1/25/2003 9:05 PM
 Arnold J. Gaunt
 State Auditor Letter Exposes Subversion of Forfeiture Reform

State Auditor Exposes Subversion of Initiative B!
The Forfeiture Lobby's Refusal to Obey Initiative B!
What You Must DO!

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State Auditor Exposes Subversion of Initiative B!

As I indicated in my previous alert, the Utah state auditor, Auston Johnson, released a letter on 1/22/03 regarding the 155 forfeiture cases for which there has been no public accounting as required by Initiative B.  I have summarized this letter in the following.  It is also available for your own review at this link:

*  Based on a court decision, 113 cases are unaffected by Initiative B.
*  Eight cases were dismissed, four had no government involvement, one is pending, and one was transferred to another court.
The remaining 28 cases should have been transferred to the State Treasurer for FY '02 per Initiative B.
*  The forfeiture lobby believes they DO NOT have to obey Initiative B, due to a technicality that will be explained in the next section.
*  Even under the interpretation of the forfeiture lobby (that they don't have to obey Initiative B because of a technicality), there were two cases involving $194,003 that were not processed per the initiative.

Today, both the Standard-Examiner and the Salt Lake Tribune carried stories regarding the Auditor's letter.

Standard-Examiner (for your convenience, the story is duplicated at the end of this alert):
Salt Lake Tribune:

The Forfeiture Lobby's Refusal to Obey Initiative B!

DisclaimerWhat follows is my opinion as a citizen based on what I believe to be a common sense review and analysis of Initiative B, S.B. 168, Utah Code, and the Utah Constitution.  I encourage you to carefully study this information and reach your own determination on the validity of the forfeiture lobby's position.  When I acquire a copy of their letter, I will post it for your review.

Per the State Auditor's letter and news stories, the forfeiture lobby claims that Initiative B was effectively repealed by S.B. 168, which was passed during the year 2000 legislative session.  S.B. 168 enacted major changes to the Uniform Commercial Code, and made three insignificant (to S.B. 168) changes to a section pertaining to forfeiture.  Two of these changes were technical clarifications immaterial to the subject of S.B. 168, while the other change updated a Commercial Code reference.

Initiative B also modified this same forfeiture section.  Because the effective date of S.B. 168 followed Initiative B, the forfeiture lobby claims that the entire code section on controlled substance related forfeiture revised by the initiative was repealed, and thereby the original code section was reenacted!

Specifically here is the basis of the alleged conflict between Initiative B and S.B. 168.  Deleted text is in brackets, while added text is underlined and italicized.  If your message has lost formatting, the referenced sections of code can be viewed at these links.

S.B. 168:
Initiative B:

1.  Revision of Utah Code 58-37-13(1)(d) by S.B. 168.

492        (d) "Interest holder" means a secured party as defined in [Section 70A-9-105 (1)(m)]
493     Section 70A-9a-102 , a mortgagee, lien creditor, or the beneficiary of a security interest or
494     encumbrance pertaining to an interest in property, whose interest would be perfected against a
495     good faith purchaser for value. A person who holds property for the benefit of or as an agent or
496     nominee for another, or who is not in substantial compliance with any statute requiring an interest
497     in property to be recorded or reflected in public records in order to perfect the interest against a
498     good faith purchaser for value, is not an interest holder.

Initiative B did not modify 58-37-13(1)(d).  No conflict exists between Initiative B and S.B. 168.

2.  Revision of Utah Code 58-37-13(3)(b) by S.B. 168.

580         (b) Upon the filing of a complaint, the court shall immediately issue to the seizing agency
581     a warrant for seizure of any property subject to forfeiture which had been seized without a warrant
582     in a manner described in this Subsection (3).

This portion of Utah Code 58-37-13(3)(b) was repealed by Initiative B (less the indicated amendment).  No conflict exists between Initiative B and S.B. 168.  The technical clarification made by inserting (3) is germane to 58-37-13 and its forfeiture procedure, and not to any provision of the Uniform Commercial Code.  The fact that 58-37-13(3)(b) had been repealed by the effective date of S.B. 168 means that the intended amendment is inapplicable and superfluous.  This does not cause any impairment of other provisions in S.B. 168.

3.  Revision of Utah Code 58-37-13(9)(b)(iii) by S.B. 168.

674         (iii) Any other person claiming an interest in property subject to forfeiture under this
675     subsection may not intervene in a trial or appeal of a complaint filed under this subsection.
676     Following the entry of an in personam forfeiture order, or upon the filing of a petition for release
677     under Subsection (9)(e), the county attorney, district attorney, or attorney general may proceed with
678     a separate in rem action to resolve any other claims upon the property subject to forfeiture.

This portion of Utah Code 58-37-13(9)(b)(iii) was repealed by Initiative B (less the indicated amendment).  See the discussion for for 58-37-13(3)(b), above,  for the lack of conflict between the initiative and S.B. 168.

To summarize, there is no technical conflict between S.B. 168 and Initiative B.  If there were a conflict, such that the intent of S.B. 168 was to modify forfeiture procedure as well as the Uniform Commercial Code, S.B. 168 would be illegal.  The Utah Constitution, Article VI, Section 22 (see, states that bills passed shall not contain more than one subject.

The forfeiture lobby cannot have it both ways.  Either S.B. 168 does modify and did intend to modify forfeiture procedure (invalidating it under Utah Constitution Article VI, Section 22), or it does not modify forfeiture procedure (placing the burden of proof on the forfeiture lobby to demonstrate the single subject connection between clarification of forfeiture procedure and the Uniform Commercial Code).

Implicitly the forfeiture lobby recognizes the vulnerability of their position.  If their position was defensible (at least in the court of public scrutiny and opinion), there would be no need to make any significant legislative changes to forfeiture procedures.  But since their position is not, they are actively pushing a comprehensive legislative attack on the innocent owner and anti corruption protections in Initiative B.

What You Must DO!

1.  Contact your state senator and representative.  Tell them you oppose any subversion or elimination of the innocent owner and anti corruption provisions in Initiative B.  Request that they take all appropriate action to bring prosecutors and police into full compliance with Initiative B.

Utah House:
Utah Senate:

2.  Contact Attorney General Mark Shurtleff at 801-538-1191, or fax 801-538-1121.  Request that he cease his support and involvement in undermining the intent of Initiative B to protect innocent property owners.  Ask him to make good on his position against civil asset forfeiture contained in his year 2000 election campaign materials (see

3.  Contact Senator John Valentine, sponsor of legislation to gut Initiative B, and request that he withdraw his bill.  He may be reached at home at (801) 224-1693, or at the Capitol at 801-538-1035.

4.  Contact House Speaker Marty Stephens at home at (801) 731-5346, or at the Capitol at 801-538-1029.  Marty has been passive and disinterested in upholding Initiative B.  Based on his actions, it is not a priority for him.  Let Marty know that you believe property ownership is a fundamental right, and you expect him to do much more than he has to this point to repel the attack on due process protections for innocent owners.
Auditor: Drug seizure law ignored

Audit says Weber-Morgan team kept forfeitures valued at $200,509

Sat, Jan 25, 2003

Standard-Examiner staff

SALT LAKE CITY -- State Auditor Auston G. Johnson says law enforcement agencies have kept nearly $500,000 in drug seizures in defiance of a 2001 voter initiative directing that those funds flow to the state treasury earmarked for education.

"It"s the law, and they are disregarding it," Johnson said, referring to Initiative B which voters overwhelmingly approved in November of 2001 to reform alleged abuses in the seizures of property tied to drug transactions.

The withheld money includes forfeitures valued at $200,509 by the Weber-Morgan Narcotics Strike Force, according to an audit by Johnson"s office released this week.

Police chiefs and prosecutors statewide came out en masse against Initiative B during its emotional public debate, saying it would only help drug criminals and pointed to the initiative"s proponents as funded by out-of-state drug decriminalization efforts.

Proponents argued the seizures were unconstitutional, usually coming before a conviction in a case. They cited horror stories of property taken from innocent third parties and agencies profiting directly from items its officers seized.

Johnson said Salt Lake, Weber and Davis counties account for all of the money cited in his audit, and county attorneys there claim revisions to the state"s Uniform Commercial Code supercede Initiative B and allow agencies to return the money to law enforcement.

"We"re just not buying their argument," Johnson said.

The initiative, formally called the Utah Uniform Forfeiture Procedures Act, took effect on March 29, 2002, he said, while the changes to the commercial code took effect on July 1, 2002, therefore negating the initiative according to the prosecutors" arguments.

Johnson said he had earlier given a draft of his four-page letter detailing the audit -- now circulating the Legislature and Attorney General Mark Shurtleff"s office -- to deputies of Salt Lake County Attorney David Yocom, Weber County Attorney Mark DeCaria and Davis County Attorney Mel Wilson.

Those three offices are writing a joint rebuttal letter, Johnson said, which at one time had been planned to be sent out with his letter.

DeCaria said Friday he signed the so-called rebuttal letter written by Yocom, which he understood was to hit the mail Friday.

"We think the changes to the commercial code leave us able to continue conducting the forfeitures as we have in the past," he said.

The $200,000 seized by the Weber strike force have been purposely kept in limbo, DeCaria said.

"Those forfeiture moneys have not been spent," he said. "Those assets have been preserved pending a resolution of the issues."

Johnson said the response to his letter dated Tuesday has so far been limited to calls from reporters as of Friday.

"It think the Legislature is going to have to decide the best course of action," Johnson said. "The county attorneys think Initiative B is invalid. Since it"s a legal argument, I also sent a copy (of his letter) to Shurtleff."

Only the aforementioned three counties have performed any seizures in the wake of Initiative B, Johnson said, which so far has produced no funds for the state treasury earmarked for education. "Not a dime," he said.

Normally some 200 to 300 seizures and forfeitures are filed a year, he said, but only 155 have been filed since Initiative B passed, and only 28 since it went into effect.

Many agencies have stopped the practice because the law has become so confusing, Johnson said. "So the seizure are way down, which was not the desired effect" as he understood the initiative.

In addition to the money seized by the Weber narcotics unit, Johnson"s audit counts $18,305 seized by Salt Lake City police, $15,796 by West Valley City police, $3,388 by Midvale, and another $250,000 that was not broken down by agency.