First Regular Session

Sixty-first General Assembly

LLS NO. 97­0252.01 JBB HOUSE BILL 97­1292

STATE OF COLORADO

BY REPRESENTATIVE Tate

JUDICIARY

A BILL FOR AN ACT

CONCERNING PROCEDURES FOR PARTIES CLAIMING AN INTEREST IN PROPERTY SUBJECT TO CRIMINAL FORFEITURE.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Creates a new administrative remedy for innocent parties owning an interest in property seized and forfeited as a public nuisance. Establishes procedures for a party, including a lienholder, to file with the district attorney a petition requesting remission or mitigation. Grants the district attorney the discretion to grant or deny the petition. States that a petition for remission may only be granted if it is found that the petitioner:

• Has a good faith interest in the seized property as owner or otherwise;
• Had no actual or constructive knowledge that the seized property was or would be involved in any violation of law;
• Had no actual or constructive knowledge of the particular violation that subjected the property to seizure;
• Had no actual or constructive knowledge that the user of the property had a record for violating related criminal laws; and
• Had taken all lawful reasonable steps to prevent the illegal use of the property.

Allows the district attorney to grant partial relief if: (1)  A petitioner cannot establish the requirements for remission, but some relief should be granted to prevent extreme hardship; or (2)  The requirements for remission have been met, but overall circumstances indicate that complete relief is not warranted.

In actions to abate public nuisances:

• Requires a plaintiff to serve with the summons a notice of the right to and procedures for filing a petition under the new administrative remedy; and
• Provides that upon the sale of property seized as a public nuisance proceeds may be distributed to a person injured as a result of the nuisance after payment of the seizing agency's costs.

In forfeiture actions, changes the burden of proof regarding the owner's involvement in the public nuisance from being the plaintiff's burden to being the defendant's burden to prove as an affirmative defense of the defendant.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Part 3 of article 13 of title 16, Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW SECTION to read:

16­13­316.5.  Innocent parties ­ administrative remedies. (1)  IN ADDITION TO ANY OTHER REMEDY PERMITTED BY THIS PART 3, ANY PARTY NOT INVOLVED IN THE CRIMINAL ACTIVITY GIVING RISE TO A NUISANCE, INCLUDING A LIENHOLDER, THAT CLAIMS AN INTEREST IN REAL OR PERSONAL PROPERTY THAT HAS BEEN SEIZED UNDER THIS PART 3 MAY FILE A PETITION FOR REMISSION OR MITIGATION WITH THE DISTRICT ATTORNEY. THE PETITION MUST BE FILED WITHIN SIXTY DAYS AFTER SERVICE OF THE COMPLAINT REQUIRED BY SECTION 16­13­307 (5), SHALL BE SWORN TO BY THE PETITIONER, AND SHALL INCLUDE:

(a)  A COMPLETE DESCRIPTION OF THE PROPERTY SEIZED AND THE IDENTITY OF THE PLAINTIFF AND THE COURT IN WHICH THE ACTION TO ABATE THE NUISANCE WAS FILED;

(b)  A DESCRIPTION AND EVIDENCE OF PETITIONER'S INTEREST IN THE SEIZED PROPERTY AND ITS VALUE, INCLUDING BUT NOT LIMITED TO CONTRACTS, BILLS OF SALE, MORTGAGES, LIENS, AND NOTES;

(c)  THE FACTS AND CIRCUMSTANCES RELIED UPON BY THE PETITIONER TO JUSTIFY REMISSION OR MITIGATION, SUPPORTED BY SATISFACTORY PROOF.

(2)  UPON RECEIPT OF THE PETITION, THE DISTRICT ATTORNEY SHALL INVESTIGATE THE ALLEGATIONS OF THE PETITION AND, WITHIN THIRTY DAYS AFTER RECEIPT OF THE PETITION, FORWARD TO THE PETITIONER OR PETITIONER'S ATTORNEY AND ANY DEFENDANT OR DEFENDANT'S ATTORNEY A REPORT ON THE INVESTIGATION. WITHIN THIRTY DAYS AFTER RECEIPT OF THE PETITION, ANY DEFENDANT MAY ALSO FILE A REPORT WITH THE DISTRICT ATTORNEY. WITHIN THIRTY DAYS AFTER FORWARDING THE REPORT, THE DISTRICT ATTORNEY SHALL ISSUE A FINAL ORDER ON THE PETITION. THE DISTRICT ATTORNEY HAS COMPLETE DISCRETION WHETHER TO GRANT OR DENY A PETITION FILED UNDER THIS SECTION.

(3)  THE DISTRICT ATTORNEY SHALL NOT GRANT A PETITION FOR REMISSION UNLESS THE DISTRICT ATTORNEY FINDS THAT THE PETITIONER:

(a)  HAS A GOOD FAITH INTEREST IN THE SEIZED PROPERTY OR IS THE TRUE OWNER OF THE SEIZED PROPERTY AS DEFINED IN SECTION 16­13­303 (5);

(b)  HAD NO ACTUAL OR CONSTRUCTIVE KNOWLEDGE THAT THE SEIZED PROPERTY WAS OR WOULD BE INVOLVED IN ANY VIOLATION OF LAW;

(c)  HAD NO ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE PARTICULAR VIOLATION THAT SUBJECTED THE PROPERTY TO SEIZURE;

(d)  HAD NO ACTUAL OR CONSTRUCTIVE KNOWLEDGE THAT THE USER OF THE PROPERTY HAD ANY RECORD FOR VIOLATING THE LAWS OF THE UNITED STATES OR ANY STATE FOR A RELATED CRIME; AND

(e)  HAD TAKEN ALL LAWFUL REASONABLE STEPS TO PREVENT THE ILLEGAL USE OF THE PROPERTY.

(4)  THE DISTRICT ATTORNEY MAY GRANT A PETITIONER PARTIAL RELIEF BY WAY OF MITIGATION IN CIRCUMSTANCES WHERE:

(a)  THE PETITIONER HAS NOT SATISFIED THE MINIMUM REQUIREMENTS FOR REMISSION ESTABLISHED IN SUBSECTION (3) OF THIS SECTION, BUT THERE ARE PRESENT OTHER EXTENUATING CIRCUMSTANCES INDICATING THAT SOME RELIEF SHOULD BE GRANTED TO AVOID EXTREME HARDSHIP; OR

(b)  THE PETITIONER HAS SATISFIED THE MINIMUM REQUIREMENTS FOR REMISSION ESTABLISHED BY SUBSECTION (3) OF THIS SECTION, BUT OVERALL CIRCUMSTANCES ARE SUCH THAT IN THE OPINION OF THE DISTRICT ATTORNEY COMPLETE RELIEF IS NOT WARRANTED.

SECTION 2.  16­13­303 (5.1) and (5.2), Colorado Revised Statutes, 1986 Repl. Vol., as amended, are amended to read:

16­13­303.  Class 1 public nuisance. (5.1) (a)  In any action to forfeit property pursuant to this part 3, the plaintiff, in addition to any other matter which must be proven in the plaintiff's case in chief, shall prove by a preponderance of evidence that possession of the property is unlawful, or that the owner of the property was a party to the creation of the public nuisance.

(b)  As used in paragraph (a) of this subsection (5.1), an owner was a "party to the creation of the public nuisance" if it is established that:

(I)  The owner was involved in the public nuisance act; or

(II)  The owner knew or reasonably should have known of the public nuisance act.

(5.2) (a)  It shall be an affirmative defense that, and the property of a person who was not involved in the public nuisance act or acts shall not be forfeited if, the person establishes by a preponderance of evidence that:

(I)  THE OWNER OF THE PROPERTY WAS NOT A PARTY TO THE CREATION OF THE PUBLIC NUISANCE; AND

(II)  The person took all reasonable steps to abate the public nuisance and took all reasonable steps to prevent the property from becoming a public nuisance or from becoming involved in the public nuisance act.

(b)  AS USED IN PARAGRAPH (a) OF THIS SUBSECTION (5.2), AN OWNER WAS NOT A "PARTY TO THE CREATION OF THE PUBLIC NUISANCE" IF IT IS ESTABLISHED THAT:

(I)  THE OWNER WAS NOT INVOLVED IN THE PUBLIC NUISANCE ACT; OR

(II)  THE OWNER DID NOT AND COULD NOT REASONABLY HAVE KNOWN OF THE PUBLIC NUISANCE ACT.

SECTION 3.  16­13­307 (5), Colorado Revised Statutes, 1986 Repl. Vol., is amended to read:

16­13­307.  Jurisdiction ­ venue ­ parties ­ process. (5)  An action to abate a public nuisance, other than a class 4 public nuisance, and any action in which a temporary restraining order, temporary writ of injunction, or preliminary injunction is requested, shall be commenced by the filing of a complaint, which shall be verified or supported by affidavit. Summons shall be issued and served as in civil cases; except that a copy of the complaint, and copies of any orders issued by the court at the time of filing, AND NOTICE OF THE RIGHT TO FILE A PETITION FOR REMISSION OR MITIGATION AND PROCEDURES UNDER SECTION 16­13­316.5 shall be served with the summons.

SECTION 4.  16­13­311 (3) (a), Colorado Revised Statutes, 1986 Repl. Vol., is amended BY THE ADDITION OF A NEW SUBPARAGRAPH to read:

16­13­311.  Disposition of seized personal property. (3) (a)  Except as otherwise provided in this section, the court may order any such property sold by the sheriff in the manner provided for sales on execution. The proceeds of the sale shall be applied as follows:

(III.5)  TO THE PAYMENT OF ANY AMOUNT FOUND DUE TO A PARTY OWNING AN INTEREST IN THE PROPERTY UNDER A PETITION FOR REMISSION OR MITIGATION UNDER SECTION 16­13­316.5;

SECTION 5.  16­13­314 (2), Colorado Revised Statutes, 1986 Repl. Vol., is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

16­13­314.  Disposition of forfeited real property.  (2)  The proceeds of such sale shall be applied as follows:

(c.5)  TO THE PAYMENT OF ANY AMOUNT FOUND DUE TO A PARTY OWNING AN INTEREST IN THE PROPERTY UNDER A PETITION FOR REMISSION OR MITIGATION UNDER SECTION 16­13­316.5;

SECTION 6.  Effective date ­ applicability.  This act shall take effect July 1, 1997, and shall apply to any property seized or any action commenced on or after said date.

SECTION 7.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.