WEST virginia legislature
2020 regular session
Introduced
Senate Bill 277
By Senators Trump, Clements, and Rucker
[Introduced January 10,
2020; referred
to the Committee on the Judiciary]
A BILL to amend and reenact §60A-7-705 of the Code of West Virginia, 1931, as amended, relating to civil asset forfeiture; requiring that state prove the owner of seized property has been convicted of a felony controlled substance offense and that the seized property was substantially related to the crime before the state can perfect title to the seized property; modifying the standard of proof; and requiring that state return seized property to its owner if its evidentiary burden is not met.
Be it enacted by the Legislature of West Virginia:
ARTICLE 7. WEST VIRGINIA CONTRABAND FORFEITURE ACT.
§60A-7-705. Procedures for forfeiture.
(a) (1) Any proceeding wherein the state seeks forfeiture of property subject to forfeiture under this article is sought shall be a civil proceeding. A petition for forfeiture may be filed on behalf of the state and any law-enforcement agency making a seizure under this article by the prosecuting attorney of a county, or duly appointed special prosecutor subject to the provisions of this article.
(2) A petition for forfeiture may be filed and proceedings held thereon in the circuit court of the county wherein the seizure was made, the real property subject to forfeiture is situate, or the circuit court of the county wherein any owner of the property subject to forfeiture may reside.
(3) Any civil trial stemming from a petition for forfeiture brought under this chapter at the demand of either party shall be by jury.
(4) A petition for forfeiture of the seized property shall be filed within 90 days after the seizure of the property in question. The petition shall be verified by oath or affirmation of a law-enforcement officer representing the law-enforcement agency responsible for the seizure or the prosecuting attorney and shall contain the following:
(i) A description of the property seized;
(ii) A statement as to
who is identifying the law-enforcement agency or agencies responsible
for the seizure;
(iii) A statement of the time and place of seizure;
(iv) The identity of the owner or owners of the property, if known;
(v) The identity of the person or persons in possession of the property at the time seized, if known;
(vi) A statement of facts upon which probable cause for belief that the seized property is subject to forfeiture pursuant to the provisions of this article is based;
(vii) The identity of all persons or corporations having a perfected security interest or lien in the subject property, as well as the identity of all persons or corporations known to the affiant who may be holding a possessory or statutory lien against such property;
(viii) A prayer for an order directing forfeiture of the seized property to the state, and vesting ownership of such property in the state.
(b) At the time of filing or as soon as practicable thereafter, a copy of the petition for forfeiture shall be served upon the owner or owners of the seized property, as well as all holders of a perfected security interest or lien or of a possessory or statutory lien in the same class, if known. Should diligent efforts fail to disclose the lawful owner or owners of the seized property, a copy of the petition for forfeiture shall be served upon any person who was in possession or alleged to be in possession of the property at the time of seizure, where such person’s identity is known. The above service shall be made pursuant to the provisions of the West Virginia Rules of Civil Procedure. Any copy of the petition for forfeiture so served shall include a notice substantially as follows:
“To any claimant to the within described property: You have the right to file an answer to this petition setting forth your title in, and right to possession of, the property within 30 days from the service hereof. If you fail to file an answer, a final order forfeiting the property to the state will be entered, and such order is not subject to appeal.”
If no owner or possessors, lienholders or holders of a security interest be found, then such service may be by Class II legal publication in accordance with the provisions of §59-3-1 et seq. of this code, and the publication area shall be the county wherein such property was located at the time of seizure and the county wherein the petition for forfeiture is filed.
(c) In addition to the
requirements of subsection (a) above of this section the
prosecuting attorney or law-enforcement officer upon whose oath or affirmation
the petition for forfeiture is based, shall be responsible for the publication
of a further notice. Such further notice that a petition for forfeiture has
been filed shall be published by Class II legal advertisement in accordance
with §59-3-1 et seq. of this code. The publication area shall be the
county wherein the property was seized and the county wherein the petition for
forfeiture is filed. The notice shall advise any claimant to owner of
the property of their the right to file a claim on or before the
date set forth in the notice, which date shall not be less than 30 days from
the date of the first publication. The notice shall specify that any claim must
clearly state the identity of the claimant and an address where legal process
can be served upon that person. In addition, such the notice
shall contain the following information set forth in paragraphs (i)
through (vi), subdivision (4), subsection (a) of this section.
(1) A description of the
property seized;
(2) A statement as to
who is responsible for the seizure;
(3) A statement of the
time and place of seizure;
(4) The identity of the
owner or owners of the property, if known;
(5) The identity of the
person or persons in possession of the property at the time of seizure, if
known;
(6) A statement that
prayer for an order directing forfeiture of the seized property to the state,
and vesting ownership of such property in the state shall be requested of the
court.
(d) If no answer or
claim is filed within thirty days of the date of service of the petition
pursuant to subsection (b) of this section, or within thirty days of the first
publication pursuant to subsection (b) of this section, the court shall enter
an order forfeiting the seized property to the state. If any claim to the
seized property is timely filed, a time
(d) A time and place shall be set for a hearing upon such
claim the petition. The claimant or claimants owner or
owners, if known, and the person or persons in possession of the property at
the time seized shall be given notice of such hearing not less than ten
20 days prior to the date set for the hearing.
(e) At the hearing upon the
claim or claims, the state petitioner or petitioners shall have
the burden of proving by a preponderance of the evidence that the seized
property is subject to forfeiture pursuant to the clear and convincing
evidence that:
(1) The seized property
is subject to forfeiture pursuant to the
provisions of this chapter article;
(2) The owner of the seized property has been convicted of a felony violation of this chapter; and
(3) The seized property had a substantial relationship to the crime referred to in subdivision (2) of this subsection.
(f) If the petitioner or petitioners cannot meet the evidentiary burden under subsection (e) of this section, the court shall order the return of the seized property to its owner within 10 days of the entry of the court’s order.
(f) (g) Any order forfeiting property to the state
and entered pursuant to this section perfects the state's petition,
title, and interest in the forfeited property and relates back to the
date of seizure: Provided, That in any proceeding under this article the
circuit court shall in its final order make specific findings with respect to
whether or not probable cause to seize such property existed at the time of
such seizure.
(g) (h) During the pendency of a forfeiture
proceeding, it is unlawful for any property owner or holder of a bona fide
security interest or other valid lienholder to transfer or attempt to transfer
any ownership interest or security interest in seized property with the intent
to defeat the purpose of this article, and the court wherein the petition for
forfeiture is filed may enjoin a property owner or holder of a security
interest or other lienholder from making such a transfer should one come to its
attention. Any such transfer which is made in violation of the provisions of
this subsection shall have no effect upon an order of the court forfeiting
seized property to the state if a notice of lis pendens is filed prior
to the recording of the instrument of transfer.
(h) (i) The court may void any transfer of
property made before or after a forfeiture proceeding has been commenced, which
is subject to forfeiture, if the transfer was not to a bona fide purchaser
without notice for value.
(i) An (j) A petition for appeal of a decision of the
circuit court concerning a forfeiture proceeding brought pursuant to this chapter
article must be filed within 120 days of the date of entry of the final appealable
order. The appellant shall be required to give notice of intent to appeal
within 30 days of the entry of such appealable the final order.
(k) As used in this section, seized property has a substantial relationship to the underlying crime or conviction if it is real, personal, or mixed property used in the commission of a felony controlled substances offense or is purchased with funds obtained by such an offense.
(l) Nothing in this section may be construed to authorize the forfeiture of assets titled to, or owned by, an innocent owner or purchaser.
NOTE: The purpose of this bill is to require that the state prove that the owner of seized property has been convicted of a felony controlled substance offense and that the seized property was substantially related to the crime before the state can perfect title to the seized property. The bill modifies the standard of proof. The bill requires the state to return seized property to its owner if its evidentiary burden is not met.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.