STAND. COM. REP. NO.982

Honolulu, Hawaii

, 2003

RE: S.B. No. 1514

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred S.B. No. 1514 entitled:

"A BILL FOR AN ACT RELATING TO FORFEITURES,"

begs leave to report as follows:

The purpose of this measure is to incorporate various provisions of the federal Civil Asset Forfeiture Reform Act of 2000 (CAFRA) by:

(1) Providing for the appointment of counsel in civil forfeiture cases where the claimant to property is represented in a related criminal case by appointed counsel;

(2) Setting forth with greater detail than in existing law the burden of proof borne by the respective parties to a forfeiture proceeding and the "innocent owner defense" that may be asserted by claimants to property;

(3) Establishing procedures for the release of property pending the outcome of forfeiture proceedings; and

(4) Providing for the payment to a successful claimant of fees and costs incurred in a forfeiture proceeding, and for payment of a civil fine by a claimant who brings a frivolous claim.

The bill also requires additional means of notification to potential claimants of a pending forfeiture proceeding, exempts medical marijuana from forfeiture, limits the extent to which property seized by state or local law enforcement officials may be transferred to the federal government for forfeiture under federal law, deletes the requirement that a claimant seeking to challenge the administrative forfeiture of property file a cost bond to remove the case to court for further proceedings, permits a claimant to remove a forfeiture case to small claims court provided that the property is valued at $3,500 or less, and dedicates one-half of the proceeds of forfeiture to drug treatment programs, including federal forfeiture proceeds received by state and local law enforcement, to the extent permitted by federal law.

Your Committee received testimony in support of this measure from The Community Alliance on Prisons, the American Civil Liberties Union of Hawai'i, Harm Reduction Hawai'i, and three private citizens. Testimony in opposition to this measure was received from the State Attorney General, the Prosecuting Attorney for the County of Hawaii, Prosecuting Attorney for the City and County of Honolulu, the Prosecuting Attorney of the County of Kauai, the Prosecuting Attorney of Maui County, and the Honolulu Police Department. The State Public Defender offered comments and expressed concerns.

Your Committee finds that Hawaii's forfeiture law will be strengthened by adding a number of provisions from CAFRA. Your Committee does not believe, however, that appointed counsel should be provided to indigent claimants because appointed counsel is not provided in other civil cases. The Public Defender's Office lacks the expertise necessary to zealously represent these cases, and lacks sufficient funds to appoint private counsel to defend these cases.

Your Committee also finds that the current methods of notification of claimants are legally and constitutionally adequate. The court, rather than the seizing agency should determine whether and under what circumstances property should be released to a claimant pending the outcome of a forfeiture proceeding. Claimants who wish to remove an administrative forfeiture to the courts should be required to post a bond to deter frivolous claims. Your Committee believes, however, that 1/4 rather than 1/2 of forfeiture proceeds should be dedicated to drug treatment. This ensures that state and local law enforcement agencies are compensated for their expenses and receive necessary forfeiture funds for training while still providing a significant source of revenue for drug treatment programs.

Your Committee amended the bill by:

(1) Making the findings section more succinct and relevant to the actual amendments proposed by the bill;

(2) Deleting the provision for court-appointed counsel in civil forfeiture cases;

(3) Requiring the court, rather than the seizing agency, to decide on motion made by the claimant whether to return property pending the outcome of forfeiture proceedings and under what conditions;

(4) Clarifying the proposed limitation on federal "adoption" of state forfeitures and adding a "savings" clause should the provision be found in conflict with federal law;

(5) Deleting the additional notice requirements of multiple newspaper publication;

(6) Retaining the cost bond required to judicially challenge an administrative forfeiture;

(7) Deleting language that would reverse a forfeiture judgment if a criminal case is dismissed or results in acquittal;

(8) Dedicating 1/4 of forfeiture proceeds (1/2 of the net funds deposited in the criminal forfeiture fund maintained by the attorney general) for drug treatment programs; and

(9) Deleting language in the purpose section relating to drug use and abuse; and

(10) Making technical, nonsubstantive amendments for clarity and style.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 1514, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 1514, S.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

____________________________

COLLEEN HANABUSA, Chair