60-4114. In personam proceedings.
60-4114
60-4114. In personam proceedings.(a) (1) A judicial in personam forfeiture proceedingbrought bythe plaintiff's attorney pursuant to an in personam civil actionalleging conduct giving rise to forfeiture is also subject to theprovisions of this section. If a forfeiture is authorized by thisact, it shall be ordered by the court in the in personam action.The action shall be in addition to or in lieu of in rem forfeitureprocedures.
(2) In any proceeding pursuant to this section, the court,on application of the plaintiff's attorney, may enter any orderauthorized by K.S.A. 60-4112.
(b) The court may issue a temporary restraining order in anaction under this section on application of the plaintiff'sattorney, without notice or an opportunity for a hearing, if theplaintiff's attorney demonstrates that:
(1) There is probable cause to believe that in the event ofa final judgment, the property involved would be subject toforfeiture under the provisions of this act; and
(2) A provision of notice would jeopardize the availabilityof the property for forfeiture.
(c) Notice of the issuance of a temporary restraining order andan opportunity for a hearing shall be given to persons known tohave an interest in the property. A hearing shall be held at theearliest possible date in accordance with the applicable civil ruleand shall be limited to the issues of whether:
(1) There is a probability that the seizing agency willprevail on the issue of forfeiture and that failure to enter theorder could result in the property being destroyed, conveyed,alienated, encumbered, further encumbered, disposed of, purchased,received, removed from the jurisdiction of the court, concealed, orotherwise made unavailable for forfeiture; and
(2) the need to preserve the availability of propertythrough the entry of the requested order outweighs the hardship onany owner or interest holder against whom the order is to beentered.
(d) On a determination of liability of a person for conductgiving rise to forfeiture under this act, the court shall enter ajudgment of forfeiture of the property found to be subject toforfeiture described in the complaint and shall also authorize theplaintiff's attorney or any law enforcement officer to seize allproperty ordered forfeited which was not previously seized or isnot then under seizure. Following the entry of an order declaringthe property forfeited, the court, on application of theplaintiff's attorney, may enter any appropriate order to protectthe interest of the seizing agency in the property orderedforfeited.
(e) Following the entry of an order of forfeiture undersubsection (d), the plaintiff's attorney may givenotice of pending forfeiture, in the manner provided in K.S.A. 60-4109, to allowners and interest holders who have notpreviously been given notice.
(f) An owner of or interest holder in property that has beenforfeited and whose claim is not precluded may file a claim asdescribed in K.S.A. 60-4111 within 30 days after initialnotice of pending forfeiture or after notice under subsection (e),whichever is earlier. If the seizing agency doesnot recognize the claimed exemption, the plaintiff's attorney shallfile a complaint and the court shall hold the hearing and determinethe claim, without a jury, in the manner provided for in rem judicialforfeiture actions in K.S.A. 60-4113.
(g) In accordance with findings made at the hearing, the courtmay amend the order of forfeiture if the court determines that anyclaimant has established by a preponderance of the evidence thatthe claimant has an interest in the property and that theclaimant's interest is exempt under the provision of K.S.A. 60-4106.
(h) Except as provided in subsection (c) of K.S.A. 60-4112, no personclaimingan interest in property subject toforfeiture under this act may intervene in a trial or appeal of acriminal action or in an in personam civil action involving theforfeiture of the property.
History: L. 1994, ch. 339, § 14; July 1.