Appellate decision leaves state’s seizure practices in question

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Wisconsin’s procedures for seizure of personal property as drug assets are constitutionally suspect.

A May 2 decision from the Seventh Circuit held that Illinois’ procedures fail to provide the property owner a hearing within a reasonable time. Wisconsin’s procedures arguably have the same defect

Assistant District Attorney Barbara A. Michaels, who handles forfeitures in Waukesha County, acknowledged that the federal case could be applied to Wisconsin’s procedures for forfeitures as well.

The Illinois Drug Asset Forfeiture Procedure Act (DAFPA), 725 ILCS 150/1 et seq., permits the seizure of vehicles, aircraft, and vessels along with money involved in certain drug crimes.

When property is seized, forfeiture proceedings must be instituted. Within 52 days, the law en-forcement agency must notify the state’s attorney of the seizure.

If the property is worth more than $20,000, forfeiture proceedings must be filed within 45 days.

If less than $20,000, the owner must be notified within 45 days. The owner then has 45 days to file a claim. If he does so, the state has 45 days to commence forfeiture proceedings.

Thus, 97 days can elapse before the filing of forfeiture proceedings, if the value exceeds $20,000, and 142 to 187 days, if it is less.

Six plaintiffs who had property seized under the law filed an action against the Chicago Police Department, contending that the law failed to provide a post-deprivation hearing within a reasonable time.

The district court dismissed the action, relying on Jones v. Takaki, 38 F.3d 321 (7th Cir. 1994).

The plaintiffs appealed, and the Seventh Circuit reversed, in a decision by Judge Terence T. Evans, overruling Jones.

The length of time between the seizure, and the ultimate hearing was not a problem for the court, but the absence of a preliminary hearing was.

The court cited with approval a Second Circuit case, Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002).

In Krimstock, the court held that, with respect to seizures of automobiles, a prompt hearing is required, to determine whether the vehicle can be held, pending the actual forfeiture hearing.

Judge Evans agreed, writing, “Our society is, for good or not, highly dependent on the automobile. The hardship posed by the loss of one’s means of transportation … can result

in missed doctor’s appointments, missed school, and perhaps most significant of all, loss of employment.”

In Krimstock, the court had cited with approval a Florida statute, providing the following procedures: notice within five working days, stating that the owner may request a preliminary hearing within 15 days; and a hearing within 10 days of such a request.

The Seventh Circuit did not require that Illinois afford these exact procedures. Instead, the court left it to the district court to fashion appropriate relief on remand: “The hearing should be prompt but need not be formal. We leave it to the district court to determine the notice requirement and what a claimant must do to activate the process.”

In light of the decision, Wisconsin’s procedures for forfeitures of drug assets will likely have to change, at least when an automobile is the asset seized.

Under sec. 961.555, the district attorney must commence a forfeiture action within 30 days of the seizure. Service must then be made within 90 days of filing. After the property owner files an answer, the action must be set for hearing within 60 days.

Thus, 180 days could pass before a property owner would have any type of hearing; Wisconsin’s procedures suffer from the same defect as do Illinois’.

Michaels said that given the various timelines, “it could be very lengthy be-fore a hearing is held in some circumstances.

However, she said the issue could be avoided, if the defendant were to file a motion requesting a probable cause hearing.

Michaels also noted that, in 90 percent of cases, defendants want to delay forfeiture hearings, because they have criminal cases pending against them, and don’t want the civil discovery that a forfeiture hearing would entail.

In addition, although the statute allows 90 days for service, Michaels stated that defendants are usually served very quickly, within a week, generally.

Michaels also said that her office generally doesn’t seek forfeiture from innocent owners, but only when the de facto owner of the car is also the guilty party.

Despite defending Wisconsin’s statutes from numerous constitutional challenges, Michaels stated that she has never had a defendant raise a due process argument based on the length of time before a hearing is held.