(1) and (2), in
an uncontested forfeiture nor 20% of the total proceeds, less the amounts
of subsection (c)(1) and (2), in a contested forfeiture. Such fees shall be
deposited in the county or city treasury and credited to the special
prosecutor's trust fund. Moneys in such fund shall not be considered a
source of revenue to meet normal operating expenditures, including salary
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enhancement. Such fund shall be expended by the county or district
attorney, or other governmental agency's attorney through the normal
county or city appropriation system and shall be used for such additional
law enforcement and prosecutorial purposes as the county or district
attorney or other governmental agency's attorney deems appropriate,
including educational purposes. All moneys derived from past or pending
forfeitures shall be expended pursuant to this act. The board of county
commissioners shall provide adequate funding to the county or district
attorney's office to enable such office to enforce this act. Neither future
forfeitures nor the proceeds therefrom shall be used in planning or
adopting a county or district attorney's budget;
(B) if the plaintiff's attorney is the attorney general and the conduct
and offense giving rise to forfeiture is pursuant to K.S.A. 60-4104(i), and
amendments thereto, fees shall not exceed 15% of the total proceeds, less
the amounts of subsection (c)(1) and (2) in an uncontested forfeiture nor
20% of the total proceeds, less the amounts of subsection (c)(1) and (2) in
a contested forfeiture. Such fees shall be remitted to the state treasurer in
accordance with the provisions of K.S.A. 75-4215, and amendments
thereto. Upon receipt of each such remittance, the state treasurer shall
deposit the entire amount in the state treasury to the credit of the medicaid
fraud prosecution revolving fund. Moneys paid into the medicaid fraud
prosecution revolving fund pursuant to this subsection shall be
appropriated to the attorney general for use by the attorney general in the
investigation and prosecution of medicaid fraud and abuse; or
(C) if the plaintiff's attorney is a private attorney, such reasonable fees
shall be negotiated by the employing law enforcement agency;
(4) repayment of law enforcement funds expended in purchasing of
contraband or controlled substances, subject to any interagency agreement.
(d) Any proceeds remaining shall be credited as follows, subject to
any interagency agreement:
(1) If the law enforcement agency is a state agency, the entire amount
shall be deposited in the state treasury and credited to such agency's state
forfeiture fund. There is hereby established in the state treasury the
following state funds: Kansas bureau of investigation state forfeiture fund,
Kansas attorney general's state medicaid fraud forfeiture fund, Kansas
highway patrol state forfeiture fund, Kansas department of corrections
state forfeiture fund and Kansas national guard counter drug state
forfeiture fund. Expenditures from the Kansas bureau of investigation state
forfeiture fund shall be made upon warrants of the director of accounts and
reports issued pursuant to vouchers approved by the attorney general or by
a person or persons designated by the attorney general. Expenditures from
the Kansas attorney general's state medicaid fraud forfeiture fund shall be
made upon warrants of the director of accounts and reports issued pursuant
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to vouchers approved by the attorney general or by a person or persons
designated by the attorney general. Expenditures from the Kansas highway
patrol state forfeiture fund shall be made upon warrants of the director of
accounts and reports issued pursuant to vouchers approved by the
superintendent of the highway patrol or by a person or persons designated
by the superintendent. Expenditures from the Kansas department of
corrections state forfeiture fund shall be made upon warrants of the
director of accounts and reports issued pursuant to vouchers approved by
the secretary of the department of corrections or by a person or persons
designated by the secretary. Expenditures from the Kansas national guard
counter drug state forfeiture fund shall be made upon warrants of the
director of accounts and reports issued pursuant to vouchers approved by
the adjutant general of Kansas or by a person or persons designated by the
adjutant general.
(2) If the law enforcement agency is a city or county agency, the
entire amount shall be deposited in such city or county treasury and
credited to a special law enforcement trust fund.
(e) (1) Moneys in the Kansas bureau of investigation state forfeiture
fund, Kansas highway patrol state forfeiture fund, Kansas department of
corrections state forfeiture fund, the special law enforcement trust funds
and the Kansas national guard counter drug state forfeiture fund shall not
be considered a source of revenue to meet normal operating expenses.
Such funds shall be expended by the agencies or departments through the
normal city, county or state appropriation system and shall be used for
such special, additional law enforcement purposes specified in subsection
(e)(2) as the law enforcement agency head deems appropriate. Neither
future forfeitures nor the proceeds from such forfeitures shall be used in
planning or adopting a law enforcement agency's budget.
(2) Moneys in the funds described in subsection (e)(1) shall be used
only for the following special, additional law enforcement purposes:
(A) The support of investigations and operations that further the law
enforcement agency's goals or missions;
(B) the training of investigators, prosecutors and sworn and non-
sworn law enforcement personnel in any area that is necessary to perform
official law enforcement duties;
(C) the costs associated with the purchase, lease, construction,
expansion, improvement or operation of law enforcement or detention
facilities used or managed by the recipient agency;
(D) the costs associated with the purchase, lease, maintenance or
operation of law enforcement equipment for use by law enforcement
personnel that supports law enforcement activities;
(E) the costs associated with the purchase of multi-use equipment and
operations used by both law enforcement and non-law enforcement
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personnel;
(F) the costs associated with a contract for a specific service that
supports or enhances law enforcement;
(G) the costs associated with travel and transportation to perform or
in support of law enforcement duties and activities;
(H) the costs associated with the purchase of plaques and certificates
for law enforcement personnel in recognition of a law enforcement
achievement, activity or training;
(I) the costs associated with conducting awareness programs by law
enforcement agencies;
(J) the costs associated with paying a state or local law enforcement
agency's matching contribution or share in a state or federal grant program
for items other than salaries;
(K) cash transfers from one state or local law enforcement agency to
another in support of the law enforcement agency's goals or missions; and
(L) transfers from a state or local law enforcement agency to a state,
county or local governmental agency or community non-profit
organization in support of the law enforcement agency's goals or missions;
and
(M) payment of attorney fees, litigation costs and interest ordered by
a court pursuant to K.S.A. 60-4116, and amendments thereto.
(3) Moneys in the funds described in subsection (e)(1) shall be
separated and accounted for in a manner that allows accurate tracking and
reporting of deposits and expenditures of the following categories of
money:
(A) Proceeds from forfeiture credited to the fund pursuant to this
section;
(B) proceeds from pending forfeiture actions under this act; and
(C) proceeds from forfeiture actions under federal law.
(f) Moneys in the Kansas attorney general's medicaid fraud forfeiture
fund shall defray costs of the attorney general in connection with the
duties of investigating and prosecuting medicaid fraud and abuse.
(g) (1) If the law enforcement agency is a state agency, such agency
shall compile and submit a forfeiture fund report to the legislature on or
before February 1 of each year. Such report shall include, but not be
limited to: (A) The fund balance on December 1; and (B) the deposits and
expenditures for the previous 12-month period ending December 1.
(2) If the law enforcement agency is a city or county agency, such
agency shall compile and submit annually a special law enforcement trust
fund report to the entity that has budgetary authority over such agency and
such report shall specify, for such period, the type and approximate value
of the forfeited property received, the amount of any forfeiture proceeds
received and how any of those proceeds were expended.
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(3) The provisions of this subsection shall expire on July 1, 2019.
Sec. 10. K.S.A. 2023 Supp. 60-4104, 60-4106, 60-4107, 60-4109, 60-
4111, 60-4112, 60-4113, 60-4116 and 60-4117 are hereby repealed.
Sec. 11. This act shall take effect and be in force from and after its
publication in the statute book.
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