AB537: Bill Text

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2015 - 2016 LEGISLATURE

2015 Assembly BILL 537

November 24, 2015 - Introduced by Representatives Tauchen, Jarchow, Craig, Knudson, Kessler, Murtha, Goyke, Allen, Tittl, Gannon, Knodl and Hutton, cosponsored by Senators Nass, Lasee and Wirch. Referred to Committee on Criminal Justice and Public Safety.

AB537,1,11 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 and amend 961.55 (5) (e) (intro.) and 973.075 (1) (b) 1m. (intro.); to amend 29.934 (1) (d), 961.55 (title), 961.55 (1) (intro.), 961.55 (1) (d) (intro.), 961.55 (3) (intro.), 961.55 (5) (b), 961.555 (1), 961.555 (2) (a), 973.075 (title), 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) and 973.076 (1) (b) 1.; and to create 961.55 (1g), 961.55 (1k), 961.55 (1m), 961.55 (1r), 961.555 (3m), 961.555 (5), 973.075 (1g), 973.075 (1k), 973.075 (1m), 973.075 (1r), 973.075 (5r), 973.076 (3m) and 973.076 (5) of the statutes; relating 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:

AB537,1 Section 1. 29.934 (1) (d) of the statutes is amended to read:

AB537,2,3 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.

AB537,2 Section 2. 961.55 (title) of the statutes is amended to read:

AB537,2,5 961.55 (title) Forfeitures; transfers to federal government.

AB537,3 Section 3. 961.55 (1) (intro.) of the statutes is amended to read:

AB537,3,2 961.55 (1) (intro.) The Subject to subs. (1g), (1m), and (1r), the following are subject to forfeiture:

AB537,4 Section 4. 961.55 (1) (d) (intro.) of the statutes is amended to read:

AB537,3,9 961.55 (1) (d) (intro.) 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).

AB537,5 Section 5. 961.55 (1) (d) 1. of the statutes is repealed.

AB537,6 Section 6. 961.55 (1) (d) 2. of the statutes is repealed.

AB537,7 Section 7. 961.55 (1) (d) 3. of the statutes is repealed.

AB537,8 Section 8. 961.55 (1) (d) 4. of the statutes is repealed.

AB537,9 Section 9. 961.55 (1g) of the statutes is created to read:

AB537,3,17 961.55 (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.

AB537,10 Section 10. 961.55 (1k) of the statutes is created to read:

AB537,3,22 961.55 (1k) (a) A person who is charged with a crime or subject to a forfeiture proceeding that gave rise to the seizure of property and who claims an ownership interest in the seized property may, at any time before the property is subject to forfeiture, petition the court to return the property to him or her.

AB537,3,24 (b) In determining whether to return seized property to a person under this subsection, the court shall consider all of the following:

AB537,4,2 1. The seriousness of the alleged offense and its impact on the community, including the duration of the activity and the harm allegedly caused by the person.

AB537,4,3 2. The extent to which the person is alleged to have participated in the offense.

AB537,4,5 3. The extent to which the property was allegedly used in committing the offense.

AB537,4,6 4. The sentence or amount of forfeiture for the offense.

AB537,4,8 5. Whether the person is alleged to have completed or attempted to complete the offense.

AB537,4,9 6. The fair market value of the property.

AB537,4,11 7. The value of the property to the person, including the hardship to the person if the property is not returned.

AB537,4,12 8. The hardship to the person's family members if the property is not returned.

AB537,4,16 (c) 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 either orders the property returned under sub. (3) or forfeited under s. 961.555.

AB537,4,19 (d) If the person is subsequently convicted of or found to have committed the offense, the court shall order the person to surrender the property for proceedings under s. 961.555.

AB537,11 Section 11. 961.55 (1m) of the statutes is created to read:

AB537,4,25 961.55 (1m) (a) A person who is not the person charged with or convicted of a crime that gave rise to the seizure of the property or the forfeiture proceeding and who claims an ownership interest in seized property has the burden of production to show that he or she has a legal right, title, or interest in the property and that one of the following is true:

AB537,5,2 1. He or she had the ownership interest at the time of the conduct that gave rise to the seizure of the property or the forfeiture proceeding.

AB537,5,4 2. He or she acquired the ownership interest after the time of the conduct that gave rise to the seizure of the property or the forfeiture proceeding.

AB537,5,7 (b) 1. If a person meets the burden under par. (a) 1., the state shall prove by a preponderance of the evidence that the person had actual or constructive knowledge of the conduct that gave rise to the forfeiture.

AB537,5,9 2. If a person meets the burden under par. (a) 2., the state shall prove by a preponderance of the evidence that one of the following is true:

AB537,5,11 a. The person had actual or constructive knowledge that the property was subject to forfeiture when he or she acquired an ownership interest in the property.

AB537,5,12 b. The person was not a bona fide purchaser of the property.

AB537,5,15 (c) If the state does not meet the burden under par. (b) 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.

AB537,12 Section 12. 961.55 (1r) of the statutes is created to read:

AB537,5,20 961.55 (1r) No law enforcement officer or agency or state or local employee or agency may transfer property that may otherwise be seized and forfeited under this chapter to a federal law enforcement authority or other federal agency unless one of the following applies:

AB537,5,22 (a) The value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.

AB537,5,23 (b) The seized property may only be forfeited under federal law.

AB537,13 Section 13. 961.55 (3) (intro.) of the statutes is amended to read:

AB537,6,11 961.55 (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:

AB537,14 Section 14. 961.55 (5) (a) of the statutes is repealed.

AB537,15 Section 15. 961.55 (5) (b) of the statutes is amended to read:

AB537,6,21 961.55 (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.

AB537,16 Section 16. 961.55 (5) (e) (intro.) of the statutes is renumbered 961.55 (5) (e) and amended to read:

AB537,7,3 961.55 (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 :.

AB537,17 Section 17. 961.55 (5) (e) 1. of the statutes is repealed.

AB537,18 Section 18. 961.55 (5) (e) 2. of the statutes is repealed.

AB537,19 Section 19. 961.555 (1) of the statutes is amended to read:

AB537,7,12 961.555 (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.

AB537,20 Section 20. 961.555 (2) (a) of the statutes is amended to read:

AB537,7,24 961.555 (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 the forfeiture proceedings be adjourned until after adjudication the defendant was 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.

AB537,21 Section 21. 961.555 (3m) of the statutes is created to read:

AB537,8,4 961.555 (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.

AB537,8,9 (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.

AB537,8,11 (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

AB537,8,13 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.

AB537,8,14 2. The extent to which the person participated in the offense.

AB537,8,15 3. The extend to which the property was used in committing the offense.

AB537,8,16 4. The sentence imposed on the person for the offense.

AB537,8,17 5. Whether the person completed or attempted to complete the offense.

AB537,8,18 6. The fair market value of the property.

AB537,8,20 7. The value of the property to the person, including the hardship to the person if the property is forfeited.

AB537,8,21 8. The hardship to the person's family members if the property is forfeited.