Pubdate: Sun, 24 Jul 2005
Source: Muskogee Daily Phoenix (OK)
Copyright: 2005 Muskogee Daily Phoenix
Contact: http://www.muskogeephoenix.com/customerservice/contactus.html
Website: http://www.muskogeephoenix.com/
Details: http://www.mapinc.org/media/3319
Author: Donna Hales
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

STATE FORFEITURE FEE LAW MUDDLED

Some DAs Pay Court Costs, While Others - Including Muskogee - Don't

Some district attorneys in the state pay court costs on forfeitures 
and some don't, costing county court clerks thousands of dollars 
annually, the Phoenix has learned. Apparently the law governing the 
issue is unclear or goes unheeded, leaving the decision to pay or not 
pay up to district attorneys. The Muskogee County Court Clerk's 
Office has billed District Attorney John David Luton $20,871 since 
2004 for court costs on civil forfeiture cases. Luton said his office 
does not owe the unpaid court fees. Several state judges and district 
court clerks in counties where the court fees are being paid on 
forfeitures disagree.

They pay the fees, which help court clerks with the expense of 
operating their offices.

Officials with the Oklahoma District Attorney Council and the general 
council for the state's Administrative Office of the Court say they 
don't know who pays and who doesn't, that there is no uniformity. And 
area judges disagree on the issue, too. Court fees go toward the 
operation of district court clerk's offices and at the end of the 
year, all but 20 percent of what is left over goes to the Office of 
the Administrative Courts to help finance judicial salaries, etc., 
said Muskogee County District Court Clerk Paula Sexton. Having 
$20,871 more dollars would mean some of the district judges would not 
have to wait for new copy machines that are needed or that her office 
wouldn't have to wait on needed shelving, all of which is in her 
approved budget. But the items can't be bought until the office takes 
in enough money to pay for those things, so the unpaid money would 
help. In Muskogee County, the court fees are for forfeitures seized 
by Luton's drug task force and include money, vehicles, tools and 
equipment, guns and personal property.

After a judge signs a forfeiture order he sends to the district court 
clerk, the clerk's office bills Luton's office for the court costs. 
The fees are built into the computer system used by all but 26 
district court clerks in Oklahoma, according to Sexton. 228 cases 
billed in Muskogee County County records reflect Luton's office 
received billings on 228 forfeiture cases during 2004 and through 
June 13 of this year. Records show that in each case, court fees 
ranged from $91 to $136. When the Phoenix asked to see the unpaid 
billings, Sexton notified Luton. She said he told her he had not been 
made aware of the billings.

Sexton made him copies. Luton told the Phoenix that the statute cited 
on those bills refers to funds collected in satisfaction of a 
"judgment" and that in his opinion a forfeiture order is not a money 
judgment - that funds derived from property obtained by forfeiture 
are not funds collected in satisfaction of a judgment. "A forfeiture 
is a change of title to property, and therefore, that change does not 
control forfeiture cases.

That is my opinion and the opinion of (Chief District) Judge (Tom) 
Alford," Luton said. Area judges disagree on law District Judge Mike 
Norman, who signed most of the forfeiture orders Sexton relies on to 
bill the court costs, said such an order is a final determination or 
judgment in forfeiture cases. "It is a final judgment, but not a 
money judgment -no money changes hands," Alford told the Phoenix. "It 
would be like you selling your old bicycle - not something you 
collected from somebody else," Alford said, explaining that when 
something is forfeited it becomes the property of the DA's office. 
"There is a very fine distinction," Alford said. But some forfeitures 
include cash. For example, Maynard Andrew Backofen, 24, of Michigan 
was stopped while traveling through Muskogee County on Dec. 30, 2003, 
and charged with possession of marijuana with intent to distribute, 
according to filings in Muskogee County District Court. Backofen left 
the state via a bus at 11 a.m. the next day, after making a deal with 
Luton's office to plead guilty and receive a five-year, unsupervised 
sentence in exchange for agreeing to forfeit his $32,730 in cash and 
the Jeep Cherokee he was driving.

Backofen's court-appointed attorney, Roger Hilfiger, said the deal 
was made before he ever saw his client. Still due in the forfeiture 
case are $91 in court costs - $72 for notice of seizure and 
forfeiture being filed and certified copies, $6 to the law library 
maintained in the courthouse, $2 in dispute mediation assessment, $10 
to the child abuse multidisciplinary account and $1 to another fund. 
Part of the problem is the computer system having court fees built 
in, Alford said. Luton said another law allows for payment of costs 
to his office such as for the towing, storage and preserving of the 
forfeited property but he doesn't believe court costs are included in 
the legitimate costs related to the civil forfeiture proceedings. 
Alford also cited a 1939 Oklahoma Supreme Court ruling (State ex rel. 
Bank Commissioners v. Crum) that Alford interprets to mean the state 
does not have to pay court costs. "You can't take the (court) cost 
money out of the state's pocket," he said. David Swank, an endowed 
law professor at the University of Oklahoma who once served as the 
university's legal council and later served in a variety of 
positions, including associate dean, dean of the College of Law, 
director of the Law Center, and interim president of the University 
of Oklahoma, agreed you cannot collect court costs from the state 
under the Supreme Court case. But the property seized is the 
defendant in a forfeiture case, not the state, Swank said. 
"Basically, you're not collecting the cost from the state, but from 
the (forfeited) property," Swank said. In taking into consideration 
the law Sexton used to bill Luton, some version of which he said 
dates back to 1923, and the Supreme Court case cited by Alford, he 
said he believes the court costs are to be paid. "It's not absolutely 
clear, but it basically says you can," Swank said. District Judge 
Bruce Sewell, who has offices in Cherokee and Wagoner counties and 
also presides over some cases in Muskogee County, said the law 
requiring state offices to pay court fees on everything but child 
support "sounds pretty good to me." AG's office refers issue to DA 
Council A spokesman for the Attorney General's Office, which is 
defending Luton's office in three federal civil racketeering cases 
involving his forfeiture practices, said they were too busy to speak 
to the matter of court costs on forfeitures. Spokesman Charlie Price 
referred the Phoenix to the state District Attorney Council, whose 
general council, Lee Cohlmia, said she was not aware of the subject 
being discussed in any of the district attorney discussions at the 
council's office. "We don't tell them how to run their offices - 
they're elected officials," Cohlmia said. "We dictate how money given 
by the Legislature is given to the DAs." Cohlmia and District 
Attorney Council attorney Trent Baggett said there are no statistics 
as to which prosecutors pay or do not pay court costs on forfeitures. 
Sexton said some do and some don't. Julie Rorie, general council for 
the state's Administrative Office of the Court, said the office keeps 
no such records and that there is a lack of conformity. "In some 
cases, you'll end up getting court costs and in some cases you 
won't," Rorie said. One DA says he wants to help the court clerks 
Mike Boring, district attorney for Beaver, Harper, Cimarron and Texas 
counties, pays the court fees on forfeitures, saying he wants to help 
the district court clerks in his counties. "It's not that big a deal, 
but it does mean something to my court clerks," Boring told the 
Phoenix. Records show district attorneys for Beaver County have paid 
court costs on civil forfeiture cases since at least 1997. Court 
records show the Custer County district court clerk in Ardmore 
receives court costs in forfeiture cases. District Judge Thomas S. 
Walker, whose jurisdiction includes Murray, Johnston, Marshal, Carter 
and Love counties, like Swank, said the defendant in civil 
forfeitures is not a person but a thing - money, a car, a house, but 
not a person. "I treat it like all civil cases and tax the cost to the thing.

If it's money, (court) costs are deducted from the money," Walker 
told the Phoenix. If the item forfeited is to be sold, a cost lien is 
put on the item. When it is sold, court costs are deducted from the 
sale proceeds, Walker said. If the item is contraband that is going 
to be destroyed instead of being sold, there are no court costs paid, 
Walker said. Cherokee County clerk's bills go unpaid Cherokee County 
Court Clerk Shirley Glory, who has been in office since August 2003, 
said she has billed District Attorney Richard Gray's Office for court 
costs on forfeitures but that he hasn't paid them. Gray is chief 
prosecutor in Adair, Cherokee, Sequoyah and Wagoner counties. Glory 
said she believes that may be getting ready to change. "I don't know 
that we think that we should (pay court costs on forfeitures)," Gray 
said Tuesday. "I'm still looking at it, but we'll probably start 
paying." Judge Sewell said it's not been a pressing issue that anyone 
has really pushed until Glory started billing for the costs in 
Cherokee County. "Forfeitures fall into a gray area," Sewell said. "I 
think if push came to shove, we (courts) would be entitled to recover 
those costs.

It's just never hit the radar." Gray said he explained to Sewell that 
if you forfeited two guns in a case, court costs could be more than 
you got for the guns. Gray said he might try to work something out 
with the district court clerks in his four counties to pay court fees 
when money is seized or when selling forfeited items would bring in 
more than the court costs. Issue unclear in Tulsa, Oklahoma counties, 
too Carlene Voss, who said she has worked in the Tulsa County 
District Court Clerk's Office for at least 25 years, said the office 
used to receive court costs on forfeiture cases. "I think we should 
(get court costs on forfeitures)," she said. "We used to when the 
money came through us. Anymore, it goes directly into the DA's funds. 
"It (court costs on forfeitures) amounts to a heck of a lot in Tulsa 
County. Now, we get the court costs on gambling (forfeitures) but not 
the drugs." Oklahoma County District Court Clerk Patricia Presley 
said the only court costs on filings by a state entity not being paid 
to Oklahoma County are the court costs on forfeiture cases filed by 
the Oklahoma County District Attorney's Office. The Department of 
Human Services, the Oklahoma Tax Commission and the Oklahoma 
Insurance Commissioner are paying the court costs on cases filed in 
the county, Presley said. She also said she has contacted her 
attorney, who is looking into the matter and at first glance believes 
the office should be receiving the court costs. Presley said the 
Oklahoma County District Attorney's Office also is researching it 
since she made inquiry. "We're looking into and finding out why we're 
not getting the court costs on forfeitures," Presley said.

[Sidebar]

Oklahoma law Title 12 O.S. Section 66 (B), in effect since Nov. 1, 
2002 - "Costs shall be paid to the court fund of the district court 
in which an action is filed from the first funds collected in 
satisfaction of any judgment obtained by this state or any party 
acting under the direction of the state, except when the funds are 
collected pursuant to a child support order or judgment."

Title 63 O.S. Section 2506 (B) indicates how forfeiture proceeds are 
to be distributed and includes they are to go: "To the payment of the 
actual expenses of preserving the property and legitimate costs 
related to the civil forfeiture proceedings ..."

Adjoining states' laws Three states adjoining Oklahoma have 
uniformity in the payment of court costs on forfeiture cases, 
according to laws and/or statements from representatives of attorney 
general offices or district court clerks in Texas, Kansas and Arkansas.

Kansas - A county counselor files forfeiture cases when drug money or 
property is seized, said Sedgwick County District Court Clerk Susan 
Tanner of Wichita.

The money from the seizures first goes through the court clerk, where 
the court costs are subtracted before the balance of the proceeds are 
dispensed according to law, Tanner said.

Texas - State law allows court costs to be taken from the proceeds of 
any forfeitures greater than $2,500, said Thomas Kelley of the Texas 
Attorney General's Office.

The law mandates court costs are to be paid to the district court 
clerks before any deduction for storage and disposal costs or 
distribution to law enforcement agencies involved in the forfeitures.

"If a local agreement exists between the attorney representing the 
state and law enforcement agencies, all money, securities, negotiable 
instruments, stocks or bonds, or things of value, or proceeds from 
the sale of those items shall be deposited, after the deduction of 
court costs to which a district court clerk is entitled under Article 
59.05 (f) ..."

Arkansas - Money forfeited and proceeds of any sale of forfeited 
items is to be deposited in the asset forfeiture fund of the 
prosecuting attorney, according to state forfeiture law. Expenditures 
or distributions are to be in the following order:

For satisfaction of any bona fide security interest or lien; payment 
of all proper expenses of the proceedings for forfeiture and sale, 
including expenses of seizure, maintenance of custody, advertising 
and "court costs."

After deposits to the fund total $20,000 per county, the prosecuting 
attorney has 14 days to notify the circuit judges in the judicial 
district and the Arkansas Drug Director, the law states.

Subsequent to that notification, 20 percent of the proceeds of any 
additional sale or any additional moneys forfeited in the same 
calendar year are to be deposited into the Arkansas State Treasury as 
special revenues to be credited to the Crime Lab Equipment Fund.
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