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H0054........................................................by MR. SPEAKER
Requested by Idaho Association of Counties
FORFEITURE PROCEEDINGS - Amends existing law to require the Department of
Law Enforcement to notify the county treasurer of forfeiture proceedings in
drug cases; and to provide for a first and prior and perpetual lien on the
property for property taxes owed on the property.
01/11 House intro - 1st rdg - to printing
01/11 Rpt prt - to Rev/Tax
H0054|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature First Regular Session - 1999IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 54 BY MR. SPEAKER Requested by: Idaho Association of Counties 1 AN ACT 2 RELATING TO PROPERTY SEIZED BY THE STATE OF IDAHO IN FORFEITURE ACTIONS; 3 AMENDING SECTION 37-2744A, IDAHO CODE, TO REQUIRE THE DEPARTMENT OF LAW 4 ENFORCEMENT TO NOTIFY THE COUNTY TREASURER OF FORFEITURE PROCEEDINGS AND 5 TO REQUIRE THAT ALL PROPERTY TAXES DUE TO THE COUNTY PRIOR TO THE SEIZURE 6 AND FORFEITURE AND THE AMOUNT OF TAXES THAT WOULD HAVE BEEN DUE BETWEEN 7 THE TIME OF SEIZURE AND FORFEITURE SHALL CONTINUE TO BE A FIRST AND PRIOR 8 AND PERPETUAL LIEN ON THE PROPERTY AND SHALL BE PAID TO THE COUNTY BY THE 9 DEPARTMENT OF LAW ENFORCEMENT UPON THE SALE OF THE PROPERTY. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Section 37-2744A, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 37-2744A. REAL PROPERTY SUBJECT TO FORFEITURE. (a) Any real property, 14 including any interest therein and any appurtenances thereto or improvements 15 thereon, which is used in any manner or part, to commit or to facilitate the 16 commission of a violation of the provisions of this chapter punishable by more 17 than one (1) year of imprisonment, shall be subject to forfeiture under the 18 provisions of this section. 19 (b) Property subject to forfeiture under the provisions of this section 20 may be seized by the director upon determining that a parcel of property is 21 subject to forfeiture, by filing a notice of forfeiture with the recorder 22 and treasurer of the county in which the property or any part 23 thereof is situated. The notice must contain a legal description of the prop- 24 erty sought to be forfeited; provided, however, that in the event the property 25 sought to be forfeited is part of a greater parcel, the director may, for the 26 purposes of this notice, use the legal description of the greater parcel. The 27 director shall also send by certified mail a copy of the notice of forfeiture 28 to any persons holding a recorded interest or of whose interest the director 29 has actual knowledge. The director shall post a similar copy of the notice 30 conspicuously upon the property and publish a copy thereof once a week for 31 three (3) consecutive weeks immediately following the seizure in a newspaper 32 published in the county. The owner or party in lawful possession of the prop- 33 erty sought to be forfeited may retain possession and use thereof and may col- 34 lect and keep income from the property while the forfeiture proceedings are 35 pending. 36 (c) In the event of a seizure pursuant to subsection (a) of this section, 37 a complaint instituting forfeiture proceedings under subsection (d) of this 38 section shall be filed in the district court in the county in which the real 39 property is situated within ninety (90) days of the date of seizure. The com- 40 plaint shall be served in the same manner as other complaints subject to the 41 Idaho rules of civil procedure on all persons having an interest in the real 42 property sought to be forfeited. 43 (d) Real property sought to be forfeited under the provisions of this 2 1 section shall not be subject to an action for detainer or any other collateral 2 action, but is deemed to be in the custody of the director subject only to the 3 orders and decrees of the district court having jurisdiction over the forfei- 4 ture proceedings. Forfeiture proceedings shall be civil proceedings in which 5 the burden of proof shall be on the director to prove by a preponderance of 6 the evidence that the property sought to be forfeited is subject to forfei- 7 ture. Upon being satisfied that an owner or claimant as defined in paragraph 8 (4) of this subsection should not be subjected to forfeiture because that per- 9 son had no knowledge or reason to believe that the real property was being 10 used or had been used for the purposes alleged by the department, the director 11 shall release the property to the owner or other claimant. The procedure 12 applicable to such cases shall be the same as that prescribed by the Idaho 13 rules of civil procedure. Following service the director may, where appropri- 14 ate, seek default judgment pursuant to the Idaho rules of civil procedure. If 15 an answer is filed the court shall proceed to set the case for hearing before 16 the court without a jury. 17 (1) Following the hearing, if the court finds that the property is sub- 18 ject to forfeiture pursuant to subsection (a) of this section the court 19 shall order the property forfeited to the director and title shall vest as 20 of the date of the original seizure. 21 (2) Following the hearing, if the court finds that the property is not 22 subject to forfeiture pursuant to subsection (a) of this section, the 23 court shall order the property released to the owner or owners thereof. 24 (3) Any owner who has an answer on file may show by competent evidence 25 that his interest in the property sought to be forfeited is not subject to 26 forfeiture because he could not have known in the exercise of reasonable 27 diligence that the real property was being used, or had been used in any 28 manner in violation of the provisions of this section. If the court finds 29 that the property was not used in violation of the provisions of this sec- 30 tion or is not subject to forfeiture under the provisions of this section, 31 the court shall order the property released to the owner. 32 (4) An owner, co-owner or claimant of any right, title or interest in the 33 real property sought to be forfeited may prove that his right, title or 34 interest, whether under a lien, mortgage, or otherwise, was created with- 35 out any knowledge or reason to believe that the real property was being 36 used or had been used for the purposes alleged by the department; 37 (A) In the event of such proof, the court shall order the real prop- 38 erty released to the innocent owner, purchaser, lienholder or mort- 39 gagee. 40 (B) If the amount due to such person is less than the value of the 41 real property, the real property may be sold in a commercially rea- 42 sonable manner by the director. The proceeds from such sale shall be 43 distributed as follows in the order indicated: 44 (i) To the innocent owner, purchaser or mortgagee of the real 45 property, if any, up to the value of his interest in the real 46 property. 47 (ii) The balance, if any, in the following order: 48 1. To the director for all expenditures made or incurred 49 by the department in connection with the sale, including 50 expenditure for any necessary repairs or maintenance of the 51 real property, and for all expenditures made or incurred by 52 the department in connection with the forfeiture proceed- 53 ings including, but not limited to, expenditures for wit- 54 nesses' fees, reporters' fees, transcripts, printing, 55 travel, investigation, title company fees and insurance 3 1 premiums. 2 2. The remainder, if any, to the director for credit to 3 the drug enforcement donation account. 4 (C) In any case, the director may, within thirty (30) days after 5 judgment, pay the balance due to the innocent owner, purchaser, lien- 6 holder or mortgagee and thereby purchase the real property for use in 7 the enforcement of this act. 8 (e) In issuing any order under the provisions of this section, the court 9 shall make a determination that the property, or a portion thereof, was actu- 10 ally used in violation of the provisions of this act. The size of the property 11 forfeited shall not be unfairly disproportionate to the size of the property 12 actually used in violation of the provisions of this section. 13 (f) When property is forfeited under the provisions of this section the 14 director may: 15 (1) Retain it for official use; or 16 (2) Sell the property in a commercially reasonable manner. The proceeds 17 shall be distributed by the director as follows: 18 (A) All property taxes due to the county prior to the time of 19 seizure and forfeiture and the amount of taxes that would have been 20 due between the time of seizure and forfeiture shall continue to be a 21 first and prior and perpetual lien on the property and shall be paid 22 to the county by the director upon the sale of the property. 23 (B) To reimburse for all expenditures made or incurred in 24 connection with the sale, including expenditures for any necessary 25 repairs or maintenance, and for all expenditures made or incurred in 26 connection with the forfeiture proceedings including, but not limited 27 to, expenditures for attorneys' fees, title company fees, insurance 28 premiums, recording costs, witnesses' fees, reporters' fees, tran- 29 scripts, printing, travel and investigation. 30 (BC ) The remainder, if any, shall be cred- 31 ited to the drug enforcement donation account. 32 (3) Recommend to the court that the property, or proceeds thereof, be 33 forfeited in whole or in part to a city or county, the law enforcement 34 agency of which participated in the events leading to the seizure of the 35 property or proceeds. Property distributed pursuant to this recommendation 36 shall be used by the city or county for purposes consistent with the pro- 37 visions of this chapter.
STATEMENT OF PURPOSE
RS 08435
The purpose of this legislation is to require the director of the Department of Law Enforcement notify the
county treasurer when property in a county has been seized and is undergoing forfeiture action. The legislation
further makes it clear that the taxes due at the time of seizure and that would have been due up to the time of
forfeiture are a first and prior and perpetual lien on the property to be paid to the county by the Department upon the
sale of the property.
FISCAL IMPACT
Upon forfeiture, taxing districts will receive the amount levied against the seized and forfeited property and
the State will receive the value of the forfeited property less the assessed property tax owed.
CONTACT: Idaho Association of Counties Phone: 345-9126
Dan Chadwick, Tony Poinelli, Paul Beddoe
STATEMENT OF PURPOSE/FISCAL NOTE Bill No. H 5