Who Has Civil Forfeiture Authority in Wyoming?

On May 13, I gave short testimony about the problems with civil forfeiture in Wyoming at the Joint Judiciary Committee meeting in Rawlins. The Legislative Service Office is preparing two potential committee bills for the committee to consider at its next meeting in July in Newcastle. The first bill, if it is adopted by the committee and passes the Legislature, will end civil forfeiture in Wyoming and replace it with a criminal forfeiture system; the other will provide comprehensive reporting requirements for forfeiture practice. The first bill is exactly how the justice system should work, ensuring that proceeds of crimes are taken from criminals without significantly endangering the property rights of law-abiding citizens. The second bill, which could serve as an alternative or supplement to the first, will at least provide the public with a full accounting of forfeiture in Wyoming. This is very important, because the current law requires very little reporting, and those reports have not been filed by the Attorney General since 1998.

But the discussion around the reporting bill revealed a glaring problem in the current law: who, exactly, is allowed to pursue forfeiture actions in Wyoming? In other words, are some county attorneys breaking the law by pursuing forfeiture actions?

In a civil action, property at issue may be contested, seized and forfeited. Government can be a party in such actions. For example, if the state takes a person's property in a civil proceeding after they have been convicted of failing to pay taxes, it is a civil forfeiture. But in Wyoming, the Controlled Substances Act (CSA, Wyo. Stat. § 35-7-1049) is the only law that allows the preemptive seizure and easy forfeiture of property. That is, police may seize cash, cars, firearms and other property merely on suspicion of violating the CSA and then keep it without convicting the property owner of a crime. Every other kind of government forfeiture action in Wyoming follows a criminal conviction.

The CSA allows fairly broad authority for initial seizure of property by "any law enforcement officer of the state." However, the Act reads that forfeiture proceedings must go through the Attorney General:

(d) Seized property not repleviable; sealing or removal of seized property.–Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the commissioner subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this act, the commissioner may:

(i) Place the property under seal;

(ii) Remove the property to a place designated by him; or

(iii) Require the board to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

(Emphasis added.)

Leaving aside a discussion of replevin, which is not particularly exciting for lawyers, much less laypersons, the "commissioner" is the Attorney General (according to Wyo. Stat. § 35-7-1003). Rep. Keith Gingery, co-Chairman of the Judiciary Committee, is also Chief Deputy of the Civil Division of the Teton County Attorney's Office. When David Delicath, attorney with the Wyoming Attorney General's Office, testified to the committee that he believes it is solely the authority of the office to pursue forfeitures under the CSA, Rep. Gingery was adamant that this reservation only applies to forfeiture of actual drugs, not alleged drug proceeds and instruments (cash, cars, etc.). Rep. Gingery is not alone – when forfeiture reform bills were discussed in the House Judiciary Committee in the 2014 Legislative Session, several other attorneys from different county attorney's offices testified against the bill, providing testimony with anecdotes that make me believe forfeitures are pursued at the county level. The opinions of other county attorney employees at last week's hearings also support this. This conflicting interpretation has deeper roots. In a 2005 letter to the Wyoming Association of Sheriffs and Chiefs discussing forfeiture proceeds under the CSA, then-Attorney General Patrick Crank stated: "I continue to be concerned about the rumors I occasionally hear that some departments or offices are not pursuing forfeitures or relinquishments through the Attorney General's Office as required by statute."

I agree with the interpretation of the Attorney General's office. Forfeiture authority under the CSA rests with the AG, for all "property taken or detained under this section." There is no distinction between drug and supposedly drug-related property when it comes to forfeiture authority. At the very least, this conflict needs to be cleared up in the law, hopefully by the Judiciary Committee. This is important, especially as the committee considers the detailed reporting bill, because while there is limited reporting required of the AG's office under the current law (reporting that, again, the AG hasn't actually filed in 16 years), there is no reporting required at all by the county attorney's offices. I have received detailed seizure and forfeiture information from the AG's office, but it will take a lot longer (and possibly prove quite expensive) to receive open records data from all 23 Wyoming county attorney's offices.

As more information about civil forfeiture in Wyoming becomes available, it's evident that the practice has had no public or legislative oversight. I am glad there is no evidence that the process has been abused like it has in other states, but even one year after I began to research the subject we do not have the whole story. Despite insistence by some members of the law enforcement community that there's no abuse or reason to be concerned about potential abuse, they have been less than forthcoming with information to back up this claim.

Civil forfeiture under the Controlled Substances Act is dangerous and should be repealed; at the very least we are entitled to have a full accounting of how it actually works. But if we're not even sure who is allowed to pursue forfeitures in the first place, that accounting is impossible.