LRB-4231/1
PJH:emw
2015 - 2016 LEGISLATURE
January 7, 2016 - Introduced by Senators Nass,
Lasee and Wirch, cosponsored by
Representatives Tauchen, Jarchow, Craig, Knudson, Kessler, Murtha,
Goyke, Allen, Tittl, Gannon, Knodl and Hutton. Referred to Committee on
Labor and Government Reform.
SB521,1,11
1An Act to repeal 961.55 (1) (d) 1., 961.55 (1) (d) 2., 961.55 (1) (d) 3., 961.55 (1)
2(d) 4., 961.55 (5) (a), 961.55 (5) (e) 1., 961.55 (5) (e) 2., 973.075 (1) (b) 2m. and
3973.075 (5m);
to renumber and amend 961.55 (5) (e) (intro.) and 973.075 (1)
4(b) 1m. (intro.);
to amend 29.934 (1) (d), 961.55 (title), 961.55 (1) (intro.), 961.55
5(1) (d) (intro.), 961.55 (3) (intro.), 961.55 (5) (b), 961.555 (1), 961.555 (2) (a),
6973.075 (title), 973.075 (1) (intro.), 973.075 (1) (bg), 973.075 (1) (bm), 973.075
7(1) (d), 973.075 (1) (e), 973.075 (4), 973.075 (5) (intro.), 973.076 (1) (a) and
8973.076 (1) (b) 1.; and
to create 961.55 (1g), 961.55 (1k), 961.55 (1m), 961.55
9(1r), 961.555 (3m), 961.555 (5), 973.075 (1g), 973.075 (1k), 973.075 (1m),
10973.075 (1r), 973.075 (5r), 973.076 (3m) and 973.076 (5) of the statutes;
11relating to: forfeiture of property seized in relation to a crime.
Analysis by the Legislative Reference Bureau
This bill changes the way property is forfeited after it is seized in relation to a
crime.
Under current law, the state or a local law enforcement agency may acquire
certain property involved in the commission of a crime or seized in relation to a
criminal investigation through a forfeiture proceeding. The forfeiture law applies to
all property directly or indirectly derived from the commission of a crime. Current
law allows an agency to keep certain property for its own use, to transfer the property
to another agency, or to sell the property.
Under current law, the agency that seized the property may retain a set
percentage of the proceeds of selling the property to cover administrative and other
costs; the remainder goes into the state school fund. Under current law, local law
enforcement agencies may enter into agreements with federal authorities wherein
property that is seized in relation to a federal crime is turned over to the federal
authorities for forfeiture under federal law. Proceeds from selling the property are
shared between the federal authorities and local law enforcement agencies.
This bill allows property to be subject to forfeiture only if a person is convicted
of the crime related to the action for forfeiture and only if a court finds that the
property seized is proportional to the crime committed. The bill requires seized
property to be returned to innocent owners of the property unless the owners were
involved with or knowledgeable about the crime related to the property. Further, the
bill allows the court, upon petition by a person whose property was seized but not yet
forfeited, to return the property to the person under certain circumstances. Under
the bill, the person may not sell, give away, or burden the property and, if the person
is found to have committed the crime related to the property, must surrender the
property for forfeiture. The bill requires all proceeds of the sale of property to be
turned in to the state school fund.
The bill prohibits local law enforcement agencies from transferring property to
federal agents for forfeiture under federal law unless the value of the property
exceeds $50,000, the property was seized in relation to an interstate crime, or the
property may only be forfeited under federal law.
The bill also requires law enforcement agencies and the Department of Justice
to create publicly accessible reports on the seizures and forfeitures for each year.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB521,1
1Section
1. 29.934 (1) (d) of the statutes is amended to read:
SB521,2,32
29.934
(1) (d) The provisions of s. 973.075
(1) (b) 2m. and (5) (1m) apply to boats
3and vehicles, other than motor vehicles, under this subsection.
SB521,2
4Section
2. 961.55 (title) of the statutes is amended to read:
SB521,2,5
5961.55 (title)
Forfeitures; transfers to federal government.
SB521,3
6Section
3. 961.55 (1) (intro.) of the statutes is amended to read:
SB521,3,2
1961.55
(1) (intro.)
The Subject to subs. (1g), (1m), and (1r), the following are
2subject to forfeiture:
SB521,4
3Section
4. 961.55 (1) (d) (intro.) of the statutes is amended to read:
SB521,3,94
961.55
(1) (d) (intro.) All vehicles which are used, or intended for use, to
5transport, or in any manner to facilitate the transportation, for the purpose of sale
6or receipt of property described in pars. (a) and (b) or for the purpose of transporting
7any property or weapon used or to be used or received in the commission of any felony
8under this chapter,
but: except that a vehicle is not subject to forfeiture for a violation
9of s. 961.41 (3g) (b) to (g).
SB521,5
10Section
5. 961.55 (1) (d) 1. of the statutes is repealed.
SB521,6
11Section
6. 961.55 (1) (d) 2. of the statutes is repealed.
SB521,7
12Section
7. 961.55 (1) (d) 3. of the statutes is repealed.
SB521,8
13Section
8. 961.55 (1) (d) 4. of the statutes is repealed.
SB521,9
14Section
9. 961.55 (1g) of the statutes is created to read:
SB521,3,1715
961.55
(1g) No item is subject to forfeiture under this chapter unless a person
16is convicted of the criminal offense that was the basis for the seizure of the item or
17that is related to the action for forfeiture.
SB521,10
18Section
10. 961.55 (1k) of the statutes is created to read:
SB521,3,2219
961.55
(1k) (a) A person who is charged with a crime or subject to a forfeiture
20proceeding that gave rise to the seizure of property and who claims an ownership
21interest in the seized property may, at any time before the property is subject to
22forfeiture, petition the court to return the property to him or her.
SB521,3,2423
(b) In determining whether to return seized property to a person under this
24subsection, the court shall consider all of the following:
SB521,4,2
11. The seriousness of the alleged offense and its impact on the community,
2including the duration of the activity and the harm allegedly caused by the person.
SB521,4,33
2. The extent to which the person is alleged to have participated in the offense.
SB521,4,54
3. The extent to which the property was allegedly used in committing the
5offense.
SB521,4,66
4. The sentence or amount of forfeiture for the offense.
SB521,4,87
5. Whether the person is alleged to have completed or attempted to complete
8the offense.
SB521,4,99
6. The fair market value of the property.
SB521,4,1110
7. The value of the property to the person, including the hardship to the person
11if the property is not returned.
SB521,4,1212
8. The hardship to the person's family members if the property is not returned.
SB521,4,1613
(c) If a court orders property returned under this subsection, the court shall
14order the person not to sell, transfer, assign, or otherwise encumber the property
15until the court either orders the property returned under sub. (3) or forfeited under
16s. 961.555.
SB521,4,1917
(d) If the person is subsequently convicted of or found to have committed the
18offense, the court shall order the person to surrender the property for proceedings
19under s. 961.555.
SB521,11
20Section
11. 961.55 (1m) of the statutes is created to read:
SB521,4,2521
961.55
(1m) (a) A person who is not the person charged with or convicted of a
22crime that gave rise to the seizure of the property or the forfeiture proceeding and
23who claims an ownership interest in seized property has the burden of production to
24show that he or she has a legal right, title, or interest in the property and that one
25of the following is true:
SB521,5,2
11. He or she had the ownership interest at the time of the conduct that gave rise
2to the seizure of the property or the forfeiture proceeding.
SB521,5,43
2. He or she acquired the ownership interest after the time of the conduct that
4gave rise to the seizure of the property or the forfeiture proceeding.
SB521,5,75
(b) 1. If a person meets the burden under par. (a) 1., the state shall prove by a
6preponderance of the evidence that the person had actual or constructive knowledge
7of the conduct that gave rise to the forfeiture.
SB521,5,98
2. If a person meets the burden under par. (a) 2., the state shall prove by a
9preponderance of the evidence that one of the following is true:
SB521,5,1110
a. The person had actual or constructive knowledge that the property was
11subject to forfeiture when he or she acquired an ownership interest in the property.
SB521,5,1212
b. The person was not a bona fide purchaser of the property.
SB521,5,1513
(c) If the state does not meet the burden under par. (b) as to any property, the
14court shall find that the property is the property of an innocent owner and not subject
15to forfeiture under this chapter.
SB521,12
16Section
12. 961.55 (1r) of the statutes is created to read:
SB521,5,2017
961.55
(1r) No law enforcement officer or agency or state or local employee or
18agency may transfer property that may otherwise be seized and forfeited under this
19chapter to a federal law enforcement authority or other federal agency unless one of
20the following applies:
SB521,5,2221
(a) The value of the seized property exceeds $50,000, excluding the potential
22value of the sale of contraband.
SB521,5,2323
(b) The seized property may only be forfeited under federal law.
SB521,13
24Section
13. 961.55 (3) (intro.) of the statutes is amended to read:
SB521,6,11
1961.55
(3) (intro.) In the event of seizure under sub. (2), proceedings under sub.
2(4) shall be instituted promptly. All dispositions and forfeitures under this section
3and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent
4persons under
sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m). Any property seized
5but not forfeited shall be returned to its rightful owner. Any person claiming the
6right to possession of property seized may apply for its return to the circuit court for
7the county in which the property was seized. The court shall order such notice as it
8deems adequate to be given the district attorney and all persons who have or may
9have an interest in the property and shall hold a hearing to hear all claims to its true
10ownership. If the right to possession is proved to the court's satisfaction, it shall
11order the property returned if:
SB521,14
12Section
14. 961.55 (5) (a) of the statutes is repealed.
SB521,15
13Section
15. 961.55 (5) (b) of the statutes is amended to read:
SB521,6,2114
961.55
(5) (b) Sell that which is not required to be destroyed by law and which
15is not harmful to the public. The agency
may use 50 percent of the amount received
16for payment of forfeiture expenses. The remainder shall be deposited shall deposit
17all amounts received in the school fund as proceeds of the forfeiture.
In this
18paragraph, "forfeiture expenses" include all proper expenses of the proceedings for
19forfeiture and sale, including expenses of seizure, maintenance of custody,
20advertising, and court costs and the costs of investigation and prosecution
21reasonably incurred.
SB521,16
22Section
16. 961.55 (5) (e) (intro.) of the statutes is renumbered 961.55 (5) (e)
23and amended to read:
SB521,7,3
1961.55
(5) (e) If the property forfeited is money,
retain the sum of all of the
2following for payment of forfeiture expenses, as defined in par. (b), and deposit the
3remainder money in the school fund
:.
SB521,17
4Section
17. 961.55 (5) (e) 1. of the statutes is repealed.
SB521,18
5Section
18. 961.55 (5) (e) 2. of the statutes is repealed.
SB521,19
6Section
19. 961.555 (1) of the statutes is amended to read:
SB521,7,127
961.555
(1) Type of action; where brought. In an action brought to cause the
8forfeiture of any property seized under s. 961.55, the court may render a judgment
9in rem or against a party personally, or both. The circuit court for the county in which
10the property was seized shall have jurisdiction over any proceedings regarding the
11property when the action is commenced in state court.
Any Subject to s. 961.55 (1r),
12any property seized may be the subject of a federal forfeiture action.
SB521,20
13Section
20. 961.555 (2) (a) of the statutes is amended to read:
SB521,7,2414
961.555
(2) (a) The district attorney of the county within which the property
15was seized shall commence the forfeiture action within 30 days after
the seizure of
16the property, except that the defendant may request that the forfeiture proceedings
17be adjourned until after adjudication the defendant was convicted of any charge
18concerning a crime which was the basis for the seizure of the property.
The request
19shall be granted. The forfeiture action shall be commenced by filing a summons,
20complaint and affidavit of the person who seized the property with the clerk of circuit
21court, provided service of authenticated copies of those papers is made in accordance
22with ch. 801 within 90 days after filing upon the person from whom the property was
23seized and upon any person known to have a bona fide perfected security interest in
24the property.