Appellate decision leaves Wisconsin's seizure practices in question.

• Author: Ziemer, David

Byline: David Ziemer

Wisconsin's procedures for seizure of personal property as drug assets are constitutionally suspect.

A May 2 decision from the Seventh Circuit held that Illinois' procedures fail to provide the property owner a hearing within a reasonable time. Wisconsin's procedures arguably have the same defect

Assistant District Attorney Barbara A. Michaels, who handles forfeitures in Waukesha County, acknowledged that the federal case could be applied to Wisconsin's procedures for forfeitures as well.

The Illinois Drug Asset Forfeiture Procedure Act (DAFPA), 725 ILCS 150/1 et seq., permits the seizure of vehicles, aircraft, and vessels along with money involved in certain drug crimes.

When property is seized, forfeiture proceedings must be instituted. Within 52 days, the law enforcement agency must notify the state's attorney of the seizure.

If the property is worth more than $20,000, forfeiture proceedings must be filed within 45 days.

If less than $20,000, the owner must be notified within 45 days. The owner then has 45 days to file a claim. If he does so, the state has 45 days to commence forfeiture proceedings.

Thus, 97 days can elapse before the filing of forfeiture proceedings, if the value exceeds $20,000, and 142 to 187 days, if it is less.

Six plaintiffs who had property seized under the law filed an action against the Chicago Police Department, contending that the law failed to provide a post-deprivation hearing within a reasonable time.

The district court dismissed the action, relying on Jones v. Takaki, 38 F.3d 321 (7th Cir. 1994).

The plaintiffs appealed, and the Seventh Circuit reversed, in a decision by Judge Terence T. Evans, overruling Jones.

The length of time between the seizure, and the ultimate hearing was not a problem for the court, but the absence of a preliminary hearing was.

The court cited with approval a Second Circuit case, Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002).

In Krimstock, the court held that, with respect to seizures of automobiles, a prompt hearing is required, to determine whether the vehicle can be held, pending the actual forfeiture hearing.

Judge Evans agreed, writing, Our society is, for good or not, highly dependent on the automobile. The hardship posed by the loss of one's means of transportation ... can result

in missed doctor's appointments, missed school, and perhaps most significant of all, loss of employment.

In Krimstock, the court had cited with approval a Florida statute...