Future of state forfeiture law called into question

Copyright © 2018 Albuquerque Journal

Three years ago, the state Legislature made it illegal for a local government to take ownership of property from a defendant before that person is convicted of a crime, like DWI. But the city of Santa Fe and Santa Fe County have claimed that the state law doesn’t apply to them.

The two local governments have continued to take vehicles from DWI drivers who are charged with new offenses.

The Santa Fe County Sheriff’s Office now says it will comply with the state law, but Santa Fe city government has taken the issue to the state Court of Appeals.

A federal judge in Albuquerque says in a recent court decision that the DWI forfeiture ordinance in New Mexico’s largest city, which is similar to Santa Fe’s, does not pre-empt the state statute.

The judge also says his findings would have an impact on Santa Fe’s and Las Cruces’ forfeiture ordinances.

But the federal judge didn’t take action against local forfeiture laws, saying he wanted to let state courts rule first in ongoing litigation over the ordinances.

The 2015 state statute also requires law enforcement agencies to provide detailed reports of all the property and currency they take ownership of. But it appears that the State Police is the only agency that has consistently filed any kind of report since the law went into effect.

The statute mandates that the state Department of Public Safety publish reports from law enforcement agencies about seized and forfeited property or money on the DPS website by April 1 of each year. That hasn’t happened, either.

State Treasurer Tim Eichenberg, whose office is responsible for collecting forfeited property and auctioning it, says the 2015 statute is broken and won’t be enforced until it’s fixed. Lawmakers have tried twice to revise the law, in 2017 and 2018, but both attempts failed.

The cash and proceeds from the auction of seized cars and other property are supposed to be deposited into the state general fund. There’s no telling how much money the state missed out on – and that local governments kept – by the 2015 state law not being enforced.

Rep. Zachary Cook

The statute, sponsored by Rep. Zachary Cook of Ruidoso, says property can be forfeited only after a conviction. Once a conviction occurs, then the same jury that heard the case is supposed to decide whether the state has proven whether the property is subject to forfeiture.

Forfeited property and currency is then supposed to be taken to the state treasurer’s office. The treasurer is to auction the property and deposit the proceeds, along with the forfeited cash, into the general fund.

“A law enforcement agency shall not retain forfeited or abandoned property,” the state law says.

The annual reports that law enforcement agencies are directed to submit to DPS and local district attorney’s offices are supposed to include the number of forfeitures, the amount of currency taken, the market value of seized property and the crimes that resulted in the seizure of property or money.

The Las Cruces Police Department, the Santa Rosa Police Department, the state Department of Game and Fish, and the Union County Sheriff’s Office submitted detailed reports on forfeited property, like cars, in 2015, according to records on the DPS website. No agency has reported on forfeited property since then.

State Police, which is run by DPS, is the only agency to consistently report on forfeited money since the law took effect, but hasn’t reported on any property taken. DPS spokesman Herman Lovato in a recent interview did not directly confirm if State Police has taken control of any property since 2015. “What do the reports say?” Lovato said.

The Santa Fe Police Department and the Santa Fe County Sheriff’s Office have never submitted forfeiture or seizure reports to the DPS.

2016 Santa Fe case

In 2016, a Santa Fe city prosecutor lost a forfeiture case against Robert Boulanger in District Court, then filed an appeal. State District Judge Francis Mathew ruled that language in the city ordinance’s “safe harbor” provision on alternatives to forfeiture was ambiguous and ordered the city to return Boulanger’s car. The case is pending in the Court of Appeals.

The city initially took Boulanger’s car because he was arrested for driving with a revoked license, after the license was apparently taken away following a previous DWI conviction. Boulanger said in a court motion that the city should return his car because he was found not guilty of driving with a revoked license. The city argues in a 36-page court brief filed at the appeals court that the state statute doesn’t apply to the city ordinance because the city ordinance doesn’t mention the statute. The brief was supplied by city spokesman Matt Ross recently in response to Journal questions as to why the city wasn’t following state law.

“The Ordinance does not specifically apply the Forfeiture Act,” Assistant City Attorney Alfred Walker wrote. “The Ordinance does not mention the Forfeiture Act or make reference whatsoever to the Forfeiture Act. Any attempt to make the Ordinance subject to the Forfeiture Act would require this Court to ignore the Legislature’s use of the limiting phrase ‘specifically apply’; an interpretation that would violate the most basic tenets of statutory construction.”

Santa Fe continues to file vehicle forfeiture petitions in district court against DWI drivers who re-offend.

Arlene Harjo filed a federal lawsuit against the city of Albuquerque in 2016 when her car was taken after her son was arrested for driving it while drunk.

Albuquerque made similar arguments about the state law not applying to the city ordinance, but Judge James O. Browning said in a March court ruling that a local ordinance cannot ignore a state law by not mentioning the statute.

Such an interpretation would allow “non-criminal forfeitures to continue in New Mexico despite the New Mexico Legislature’s expressly stated purpose that it wished to ‘ensure that only criminal forfeiture is allowed in this state,’ ” Browning wrote.

“Such a pre-emption ruling also suggests that city officials cannot pass any more civil forfeiture ordinances and it also has implications for local authorities throughout the state,” Browning continued.

“For example, in addition to the City of Albuquerque, the City of Santa Fe and the City of Las Cruces – two of New Mexico’s largest population centers outside the City of Albuquerque – also have similar forfeiture ordinances.”

Any ruling against the Albuquerque forfeiture law “would call into doubt the state constitutionality of those ordinances, too,” Browning added.

But Browning said he wasn’t going to practice “supplemental jurisdiction” over the issue because it’s still under consideration at the state appeals court.

SF County will comply

Santa Fe County sheriff’s spokesman Juan Rios said it was the county attorney’s interpretation that the sheriff’s office didn’t need to report forfeitures to the DPS, but the department will now comply with the law after receiving inquiries from local reporters and the Institute for Justice in Arlington, Va.

“If there is anything that is going to be forfeited under the state Forfeiture Act, we will submit a report to the Department of Public Safety and to the district attorney from this point forward,” Rios said Wednesday.

He added that, while seizing vehicles continues, no property or cash has actually been forfeited to the county since the law went into effect in July 2015. All the vehicles that have been seized for DWIs still belong to the title owner, said Rios, apparently pending resolution of forfeiture proceedings.

Santa Fe County spokeswoman Kristine Mihelcic confirmed that the sheriff’s office would no longer be enforcing the county’s forfeiture ordinance while the county “determines the future of the program.”

In April, Albuquerque Mayor Tim Keller – a political ally of Santa Fe Mayor Alan Webber – announced his city would no longer even seize cars from suspected drunken drivers who haven’t been convicted. Previously, the cars were taken upon arrest.

No enforcement provision

Rep. Cook, the sponsor of the 2015 state law, said there wasn’t supposed to be any ambiguity in his bill.

“I didn’t intend there to be any exceptions to the general rule that property couldn’t be forfeited until a conviction,” Cook recently told the Journal. “Where they’re reading the exception into the law, I don’t understand. I don’t believe there is any ambiguity, but apparently there is.”

Treasurer Eichenberg said the law is broken because it’s an unfunded mandate and doesn’t give him enforcement powers. He said it can be enforced only if it’s changed.

“It’s been an unworkable law for law enforcement and the treasurer’s office,” Eichenberg said. “They made me responsible to oversee law enforcement. I have no authority or powers to force law enforcement to do what I want them to do. They just put me in charge of collecting the money. We’re not doing anything until we get the law fixed. There are a lot of problems with the law, in my opinion.

“That first year after the law passed, we did nothing. I have no staff for it, I don’t have the ability to enforce it.”

The statute doesn’t lay out who or what agency is supposed to enforce the law. Lovato, of DPS, didn’t directly say if DPS asks local police departments for their reports, even though DPS is responsible for uploading the reports to its website.

“Does the law say we have to?” Lovato said.

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