WEST virginia Legislature
2019 regular session
Senate Bill 309
By Senators Blair and Takubo
15, 2019; 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 the state prove that owner of seized property has been convicted of a crime and that seized property was substantially related to said crime before the state can perfect title to the seized property; and requiring the state return seized property to its owner if the state cannot meet its evidentiary burden.
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 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.
(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 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 §60A-7-705(b) of this code, 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 the property of their 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 notice shall contain the following information:
(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.
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 and place shall be set for a hearing upon
such claim prayer. 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 10 days
prior to the date set for the hearing.
(e) At the hearing upon the
claim or claims, the state shall have the burden of proving by
preponderance of the evidence that:
(1) The seized property is subject to forfeiture pursuant to the provisions of this chapter;
(2) The owner of the seized property has been convicted of a crime; and
(3) The seized property had a substantial relationship to the crime referred to in 60A-7-705(e)(2) of this code.
(f) If the state cannot meet its evidentiary burden pursuant to 60A-7-705(e) of this code, the court shall order the state to return seized property to its owner within 48 hours 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 right, 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) (j) An appeal of a decision of the circuit
court concerning a forfeiture proceeding brought pursuant to this chapter 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 order.
NOTE: The purpose of this bill is to require the state to prove that the owner of seized property has been convicted of a crime and that the seized property was substantially related to said crime before the state can perfect title to seized property; and require that the state return seized property to its owner if the state cannot meet its evidentiary burden.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.