SB61: Bill Text

LRB-1662/2

CMH&MLJ:kjf&wlj

2017 - 2018 LEGISLATURE

2017 Senate BILL 61

February 21, 2017 - Introduced by Senators Craig, Nass, Wirch, Tiffany, Kapenga, Stroebel and Lasee, cosponsored by Representatives Tauchen, Jarchow, Kessler, Kooyenga, Sanfelippo, Sargent, Riemer, Brostoff, Kuglitsch, Thiesfeldt, Quinn, Knodl, Bowen, Kremer, Schraa, Sinicki, Wichgers, Mason, Skowronski and Ripp. Referred to Committee on Labor and Regulatory Reform.

SB61,1,12 An Act to repeal 961.55 (1) (d) 1., 961.55 (1) (d) 2., 961.55 (1) (d) 3., 961.55 (1) (d) 4., 961.55 (5) (a), 961.55 (5) (e) 1., 961.55 (5) (e) 2., 973.075 (1) (b) 2m. and 973.075 (5m); to renumber 973.075 (1) (b) 1m. a. to h.; to renumber and amend 961.55 (1) (d) (intro.), 961.55 (5) (e) (intro.) and 973.075 (1) (b) 1m. (intro.); to amend 29.934 (1) (d), 961.55 (1) (intro.), 961.55 (3) (intro.), 961.55 (5) (b), 961.555 (1), 961.555 (2) (a), 961.555 (3), 973.075 (1) (intro.), 973.075 (1) (bg), 973.075 (1) (bm), 973.075 (1) (d), 973.075 (1) (e), 973.075 (4), 973.075 (5) (intro.), 973.076 (1) (a), 973.076 (1) (b) 1. and 973.076 (3); and to create 961.55 (1g), 961.55 (1k), 961.55 (1m), 961.55 (1r), 961.555 (2) (am), 961.555 (3m), 961.555 (5), 961.555 (6), 973.075 (1g), 973.075 (1k), 973.075 (1m), 973.075 (1r), 973.075 (5r), 973.076 (1) (b) 1m., 973.076 (3m), 973.076 (5) and 973.076 (6) of the statutes; relating to: forfeiture of property seized in relation to a crime.

Analysis by the Legislative Reference Bureau

This bill changes the procedure for forfeiture of property after it has been 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 or used for the commission of a crime. This bill allows property to be subject to forfeiture only after a person has been convicted of the crime related to the forfeiture action and only if a court finds that the property seized is proportional to the crime committed. If the person is acquitted or the charges against the person are dropped, the court must order that his or her property be returned within 30 days. 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 his or her 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 after conviction. This bill also allows a person who prevails in a forfeiture action to recover reasonable attorney fees from the state.

This bill requires that all proceeds from the sale of all forfeited property be turned in to the state school fund. It also prohibits local law enforcement agencies from transferring property to federal agencies for forfeiture under federal law unless the value of the property exceeds $50,000 or the property can be forfeited only under federal law.

Under current law, forfeiture proceedings may proceed prior to an actual conviction in a criminal case, and any seized property will be held by the law enforcement agency until the case is finished.

Under current law, after a court orders that property be forfeited, an agency may keep certain property for its own use, transfer the property to another agency, or sell the property. The agency that seized the property may retain a set percentage of the proceeds of selling the property to cover administrative and other costs and the remainder goes into the state school fund. In addition, current law allows local law enforcement agencies to 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 then shared between the federal authorities and local law enforcement agencies.

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:

SB61,1 Section 1. 29.934 (1) (d) of the statutes is amended to read:

SB61,2,3 29.934 (1) (d) The provisions of s. 973.075 (1) (b) 2m. and (5) (1m) apply to boats and vehicles, other than motor vehicles, under this subsection.

SB61,2 Section 2. 961.55 (1) (intro.) of the statutes is amended to read:

SB61,3,3 961.55 (1) (intro.) The Subject to subs. (1g) and (1m), the following are subject to forfeiture:

SB61,3 Section 3. 961.55 (1) (d) (intro.) of the statutes is renumbered 961.55 (1) (d) and amended to read:

SB61,3,11 961.55 (1) (d) All vehicles which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in pars. (a) and (b) or for the purpose of transporting any property or weapon used or to be used or received in the commission of any felony under this chapter, but: except that a vehicle is not subject to forfeiture for a violation of s. 961.41 (3g) (b) to (g).

SB61,4 Section 4. 961.55 (1) (d) 1. of the statutes is repealed.

SB61,5 Section 5. 961.55 (1) (d) 2. of the statutes is repealed.

SB61,6 Section 6. 961.55 (1) (d) 3. of the statutes is repealed.

SB61,7 Section 7. 961.55 (1) (d) 4. of the statutes is repealed.

SB61,8 Section 8. 961.55 (1g) of the statutes is created to read:

SB61,3,19 961.55 (1g) No item is subject to forfeiture under this chapter unless a person is convicted of the criminal offense that was the basis for the seizure of the item or that is related to the action for forfeiture.

SB61,9 Section 9. 961.55 (1k) of the statutes is created to read:

SB61,3,25 961.55 (1k) (a) A person who has been subject to a seizure of property has a right to a pretrial hearing to determine the validity of the seizure. He or she may claim the right to possession of seized property at any time prior to 60 days before trial for the crime that gave rise to the seizure by motion to the court establishing the validity of the alleged interest in the property.

SB61,4,2 (b) The state shall file an answer to the motion filed under par. (a) showing probable cause for the seizure at least 10 days before the hearing of the motion.

SB61,4,4 (c) The court shall hear the motion filed under par. (a) no more than 30 days after the motion is filed.

SB61,4,7 (d) Either party may, by agreement or for good cause, move the court for one extension of no more than 10 days. Any such motion may be supported by affidavits or other submissions.

SB61,4,10 (e) Following hearing of the motion under par. (a), the court shall order the seized property to be returned to a person under this subsection if it finds any of the following:

SB61,4,13 1. It is likely that the final judgement will be that the state must return the property to the claimant, and the property is not reasonably required to be held for investigatory reasons.

SB61,4,18 2. The property is the only reasonable means for a defendant to pay for legal representation in the forfeiture or criminal proceeding, and the property is not reasonably required to be held for investigatory reasons. If the court makes this finding, it may order the return of funds or property sufficient to obtain legal counsel but less than the total amount seized, and require an accounting.

SB61,4,22 (f) If a court orders property returned under this subsection, the court shall order the person not to sell, transfer, assign, or otherwise encumber the property until the court orders the property either returned under sub. (3) or forfeited under s. 961.555.

SB61,4,25 (g) If the person is subsequently convicted of or found to have committed the offense, the court shall order the person to surrender the returned property for proceedings under s. 961.555.

SB61,10 Section 10. 961.55 (1m) of the statutes is created to read:

SB61,5,2 961.55 (1m) (a) The property of an innocent owner may not be forfeited.

SB61,5,7 (b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

SB61,5,11 (c) If the requisite showing under par. (b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

SB61,5,16 (d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

SB61,5,21 (e) If the requisite showing under par. (d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

SB61,5,25 (f) If the state does not meet the burden under par. (c) or (e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under this chapter and shall order the state to relinquish all claims of title to the property.

SB61,6,4 (g) The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

SB61,11 Section 11. 961.55 (1r) of the statutes is created to read:

SB61,6,11 961.55 (1r) (a) No law enforcement officer or agency or state or local employee or agency may enter into an agreement to transfer property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint task force, or by other means, for the purposes of forfeiture litigation unless the seized property includes more than $50,000 of U.S. currency or the property may be forfeited only under federal law.

SB61,6,18 (b) All law enforcement agencies shall refer seized property to the appropriate state prosecuting attorney for forfeiture under this chapter unless the seized property includes more than $50,000 of U.S. currency or the property may be forfeited only under federal law. If the seized property includes more than $50,000 of U.S. currency, the law enforcement agency may, but is not required to, refer or transfer the seized property to a federal agency for forfeiture litigation under federal law.

SB61,6,22 (c) Nothing in this subsection shall be construed to restrict a law enforcement officer or agency from collaborating with a federal agency to seize contraband or property that the law enforcement agency has probable cause to believe is subject to forfeiture through an intergovernmental joint task force.

SB61,12 Section 12. 961.55 (3) (intro.) of the statutes is amended to read:

SB61,7,9 961.55 (3) (intro.) In the event of seizure under sub. (2), proceedings under sub. (4) shall be instituted promptly. All dispositions and forfeitures under this section and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent persons under sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m). Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned if:

SB61,13 Section 13. 961.55 (5) (a) of the statutes is repealed.

SB61,14 Section 14. 961.55 (5) (b) of the statutes is amended to read:

SB61,7,19 961.55 (5) (b) Sell that which is not required to be destroyed by law and which is not harmful to the public. The agency may use 50 percent of the amount received for payment of forfeiture expenses. The remainder shall be deposited shall deposit all amounts received in the school fund as proceeds of the forfeiture. In this paragraph, “forfeiture expenses" include all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred.

SB61,15 Section 15. 961.55 (5) (e) (intro.) of the statutes is renumbered 961.55 (5) (e) and amended to read:

SB61,7,24 961.55 (5) (e) If the property forfeited is money, retain the sum of all of the following for payment of forfeiture expenses, as defined in par. (b), and deposit the remainder money in the school fund:.

SB61,16 Section 16. 961.55 (5) (e) 1. of the statutes is repealed.

SB61,17 Section 17. 961.55 (5) (e) 2. of the statutes is repealed.

SB61,18 Section 18. 961.555 (1) of the statutes is amended to read:

SB61,8,8 961.555 (1) Type of action; where brought. In an action brought to cause the forfeiture of any property seized under s. 961.55, the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any Subject to s. 961.55 (1r), any property seized may be the subject of a federal forfeiture action.

SB61,19 Section 19. 961.555 (2) (a) of the statutes is amended to read:

SB61,8,20 961.555 (2) (a) The district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, except that the defendant may request that and the forfeiture proceedings shall be adjourned until after adjudication the defendant is convicted of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

SB61,20 Section 20. 961.555 (2) (am) of the statutes is created to read:

SB61,8,24 961.555 (2) (am) Upon motion by the prosecuting attorney, the court may waive the conviction requirement under par. (a) if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

SB61,8,25 1. The defendant has died.

SB61,9,1 2. The defendant was deported by the U.S. government.

SB61,9,3 3. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

SB61,9,5 4. The defendant fled the jurisdiction after being arrested, charged with a crime that includes the forfeiture of property, and released on bail.

SB61,21 Section 21. 961.555 (3) of the statutes is amended to read:

SB61,9,9 961.555 (3) Burden of proof. The state shall have the burden of satisfying or proving by clear and convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under s. 961.55.

SB61,22 Section 22. 961.555 (3m) of the statutes is created to read:

SB61,9,14 961.555 (3m) Proportionality. (a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.

SB61,9,19 (b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.

SB61,9,21 (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

SB61,9,23 1. The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the person.

SB61,9,24 2. The extent to which the person participated in the offense.

SB61,9,25 3. The extent to which the property was used in committing the offense.

SB61,10,1 4. The sentence imposed on the person for the offense.

SB61,10,2 5. Whether the person completed or attempted to complete the offense.

SB61,10,3 6. The fair market value of the property.