Session of 2023
SENATE BILL No. 237
By Committee on Federal and State Affairs
2-10
AN ACT concerning the Kansas standard asset seizure and forfeiture act;
requiring a conviction prior to forfeiture; remitting proceeds to the state
general fund; requiring proof beyond a reasonable doubt that property
is subject to forfeiture; requiring seizing agencies to make forfeiture
reports more often; amending K.S.A. 2022 Supp. 60-4104, 60-4105,
60-4106, 60-4109, 60-4112, 60-4113, 60-4114, 60-4117 and 60-4127
and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 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 only after a felony conviction
related to the offense, are:
(a) All offenses which that statutorily and specifically authorize
forfeiture;
(b) violations involving controlled substances, as described in K.S.A.
2022 Supp. 21-5701 through 21-5717, and amendments thereto;
(c) theft, as defined in K.S.A. 2022 Supp. 21-5801, and amendments
thereto;
(d) criminal discharge of a firearm, as defined in K.S.A. 2022 Supp.
21-6308(a)(1) and (a)(2), and amendments thereto;
(e) gambling, as defined in K.S.A. 2022 Supp. 21-6404, and
amendments thereto, and commercial gambling, as defined in K.S.A. 2022
Supp. 21-6406(a)(1), and amendments thereto;
(f) counterfeiting, as defined in K.S.A. 2022 Supp. 21-5825, and
amendments thereto;
(g) unlawful possession or use of a scanning device or reencoder, as
described in K.S.A. 2022 Supp. 21-6108, and amendments thereto;
(h) medicaid fraud, as described in K.S.A. 2022 Supp. 21-5925
through 21-5934, and amendments thereto;
(i) an act or omission occurring outside this state, which that would
be a 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,
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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. 2022 Supp. 21-5421, and
amendments thereto, illegal use of weapons of mass destruction, as
defined in K.S.A. 2022 Supp. 21-5422, and amendments thereto, and
furtherance of terrorism or illegal use of weapons of mass destruction, as
described in K.S.A. 2022 Supp. 21-5423, and amendments thereto;
(m) unlawful conduct of dog fighting and unlawful possession of dog
fighting paraphernalia, as defined in K.S.A. 2022 Supp. 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. 2022 Supp. 21-6417(a)
and (b), and amendments thereto;
(o) selling sexual relations, as defined in K.S.A. 2022 Supp. 21-6419,
and amendments thereto, promoting the sale of sexual relations, as defined
in K.S.A. 2022 Supp. 21-6420, and amendments thereto, and buying
sexual relations, as defined in K.S.A. 2022 Supp. 21-6421, and
amendments thereto;
(p) human trafficking and aggravated human trafficking, as defined in
K.S.A. 2022 Supp. 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. 2022
Supp. 21-5417, and amendments thereto;
(s) giving a worthless check, as defined in K.S.A. 2022 Supp. 21-
5821, and amendments thereto;
(t) forgery, as defined in K.S.A. 2022 Supp. 21-5823, and
amendments thereto;
(u) making false information, as defined in K.S.A. 2022 Supp. 21-
5824, and amendments thereto;
(v) criminal use of a financial card, as defined in K.S.A. 2022 Supp.
21-5828, and amendments thereto;
(w) unlawful acts concerning computers, as described in K.S.A. 2022
Supp. 21-5839, and amendments thereto;
(x) identity theft and identity fraud, as defined in K.S.A. 2022 Supp.
21-6107(a) and (b), and amendments thereto;
(y) electronic solicitation, as defined in K.S.A. 2022 Supp. 21-5509,
and amendments thereto;
(z) felony violations of fleeing or attempting to elude a police officer,
as described in K.S.A. 8-1568, and amendments thereto;
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(aa) commercial sexual exploitation of a child, as defined in K.S.A.
2022 Supp. 21-6422, and amendments thereto;
(bb) violations of the Kansas racketeer influenced and corrupt
organization act, as described in K.S.A. 2022 Supp. 21-6329, and
amendments thereto;
(cc) indecent solicitation of a child and aggravated indecent
solicitation of a child, as defined in K.S.A. 2022 Supp. 21-5508, and
amendments thereto;
(dd) sexual exploitation of a child, as defined in K.S.A. 2022 Supp.
21-5510, and amendments thereto; and
(ee) violation of a consumer protection order as defined in K.S.A.
2022 Supp. 21-6423, and amendments thereto.
Sec. 2. K.S.A. 2022 Supp. 60-4105 is hereby amended to read as
follows: 60-4105. The following property is subject to forfeiture:
(a) Property described in a statute authorizing forfeiture;
(b) except as otherwise provided by law, all property, of every kind,
including, but not limited to, cash and negotiable instruments and the
whole of any lot or tract of land and any appurtenances or improvements
to real property, that is either:
(1) Furnished or intended to be furnished by any person in an
exchange that constitutes conduct an offense giving rise to forfeiture; or
(2) used or intended to be used in any manner to facilitate conduct an
offense giving rise to forfeiture, including, but not limited to, any
electronic device, computer, computer system, computer network or any
software or data owned by the defendant which is used during the
commission of an offense listed in K.S.A. 60-4104, and amendments
thereto;
(c) all proceeds of any conduct an offense giving rise to forfeiture;
(d) all property of every kind, including, but not limited to, cash and
negotiable instruments derived from or realized through any proceeds
which that were obtained directly or indirectly from the commission of an
offense listed in K.S.A. 60-4104, and amendments thereto;
(e) all weapons possessed, used, or available for use in any manner to
facilitate conduct an offense giving rise to forfeiture;
(f) ownership or interest in real property that is a homestead, to the
extent the homestead was acquired with proceeds from conduct an offense
giving rise to forfeiture;
(g) contraband, which shall be seized and summarily forfeited to the
state without regard to the procedures set forth in this act;
(h) all controlled substances, raw materials, controlled substance
analogs, counterfeit substances, or imitation controlled substances that
have been manufactured, distributed, dispensed, possessed, or acquired in
violation of the laws of this state; and
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(i) any items bearing a counterfeit mark.
Sec. 3. K.S.A. 2022 Supp. 60-4106 is hereby amended to read as
follows: 60-4106. (a) 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 the offense giving rise to
forfeiture.
(3) No property is subject to forfeiture under this act if the owner or
interest holder acquired the property before or during the conduct
commission of the offense 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 offense giving rise to
forfeiture.
(4) No property is subject to forfeiture if the owner or interest holder
acquired the property after the conduct commission of the offense giving
rise to the property's forfeiture, including acquisition of proceeds of
conduct an offense 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
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
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reason to know that the conduct offense giving rise to property's forfeiture
had occurred or was likely to occur, if the:
(1) Person whose conduct offense 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 offense;
(2) owner or interest holder is criminally responsible for the conduct
convicted of the offense 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 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 the offense;
(2) the value of the property subject to forfeiture;
(3) the extent to which the property actually facilitated the criminal
conduct offense giving rise to forfeiture;
(4) the nature and extent of the owner's knowledge of the role of
others in the conduct offense that allows forfeiture of the property and
efforts of the owner to prevent the conduct such offense; and
(5) the totality of the circumstances regarding the investigation.
Sec. 4. K.S.A. 2022 Supp. 60-4109 is hereby amended to read as
follows: 60-4109. (a) Forfeiture proceedings shall be commenced only
after a conviction for the offense giving rise to forfeiture by filing a notice
of pending forfeiture or a judicial forfeiture action:
(1) 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
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) 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
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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) 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) 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 of the
property, the date and place of seizure, the conduct offense giving rise to
forfeiture or the violation of law alleged and a summary of procedures and
procedural rights applicable to the forfeiture action. An affidavit describing
the essential facts supporting forfeiture shall be included with the notice.
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
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forfeiture of property upon the initiation of any civil or criminal
proceeding relating to conduct an offense giving rise to forfeiture under
this act or upon seizure for forfeiture. 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 the offense 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
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
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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.
(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. 2022 Supp. 60-4112 is hereby amended to read as
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follows: 60-4112. (a) A judicial forfeiture proceeding under this act is
subject to the provisions of this section.
(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.
(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
(3) the interest in property to be released is not subject to any claim
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other than the forfeiture.
(f) 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). 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) 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.
(h) (1) At any time following seizure pursuant to this act, the person
from whose 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 beyond a reasonable doubt at a hearing conducted by the court
without a jury. Such hearing may be a component of the associated trial
instead of a separate hearing.
(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 to which the person whose possession or control of the
property was seized participated in the offense;
(C) the extent to which the property was used in committing the
offense;
(D) the sentence imposed for committing the offense giving rise to
forfeiture;
(E) the punitive nature of the forfeiture; and
(F) the fair market value of the property compared to the property
owner's net worth.
(i) 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)(j) In hearings and determinations pursuant to this section, the court
may receive and consider, in making any determination of probable cause
or reasonable cause, all evidence admissible in determining probable cause
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at a preliminary hearing or in the issuance of a search warrant, together
with inferences therefrom.
(j)(k) 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 an offense giving rise to
forfeiture;
(2) the property was acquired by the person during that period of the
conduct offense 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
offense giving rise to forfeiture; and
(4) the proximity to contraband or an instrumentality giving rise to
forfeiture.
(k)(l) A finding that property is the proceeds of conduct an offense
giving rise to forfeiture does not require proof the property is the proceeds
of any particular exchange or transaction.
(l)(m) 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)(n) All property declared forfeited under this act vests in the law
enforcement agency seeking forfeiture on the date of commission of the
conduct offense 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 stay discovery against the criminal
defendant and against the seizing agency in civil proceedings during a
related criminal proceeding alleging the same conduct, after making
provision to prevent loss to any party resulting from the delay. Such a stay
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shall not be available pending any appeal by a defendant.
(p) Except as otherwise provided by this act, all proceedings
hereunder 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. 6. K.S.A. 2022 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 such forfeiture 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. 2022 Supp. 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
against the claimant.
(g) The answer shall be filed within 21 days after service of the civil
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in rem complaint.
(h) The issue shall be determined by the court alone. The plaintiff's
attorney shall have the initial burden of proving beyond a reasonable
doubt that the interest in the property is subject to forfeiture by a
preponderance of the 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 that 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. 7. K.S.A. 2022 Supp. 60-4114 is hereby amended to read as
follows: 60-4114. (a) (1) A judicial in personam forfeiture proceeding
brought by the plaintiff's attorney pursuant to an in personam civil action
alleging conduct an offense giving rise to forfeiture is also subject to the
provisions of this section. If a forfeiture is authorized by this act, it such
forfeiture shall be ordered by the court in the in personam action. The
action shall be in addition to or in lieu of in rem forfeiture procedures.
(2) In any proceeding pursuant to this section, the court, on
application of the plaintiff's attorney, may enter any order authorized by
K.S.A. 60-4112, and amendments thereto.
(b) The court may issue a temporary restraining order in an action
under this section on application of the plaintiff's attorney, without notice
or an opportunity for a hearing, if the plaintiff's attorney demonstrates that:
(1) There is probable cause to believe that in the event of a final
judgment, the property involved would be subject to forfeiture under the
provisions of this act; and
(2) a provision of notice would jeopardize the availability of the
property for forfeiture.
(c) Notice of the issuance of a temporary restraining order and an
opportunity for a hearing shall be given to persons known to have an
interest in the property. A hearing shall be held at the earliest possible date
in accordance with the applicable civil rule and shall be limited to the
issues of whether:
(1) There is a probability that the seizing agency will prevail on the
issue of forfeiture and that failure to enter the order could result in the
property being destroyed, conveyed, alienated, encumbered, further
encumbered, disposed of, purchased, received, removed from the
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jurisdiction of the court, concealed, or otherwise made unavailable for
forfeiture; and
(2) the need to preserve the availability of property through the entry
of the requested order outweighs the hardship on any owner or interest
holder against whom the order is to be entered.
(d) OnThe plaintiff's attorney shall have the burden of proving
beyond a reasonable doubt that the interest in the property is subject to
forfeiture. If the state proves that the interest in the property is subject to
forfeiture, the court shall make a determination of liability of a person for
conduct an offense giving rise to forfeiture under this act,. If the court
makes a determination of liability, the court shall enter a judgment of
forfeiture of the property found to be subject to forfeiture described in the
complaint and shall also authorize the plaintiff's attorney or any law
enforcement officer to seize all property ordered forfeited which was not
previously seized or is not then under seizure. Following the entry of an
order declaring the property forfeited, the court, on application of the
plaintiff's attorney, may enter any appropriate order to protect the interest
of the seizing agency in the property ordered forfeited.
(e) Following the entry of an order of forfeiture under subsection (d),
the plaintiff's attorney may give notice of pending forfeiture, in the manner
provided in K.S.A. 60-4109, and amendments thereto, to all owners and
interest holders who have not previously been given notice.
(f) An owner of or interest holder in property that has been forfeited
and whose claim is not precluded may file a claim as described in K.S.A.
60-4111, and amendments thereto, within 60 days after initial notice of
pending forfeiture or after notice under subsection (e), whichever is earlier.
If the seizing agency does not recognize the claimed exemption, the
plaintiff's attorney shall file a complaint and the court shall hold the
hearing and determine the claim, without a jury, in the manner provided
for in rem judicial forfeiture actions in K.S.A. 60-4113, and amendments
thereto.
(g) In accordance with findings made at the hearing, the court may
amend the order of forfeiture if the court determines that any claimant has
established by a preponderance of the evidence that the claimant has an
interest in the property and that the claimant's interest is exempt under
K.S.A. 60-4106, and amendments thereto.
(h) Except as provided in K.S.A. 60-4112(c), and amendments
thereto, no person claiming an interest in property subject to forfeiture
under this act may intervene in a trial or appeal of a criminal action or in
an in personam civil action involving the forfeiture of the property.
Sec. 8. K.S.A. 2022 Supp. 60-4117 is hereby amended to read as
follows: 60-4117. Except as provided in K.S.A. 65-7014, and amendments
thereto:
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(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 that is not required by law to be destroyed and
which that 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
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
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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
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
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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
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
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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
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.
(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
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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.
(3) The provisions of this subsection shall expire on July 1, 2019
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 state general fund.
Sec. 9. K.S.A. 2022 Supp. 60-4127 is hereby amended to read as
follows: 60-4127. (a) On or before July 1, 2019, The Kansas bureau of
investigation shall establish the Kansas asset seizure and forfeiture
repository. The repository shall gather information concerning each seizure
for forfeiture made by a seizing agency pursuant to the Kansas standard
asset seizure and forfeiture act including, but not limited to, the following:
(1) The name of the seizing agency or the name of the lead agency if
part of a multi-jurisdictional task force;
(2) the county where the seizure occurred;
(3) the date and time the seizure occurred;
(4) any applicable agency or district court case numbers for the
seizure;
(5) a description of the initiating law enforcement activity leading to
the seizure;
(6) a description of the specific location where the seizure occurred;
(7) the conduct or offense giving rise to the forfeiture;
(8) a description of the type of property seized and the estimated
value;
(9) a description of the type of contraband seized and the estimated
value;
(10) whether criminal charges were filed for an offense related to the
forfeiture and, if so, court and case number information for the criminal
charges;
(11) a description of the final disposition of the forfeiture action,
including a description of the disposition of any claim or exemption
asserted under this act;
(12) whether the forfeiture was transferred to the federal government
for disposition;
(13) the total cost of the forfeiture action, including attorney fees; and
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(14) the total amount of proceeds from the forfeiture action,
specifying the amount received by the seizing agency and the amount
received by any other agency or person.
(b) On and after July 1, 2019, The Kansas bureau of investigation
shall maintain the repository and an associated public website that allows
the public to access all reports made pursuant to this section. On or before
July 1, 2019, The Kansas bureau of investigation shall promulgate rules
and regulations to implement this section.
(c) On and after July 1, 2019, Each seizing agency shall report
information concerning each seizure for forfeiture to the Kansas asset
seizure and forfeiture repository as required by this section and the rules
and regulations promulgated pursuant to this section. The prosecuting
attorney shall submit information concerning each forfeiture action to the
seizing agency within 30 days after the final disposition of the forfeiture.
The seizing agency shall submit the required information to the repository
within 60 days after the final disposition of the forfeiture.
(d) On or before February 1, 2020, and annually on or before
February 1 thereafterOn or before January 1, April 1, July 1 and October
1 each year, each law enforcement agency shall compile and submit a
forfeiture fund report to the Kansas asset seizure and forfeiture repository
as required by this section and the rules and regulations promulgated
pursuant to this section.
(1) If the law enforcement agency is a state agency, the report shall
include, but not be limited to:
(A) The agency's state forfeiture fund balance on January 1 and
December 31 of the preceding calendar year the last day of the
immediately preceding calendar quarter; and
(B) the total amount of the deposits and a listing, by category, of
expenditures from January 1 through December 31 of the preceding
calendar year during the immediately preceding calendar quarter.
(2) If the law enforcement agency is a city or county agency, the
report shall include, but not be limited to:
(A) The agency's special law enforcement trust fund balance on
January 1 and December 31 of the preceding calendar year the last day of
the immediately preceding calendar quarter; and
(B) the total amount of the deposits and a listing, by category, of
expenditures from January 1 through December 31 of the preceding
calendar year during the immediately preceding calendar quarter.
(3) The report shall separate and account for:
(A) Deposits and expenditures from proceeds from forfeiture credited
to the fund pursuant to K.S.A. 60-4117, and amendments thereto;
(B) deposits and expenditures from proceeds from forfeiture actions
under federal law; and
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(C) amounts held by the agency related to pending forfeiture actions
under the Kansas standard asset seizure and forfeiture act.
(e) On March 1, 2020, and annually on March 1 thereafter February
1, May 1, August 1 and November 1 each year, the Kansas bureau of
investigation shall determine whether each agency's financial report
matches the agency's seizing report. If the Kansas bureau of investigation
determines that an agency's financial report does not substantially match
that agency's seizing report or the agency has not submitted a financial
report, the Kansas bureau of investigation shall notify such agency of the
difference in reports. Such agency shall correct the reporting error within
30 days. If the reporting error is not corrected within 30 days, the Kansas
bureau of investigation shall send such law enforcement agency, and the
county or district attorney for the county in which such law enforcement
agency is located, a certified letter notifying such agency that it is out of
compliance. Upon receipt of such letter, no forfeiture proceedings shall be
filed on property seized by such law enforcement agency. When such law
enforcement agency has achieved compliance with the reporting
requirements, the bureau shall send such law enforcement agency, and the
county or district attorney for the county in which such law enforcement
agency is located, a certified letter notifying such agency that it is in
compliance and forfeiture proceeding filings may continue pursuant to this
act. Annually, on or before April 15, the Kansas bureau of investigation
shall report to the legislature any law enforcement agencies in the state
that have failed to come into compliance with the reporting requirements
in subsection (d).
Sec. 10. K.S.A. 2022 Supp. 60-4104, 60-4105, 60-4106, 60-4109, 60-
4112, 60-4113, 60-4114, 60-4117 and 60-4127 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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