SESSION OF 2024
SUPPLEMENTAL NOTE ON SENATE BILL NO. 458
As Amended by House Committee on Judiciary
Brief*
SB 458, as amended, would amend several provisions
of the Kansas Standard Asset Seizure and Forfeiture Act
(Act).
Conduct Giving Rise to Forfeiture (Section 1)
The bill would remove certain offenses from the list of
conduct and offenses giving rise to forfeiture under the Act,
whether or not there is a prosecution or conviction related to
the offense. Currently, all violations involving controlled
substances in Article 57 of the Criminal Code may give rise to
forfeiture under the Act. The bill would remove offenses
related to possession and other crimes associated with
personal use of controlled substances.
Exemptions to Forfeiture – Proportionality Determination
(Section 2)
The bill would remove language related to the court’s
duty to limit the scope of a proposed forfeiture to the extent
the court finds the effect of the forfeiture is grossly
disproportionate to the nature and severity of the owner’s
conduct prior to final judgment in a judicial forfeiture
proceeding. The bill would instead direct the court to
determine whether the proposed forfeiture is
unconstitutionally excessive pursuant to new provisions
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org created in Section 6 of the bill, if the court has not made this
determination earlier in the proceeding.
Seizure of Property — Seizing Agency Requirements and
Limitations (Section 3)
Currently, the Act provides that the seizing agency must
forward to the appropriate county or district attorney a written
request for forfeiture within 45 days. The bill would reduce
this period from 45 days to 14 days.
Upon the expiration of the 14-day time limitation
described above, or upon notification the county or district
attorney declines the request (whichever occurs first), a local
seizing agency would have 14 days to request a state law
enforcement agency adopt the forfeiture or engage a private
attorney to represent the local seizing agency in the forfeiture
proceeding. The bill would provide the same 14-day time
limitation for a state seizing agency to engage an assistant
attorney general, or other approved attorney, to represent the
state seizing agency in the forfeiture proceeding.
If a local or state seizing agency fails to meet the time
limitations described above, the bill would require the seizing
agency to return the seized property to the owner or interest
holder within 30 days in the same manner as provided by
KSA 22-2512. [Note: KSA 22-2512 provides certain seized
property, such as dangerous drugs or hazardous materials,
must be destroyed or disposed of rather than returned.]
The bill would specify nothing in this section would affect
time limitations related to initiating or filing a forfeiture
proceeding pursuant to continuing law.
The bill would also prevent the seizing agency from
requesting, inducing, or otherwise coercing a person who
asserted rights as an owner or interest holder of the property
to waive, in writing, such property rights until forfeiture
proceedings commence.
2- 458 Commencement of Forfeiture Proceedings — Probable
Cause Affidavit (Section 4)
The bill would require an affidavit describing probable
cause supporting forfeiture to be filed in addition to the notice
of pending forfeiture or judicial forfeiture action in order to
commence forfeiture proceedings, and the forfeiture could
proceed only after a judge has determined there is probable
cause to believe the property is subject to forfeiture under the
Act.
The bill would require, when notice of a pending
forfeiture is mailed to an owner or interest holder, the notice
to include the probable cause affidavit described above.
Current law requires an affidavit describing essential facts
supporting forfeiture be provided with the notice.
The bill would amend law relating to the filing of liens for
the forfeiture of property to allow a plaintiff’s attorney to file a
lien only upon the commencement of a forfeiture proceeding.
Current law provides a lien may be filed upon the initiation of
any civil or criminal proceeding relating to conduct giving rise
to forfeiture under the Act.
Notice of Claims Against Seized Property (Section 5)
The bill would require, after an owner or interest holder
has filed a claim against property seized for forfeiture, the
plaintiff’s attorney to file a notice of receipt of the claim with
the court, unless the claim was already filed. The filing would
be required to include a copy of the claim and documents
showing the date the claim was mailed and received.
3- 458 Forfeiture Proceedings (Sections 6 – 8)
Forfeiture Proceedings, Generally (Section 6)
In law governing the procedure for judicial forfeiture
proceedings, the bill would remove existing language
providing for a probable cause hearing upon request of an
owner or interest holder of seized property to reflect the
changes made in Section 4 with respect to requiring a judge
determine probable cause supports the forfeiture proceeding
at the time of commencing the action.
The bill would state that an owner or interest holder may
petition the court for determination, or reconsideration of its
prior determination, that there is probable cause to support
forfeiture at any time prior to final judgment.
If the court finds that there is no probable cause for
forfeiture, the bill would specify that the court must order the
release of the property to the custody of the applicant, as
custodian for the court, or from a forfeiture lien pending the
outcome of a judicial proceeding under the Act.
The bill would add language allowing a person whose
property has been seized to petition the court to determine
whether the forfeiture is unconstitutionally excessive. The
plaintiff’s attorney would have the burden of establishing that
the forfeiture is proportional to the seriousness of the offense
giving rise to the forfeiture by clear and convincing evidence.
In making this determination, the court could consider, but not
be limited to:
●The seriousness of the offense;
●The extent of participation in the offense by the
person from whom the property was seized;
●The extent to which the property was used in
committing the offense;
4- 458 ●The sentence imposed for committing the offense
that gave rise to forfeiture;
●The effect of the forfeiture on the livelihood of the
person from whom property was seized; and
●The fair market value of the property compared
with the property owner’s net worth.
The bill would require the court to automatically stay
discovery against the person whose property was seized and
against the seizing agency in the forfeiture proceeding during
a related criminal proceeding alleging the same conduct. The
court could lift the automatic stay of discovery with good
cause shown. Current law provides the court require the stay
only upon a motion.
In Rem Proceedings — Burden of Proof (Section 7)
The bill would amend law governing in rem forfeiture
proceedings to require the plaintiff’s attorney prove by clear
and convincing evidence, rather than preponderance of the
evidence, that the interest in the property is subject to
forfeiture. [Note: An action in rem is a legal term meaning an
action filed against property.]
Judicial Disposition of Property — Fees and Costs
(Section 8)
The bill would allow, rather than require, a court to order
a claimant who fails to establish that a substantial portion of
the claimant’s interest is exempt from forfeiture to pay
reasonable fees, expenses, and costs to any other claimant
establishing an exemption and to the seizing agency in
connection with that claimant.
In addition, if a claimant prevails, and the court orders
the return of at least half of the property’s aggregate value,
5- 458 the bill would require the court to order the seizing agency to
pay:
●Reasonable attorney fees and litigation costs to the
claimant;
●Post-judgment interest; and
●Any interest actually paid from the date of seizure
in cases involving currency, other negotiable
instruments, or the proceeds of an interlocutory
sale.
When there are multiple claims to the same property, the
bill would not make the seizing agency liable for attorney fees
and costs associated with any claim if the seizing agency:
●Promptly recognizes the claim;
●Promptly returns the claimant’s interest in the
property if it can be divided without difficulty and
there are no competing claims to that portion of the
property;
●Does not cause the claimant to incur additional
costs or fees; and
●Prevails in obtaining forfeiture with respect to one
or more of the other claims.
Disposition of Forfeited Property — Special Law
Enforcement Purpose (Section 9)
Current law provides that moneys in certain specified
forfeiture funds may only be used for 12 special law
enforcement purposes, described in continuing law. The bill
would add the payment of attorney fees, litigation costs, and
interest ordered by a court to this list of purposes for which
forfeiture funds may be used.
6- 458 The bill would make a technical amendment to remove
expired language in this section.
Background
Following the February 15, 2023, hearing on 2023 HB
2380 concerning various reforms to the Act, Representatives
Owens and Patton requested the Kansas Judicial Council
study that bill and the general topic of civil asset forfeiture
during the 2023 Legislative Interim. The Judicial Council
convened a Civil Asset Forfeiture Advisory Committee, which
met several times in the summer and fall of 2023 to discuss
possible reforms to the Act, including recommendations
regarding 2023 HB 2380. Following its study, the Advisory
Committee submitted its report and a draft of recommended
legislation to the Judicial Council.
In addition, the Legislative Coordinating Council
appointed a Special Committee on Civil Asset Forfeiture
during the 2023 Legislative Interim to further consider the
topic. The Special Committee met in December 2023 to
consider the Advisory Committee’s report, hear testimony
from various stakeholders, and make recommendations for
civil asset forfeiture reform measures to the 2024 Legislature.
Based on recommendations made by the Advisory
Committee and Special Committee, SB 458 was introduced
on February 6, 2024, by the Senate Committee on Judiciary
at the request of Senator Warren.
[Note: HB 2606, introduced by the House Committee on
Judiciary at the request of Representative Owens, contains
many of the same provisions.]
Senate Committee on Judiciary
In the Senate Committee hearing, Senator Faust-
Goudeau and representatives of Americans for Prosperity
(AFP) and Kansas Justice Institute (KJI) provided proponent
7- 458 testimony. The proponents generally stated the bill’s reforms
would enhance due process rights of individuals while
allowing forfeiture to remain an effective tool for law
enforcement.
Written-only proponent testimony was provided by a
former Johnson County Sheriff and a representative of the
Kansas Catholic Conference.
Opponent testimony was provided by the Director of the
KBI and representatives of Kansas Association of Chiefs of
Police, Kansas Peace Officers Association, Kansas Racing
and Gaming Association (KRGC), Kansas Sheriffs
Association, and the Office of the Attorney General (OAG).
The opponents generally expressed concern with provisions
requiring jury trials in all forfeiture proceedings and prohibiting
agencies to request federal transfer or adoption of local or
state forfeitures. The KRGC representative expressed
concern the bill would have a negative impact on the KRGC’s
ability to combat illegal gambling in the state.
Written-only opponent testimony was provided by the
Superintendent of the Kansas Highway Patrol (KHP) and
representatives of the City of Overland Park and the City of
Topeka.
No other testimony was provided.
House Committee on Judiciary
In the House Committee hearing, proponent testimony
was provided by representatives of AFP and KJI, whose
testimony was substantially similar to the testimony they
provided in the Senate Committee hearing.
Written-only proponent testimony was provided by
representatives of Justice Action Network and the Kansas
Catholic Conference.
8- 458 Opponent testimony was provided by the Director of the
KBI, a representative of the Kansas Association of Chiefs of
Police, Kansas Peace Officers Association, and Kansas
Sheriffs Association, the Superintendent of KHP, and
representatives of the Johnson County Sheriff’s Office and
the League of Kansas Municipalities (LKM). Opponents
reiterated concerns expressed in the House Committee
hearing, and noted some of the provisions contained in this
bill were not agreed upon by all members of the Advisory
Committee who worked to reach a compromise on civil asset
forfeiture reform measures.
Written-only opponent testimony was provided by
representatives of the OAG, the City of Overland Park, and
the City of Topeka.
No other testimony was provided.
The House Committee adopted amendments to:
●Restore language to current law regarding law
enforcement’s ability to request federal adoption of
seizures and to transfer forfeited property to a
federal agency;
●Remove language authorizing a claimant’s demand
for a jury trial in forfeiture proceedings; and
●Remove language requiring the KBI to report
certain forfeiture fund information to specified
legislative entities.
Fiscal Information
According to the fiscal note prepared by the Division of
the Budget on the bill, as introduced, the KBI states the right
to request a jury trial as well as prohibiting the request to
have the federal government adopt state seizures could
increase time spent on each case and increase expenditures
9- 458 to store seized assets. Depending on the number and size of
each forfeiture, the agency could need to lease storage space
to keep personal property and potentially hire additional
positions to manage and care for the property. However, the
agency cannot estimate the fiscal effect enactment of the bill
would have on agency expenditures.
The KHP states that prohibiting federal forfeiture would
increase both staff time and resources to litigate at the state
level. The Department of Justice (DOJ) currently carries the
cost of administrative processing, storage, equitable sharing,
and litigation. Because the bill would require forfeiture to be
the state’s responsibility, the KHP would have to hire outside
litigators or hire additional in-house counsel. If the agency
hired new attorney positions, it would cost $126,190 for each
position from agency fee funds. The agency cannot estimate
the cost for storing seized assets. The KHP states the
average expenditures from the forfeiture monies have been
$1.5 million over the last five years and are used to support
the mission of the Special Operations Units. Since FY 2019,
the agency has received $6.0 million in revenues from state
forfeiture and expended $7.7 million. In addition, the agency
receives $100,000 to reimburse its Special Operations Units
for overtime, fuel, training, and travel from the DOJ, which
could also be lost. Absent the ability to use funding from
seizures and the loss of reimbursement from the DOJ, the
agency would be forced to look for other sources of funding to
supplement the reduction in revenues to combat illegal
activities.
According to the Office of Judicial Administration, the bill
could require district court judges to address petitions
received, conduct hearings, consider additional factors during
hearings, and make findings. However, the agency cannot
estimate the fiscal effect those activities would have on
agency expenditures.
The Department of Wildlife and Parks states the bill
would not have a fiscal effect on its operating expenditures.
10- 458 Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2025 Governor’s Budget Report.
The Kansas Association of Counties states the bill could
have a fiscal effect on counties depending on the frequency
with which asset forfeiture is used, but cannot estimate a
precise fiscal effect. The League of Kansas Municipalities
indicates the bill could increase expenditures if cities are
required to assist with the implementation and enforcement of
the bill, but is unable to estimate such increase.
Civil asset forfeiture; Kansas Standard Asset Seizure and Forfeiture Act
11- 458