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.