IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,719
STATE OF KANSAS ex rel.
TOPEKA POLICE DEPARTMENT,
Appellee,
v.
$895.00 U.S. CURRENCY and
3.15 GRAMS COCAINE,
Appellant.
SYLLABUS BY THE COURT
1. The interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute.
2. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it.
3. Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.
4. In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature's intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.
5. Under the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4111(a) provides that in a civil forfeiture case only an owner of or interest holder in property seized may file a claim in a forfeiture proceeding.
6. The attorney fees exemption provided for in K.S.A. 60-4106(a)(5)(A) does not operate independently but must be read in conjunction with the claims provision of K.S.A. 60-4111(a).
7. K.S.A. 2005 Supp. 22-4504(c), which allows for the cost of legal services of appointed counsel to be entered as a judgment against a criminal defendant if convicted and found to be financially able to pay, is inapplicable to this case and, absent a judgment for such fees, provides no relief for an attorney claiming fees in a forfeiture action under the Kansas Standard Asset Seizure and Forfeiture Act.
8. Under the Kansas Standard Asset Seizure and Forfeiture Act, the one from whom the property was seized may submit a claim for the seized property in order to pay fees necessary for the defense of the person's criminal charge subject to conditions set forth in K.S.A. 60-4112(e).
9. If before the commencement of a civil forfeiture action, an attorney obtains possession of the subject property as a retainer in a criminal case related to violations of the Kansas Standard Asset Seizure and Forfeiture Act, the attorney becomes an "interest holder" as defined in K.S.A. 60-4102(e) and is authorized under K.S.A. 60-4111(a), subject to conditions enumerated in K.S.A. 60-4106, to file a claim in the forfeiture action.
10. An order to strike is not appealable unless it has the features of finality by serving the same purpose as a demurrer to test the sufficiency of a claim or defense. If the lack of standing is clearly evident from the filed claim or answer, the order to strike will be successful.
11. Consistent with the language in the Model Asset Seizure and Forfeiture Act of 1991, the language of the Kansas Standard Asset Seizure and Forfeiture Act shows that the legislature intended that one must be an owner or an interest holder in the seized property in order to have standing to file a claim in a civil forfeiture proceedings.
12. Under the facts of this case, since the State Board of Indigents' Defense Services (BIDS) was not an owner or an interest holder in the seized funds, BIDS lacked standing to make a claim in the forfeiture proceeding.
Appeal from Shawnee district court, NANCY E. PARRISH, judge. Opinion filed May 5, 2006. Affirmed.
Reid T. Nelson, capital appellate defender, argued the cause and was on the brief for appellant.
Robert D. Hecht, district attorney, argued the cause, and Amy M. Memmer, assistant district attorney, and Phill Kline, attorney general were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: The question we must resolve arises under the Kansas Standard Asset Seizure and Forfeiture Act (KSASFA), K.S.A. 60-4101 et seq. The State began civil forfeiture proceedings after seizing $895 in U.S. Currency and 3.15 grams of cocaine during the criminal arrest of Maurice Wright. In this proceeding, the State Board of Indigents' Defense Services (BIDS) responded by filing a claim for present and anticipated attorney fees in Wright's criminal case. BIDS appeals from an order striking its claim based upon the district court's conclusion that BIDS lacked standing. We affirm.
When arrested on March 12, 2004, Wright had 3.15 grams of cocaine and $895 on his person. The property was seized for forfeiture during the arrest. On March 15, 2004, the district court appointed the Third Judicial District Public Defender's office to represent Wright in his criminal case. Pursuant to K.S.A. 2005 Supp. 22-4529, the district court ordered Wright to pay an application fee of $50 for his court-appointed counsel. At that time, Wright was in custody but had not been formally charged.
On April 15, 2004, the State commenced a civil forfeiture action in the district court against the $895 and 3.15 grams of cocaine by filing a "Notice of Pending Forfeiture" pursuant to K.S.A. 60-4109(a). Wright received a copy of the notice by residential service on April 24, 2004. Then, on August 13, 2004, the notice was published in The Topeka Metro News, the official county newspaper for Shawnee County, Kansas, pursuant to K.S.A. 60-4109(a)(3)(C).
Before entry of judgment on the seized property, BIDS filed an "Affidavit of Claimant" in the district court on May 11, 2004. BIDS claimed that, under K.S.A. 60-4106(a)(5)(A), as a judgment creditor/lienholder, it had an interest in Wright's seized $895. In addition to claiming the right for reimbursement of the $50 application fee, BIDS also asserted that it had an interest in Wright's forfeited property in the amount of $2,000 to "secure reimbursement of reasonable expenses" for anticipated legal services in his criminal case. Based on the 2002 BIDS guidelines and the felony charges filed against Wright, BIDS believed it would be entitled to a reasonable reimbursement of $2,000 if Wright's case went to trial.
The State filed a motion to strike BIDS's claim, arguing that BIDS lacked standing to contest the forfeiture action. The State asserted that BIDS's reliance on K.S.A. 60-4106(a)(5)(A) was misplaced because BIDS never acquired an interest in the specific funds being forfeited. According to the State, BIDS had, at most, a general unsecured claim against Wright for legal services rendered. The State argued that a general interest in an unidentified portion of Wright's property was not enough to grant BIDS standing to contest the forfeiture action. In the alternative, the State contended that even if BIDS had an interest in the property, the $895 was not exempt from forfeiture under the plain language of K.S.A. 60-4106(b)(3) because BIDS had actual or constructive notice of the property's seizure.
DISTRICT COURT'S MEMORANDUM DECISION
The district court held a hearing on BIDS's claim. In a well-reasoned opinion, Shawnee County District Judge Nancy E. Parrish granted the State's motion to strike. In its memorandum decision, the district court agreed with the State's contention that BIDS lacked standing to file a claim in the forfeiture action. The court first considered whether BIDS had an interest in the entire amount of $895, not merely the $50 initially ordered payable to BIDS by the court.
The district court observed that criminal charges were filed against Wright on March 22, 2004, in case No. 04CR480, but as of the date of the memorandum decision, Wright's case had not yet gone to trial. The court pointed out that if Wright were acquitted or if his case were dismissed, any application fee paid would be remitted to him. Only if Wright were convicted would he be ordered to pay reimbursement to BIDS for his defense. Thus, the district court found that BIDS obtained no interest beyond $50, contingent upon Wright's criminal conviction.
The district court further rejected BIDS's contention that the $895 in seized funds was exempt from forfeiture under K.S.A. 60-4106(a) and, therefore, should be held as security for the reimbursement of BIDS's fees. The court found that, for the exemption to apply, the party asserting the exemption must first be an owner of or an interest holder in the property. See K.S.A. 60-4111(a). The court concluded that BIDS did not meet the requirements of K.S.A. 60-4111(a).
With regard to the relationship between BIDS and Wright, the district court stated that, because BIDS was entitled to receive $50 from Wright upon Wright's criminal conviction in case No. 04CR480, a debtor/creditor relationship arguably existed. Regardless, the court determined that BIDS was not an "interest holder" as defined under K.S.A. 60-4102(e). The district court rejected BIDS's assertion that it was a judgment creditor/lienholder in the amount of $2,000, finding BIDS's assertion problematic on two grounds. First, there was no court order directing that $2,000 be paid to BIDS. Thus, at the time of the seizure of Wright's property, he did not owe this amount to BIDS. Second, BIDS's claim against Wright for attorney fees in the amount of $50 was not secured by a lien on Wright's property, so BIDS could not be characterized as a lien creditor. See K.S.A. 2005 Supp. 84-9-102(a)(52)(A) (defining "lien creditor" as a "creditor that has acquired a lien on the property involved by attachment, levy, or the like").
In addition, the district court found that BIDS was not a judgment creditor because the court's order to pay $50 to BIDS did not confer on BIDS the right to enforce immediate execution of the order to recover that amount, nor was the order a judgment for damages against Wright. See Black's Law Dictionary 861 (8th ed. 2004) (defining "judgment creditor" as "[a] person having a legal right to enforce execution of a judgment for a specific sum of money" and defining "money judgment" as "[a] judgment for damages subject to immediate execution, as distinguished from equitable or injunctive relief").
Finally, the district court found it troublesome that BIDS did not have an interest in the particular currency seized from Wright, which the court found was a requirement of K.S.A. 60-4111(a). The court observed that BIDS did not allege in its affidavit of claimant that the court ordered the $50 in attorney fees to be paid directly from the seized funds; instead, BIDS merely claimed that the "court initially ordered attorney fees of $50." Therefore, the district court determined that nothing connected the award of attorney fees to the seized property. The court concluded that BIDS's right to $50 from Wright could be characterized as a "general right," which did not entitle it to receive payment from any particular asset of Wright's property. Consequently, the district court held that BIDS lacked standing to file a claim against the forfeiture of the seized funds.
Did the District Court Err in Granting the Motion to Strike?
BIDS contends that the district court erred in striking its claim for "reasonable attorney fees" because attorney fees in connection with criminal cases are generally exempt from forfeiture under K.S.A. 60-4106(a)(5)(A). BIDS further contends that the district court erred in applying the following provision of K.S.A. 60-4111(a): "Only an owner of or interest holder in property seized for forfeiture may file a claim." BIDS argues that K.S.A. 60-4111(a) does not apply to the attorney fees exemption. While BIDS raised another issue involving the constitutionality of the notice published by the State in the judicial forfeiture action, we do not reach the issue because our resolution on the order to strike is dispositive, rendering the notice issue moot.
Standard of Review
The resolution of this case involves statutory provisions of the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq. The interpretation of a statute is a question of law, and an appellate court's review is unlimited. An appellate court is not bound by the district court's interpretation of a statute. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
In resolving questions of statutory interpretation, this court follows a cardinal rule of statutory construction:
"It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it." State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001) (citing In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 [1998]).
DISCUSSION AND ANALYSIS
This appeal involves a question of first impression in Kansas. The action arises under the provisions of the KSASFA, which is based in large part on the Model Asset Seizure and Forfeiture Act (1991) (Model Act). While there are slight differences between the Model Act and the KSASFA, most of the provisions of the Model Act are incorporated into the Kansas Act by our legislature. See L. 1994, ch. 339; Model Act § 10 (cited in 3 Kessler, Civil and Criminal Forfeiture, App. J-73 [2005]) ("[o]nly an owner of or interest holder in property seized for forfeiture may file a claim"); K.S.A. 60-4111(a). The Model Act represents the most advanced expression of social efforts to cope effectively with the financial aspects of economically motivated crimes. The Model Act was drawn with a recognition that people deserve to be protected from the predatory reach of financially motivated criminal enterprises. Forfeiture is effective because it seizes the economic strength of these enterprises and redirects it to positive social goals. Moreover, provisions of the Model Act have been tested and found to be effective in Arizona since 1986 and adopted initially in various forms in Hawaii, Oregon, Louisiana, and Arkansas. See 3 Kessler, Civil and Criminal Forfeiture, App. J-73. Forfeiture statutes have also been implemented in California, Connecticut, Florida, Illinois, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, and Wisconsin. 3 Kessler, Civil and Criminal Forfeiture (2006 Supp.).
In the present case, the State commenced its action by filing a notice of pending forfeiture in the district court pursuant to K.S.A. 60-4109(a). Within 30 days, BIDS responded by filing an affidavit of claimant under the provisions of K.S.A. 60-4111 seeking the seized $895 under an exemption for attorney fees pursuant to K.S.A. 60-4106(a)(5)(A). The district court ordered BIDS's claim striken for lack of standing. Before the district court, BIDS claimed it was an "interest holder" of the property under K.S.A. 60-4111(a), defined in K.S.A. 60-4102(e):
"'Interest holder' means a secured party within the meaning of the uniform commercial code, a mortgagee, lien creditor, judgment creditor or the beneficiary of a security interest or encumbrance pertaining to an interest in property, whose interest would be perfected against a good faith purchaser for value."
Contrary to its affidavit of claim filed in the forfeiture action and its position before the district court, BIDS charts a different course on appeal. Instead of relying on its alleged status as an "interest holder," BIDS argues that its claim does not depend upon its alleged status as an interest holder, but rests independently upon the attorney fees exemption provided in K.S.A. 60-4106(a)(5)(A):
"An interest in property acquired in good faith by an attorney as reasonable payment or to secure payment for legal services in a criminal matter relating to violations of this act or for the reimbursement of reasonable expenses related to the legal services is exempt from forfeiture unless before the interest was acquired the attorney knew of a judicial determination of probable cause that the property is subject to forfeiture." (Emphasis added.)
Although we are convinced that the provisions of K.S.A. 60-4111(a) limiting the filing of a claim to an owner or interest holder provides no exception for attorney fees, we nevertheless address directly BIDS's claim to the $895 based upon the attorney fees exemption.
The $895 was seized along with 3.15 grams of cocaine from Wright at the time of his arrest. At no time did BIDS have possession or control of the seized $895. K.S.A. 60-4106(a)(5)(A) requires the one claiming the exemption to have acquired an interest in good faith. While the word "acquire" is not defined in the KSASFA, its ordinary meaning refers to one in possession of the property. Moreover, when the ordinary meaning of this word is considered with other provisions of the KSASFA, we believe the legislature clearly intended that the ordinary meaning of acquire apply. Time honored and tested rules of statutory construction support such a result.
"Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]" GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
"Acquire" is defined in Black's Law Dictionary 25 (8th ed. 2004) as: "To gain possession or control of; to get or obtain." Again, in Webster's New Collegiate Dictionary 10 (1973) "acquire" is defined as: "1. [T]o get as one's own; a: to come into possession or control of often by unspecified means." The ordinary meaning of the word as used in the attorney fees exemption statute contemplates possession or control of the property seized.
This court has also often applied another sound principle of statutory construction in determining legislative intent:
"In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature's intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted." State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
In this case, we need not omit or insert terminology because the entire KSASFA in pari materia, adequately answers the arguments advanced by BIDS. BIDS argues that the provisions of K.S.A. 60-4111 and K.S.A. 60-4106(a)(5)(A) make no sense if read together in that no attorney would ever be entitled to fees if he or she had to be an owner or interest holder as required by 60-4111. However, reading both statutes together makes perfect sense if the attorney has accepted fees or acquired fees under the exemption in good faith. While BIDS had no opportunity to acquire the property because it was seized upon the arrest of Wright, the KSASFA itself allows the State to constructively seize the property, K.S.A. 60-4109(a) and K.S.A. 60-4107(c), and proceed with forfeiture. Had Wright first transferred the property to his attorney as a retainer in the criminal case, the attorney in possession of the property would have been an "interest holder" under the KSASFA, as that term is defined in K.S.A. 60-4102(e), and would have been authorized under K.S.A. 60-4111(a) as an "interest holder," subject to conditions enumerated in K.S.A. 60-4106, to file a claim in the forfeiture action. Reading the provisions of the KSASFA in pari materia dispels the argument of BIDS and provides clarity.
In addition, when the provision for attorney fees exemption is carefully read, it is clear that in order to be exempt from forfeiture, the attorney must receive the fees in good faith as reasonable fees to secure payment for legal services in a criminal matter relating to violations of the KSASFA unless "before the interest was acquired the attorney knew of a judicial determination of probable cause that the property is subject to forfeiture." K.S.A. 60-4106(a)(5)(A). According to BIDS, it acquired an interest when it was appointed to represent Wright. The district court opinion answers BIDS's claim by pointing out that even the $50 charged upon initial appointment of counsel was contingent upon conviction, and if Wright were acquitted, he would not be required to pay the $50. Moreover, the district court persuasively ascertained that, at most, BIDS was a general creditor without a claim on specific funds, i.e., the $895. To demonstrate the wisdom of the legislature in its use of the word "acquire" in the KSASFA, it is notable that, under the Uniform Commercial Code (UCC), one may perfect an interest in money through possession. See K.S.A. 2005 Supp. 84-9-312; K.S.A. 2005 Supp. 84-9-313. Thus, an attorney who has acquired a retainer for a fee would by his or her possession have a security interest in the money and would be able to file a claim in a forfeiture proceeding.
Even if we were to consider, for the sake of argument, that BIDS qualified as an interest holder capable of filing a claim, the following provisions of K.S.A. 60-4106(b)(3) would necessarily defeat BIDS's claim of exemption:
"(b) Notwithstanding subsection (a) [relating to all exemptions including attorney fees], property is not exempt from forfeiture, even though the owner or interest holder lacked knowledge or reason to know that the conduct giving rise to property's forfeiture had occurred or was likely to occur, if the:
. . . .
(3) owner or interest holder acquired the property with notice of the property's actual or constructive seizure for forfeiture under this act, or with reason to believe that the property was subject to forfeiture under this act."
BIDS, as the attorney for Wright, knew that he was charged with a felony drug charge and, at the time BIDS filed its claim in the forfeiture action, knew the $895 had been seized at the time of Wright's arrest and was the subject of the forfeiture action. Thus, in accordance with K.S.A. 60-4106(b)(3), the property was not exempt from forfeiture because BIDS had "reason to believe that the property was subject to forfeiture under this act."
BIDS claims on appeal that it acquired its interest the day it was appointed to represent Wright and did not know at that time the property was subject to forfeiture. This claim, however, lacks merit for this lack of knowledge does not avail BIDS as indicated above. Its claim further points to the necessity under the KSASFA to define the term "acquire" as "to have possession or control of"; otherwise, the use of "acquired" in K.S.A. 60-4106(a)(5)(A) becomes meaningless.
BIDS was appointed soon after the arrest of defendant. The property, including cocaine, was seized at the time of arrest. (See K.S.A. 60-4112[j] with regard to the rebuttable presumption arising when money is found in close proximity to contraband.) Moreover, at the time it filed its claim, BIDS was on actual notice of the seizure for forfeiture and was the attorney for defendant "with reason to believe that the property was subject to forfeiture under this act." See K.S.A. 60-4106(b)(3).
Finally, the KSASFA provides a method for recovery of seized property to aid in the payment of attorney fees. K.S.A. 60-4112(e) provides "[a] person charged with a criminal offense may apply at any time before final judgment to the court where the forfeiture proceeding is pending for the release of property seized for forfeiture, that is necessary for the defense of the person's criminal charge," provided the conditions set forth in the statute are met. Thus, the KSASFA authorizes the one from whom the property is seized to submit a claim for the seized property to pay present and anticipated attorney fees.
K.S.A. 60-4112(h) provides that "[i]n any proceeding under this act, if a claim is based on any exemption provided for in this act, the burden of proving the existence of the exemption is on the claimant, and [it] is not necessary for the seizing agency or plaintiff's attorney to negate the exemption in any application or complaint." Consistent with the provisions of the KSASFA, including K.S.A. 60-4111(a) and K.S.A. 60-4112(e), the district court was correct in its determination that BIDS was not an "interest holder" of the $895 and "[o]nly an owner of or interest holder in property seized for forfeiture may file a claim" for the property under K.S.A. 60-4111(a). BIDS never acquired an interest in the property as required by the exemption language in order to be eligible to file a claim. As stated by the district court, BIDS's only claim was that of a general creditor with no right to file a claim in the specific funds seized and subject to forfeiture.
Motion to Strike
Upon the State's motion to strike BIDS's claim, the district court concluded that BIDS had no standing to make a claim. In the context of a forfeiture proceeding, K.S.A. 60-4112(q) provides that "[e]xcept as otherwise provided by this act, all proceedings hereunder shall be governed by the rules of civil procedure pursuant to K.S.A. 60-101 et seq., and amendments thereto." The motion to strike is governed by the rules of civil procedure, K.S.A. 60-212(f), which provides:
"Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this article, upon motion made by a party within 20 days after the service of the pleading upon such party or upon the court's own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
An order to strike is not "appealable unless it has the features of finality by serving the same purpose as a demurrer to test the sufficiency of a claim or defense." 4 Gard & Casad, Kansas C. of Civ. Proc. Annot. §60-212, p. 74 (4th ed. 2003); see Harris v. City of Topeka, 180 Kan. 758, Syl. ¶ 1, 308 P.2d 88 (1957). Cf. G.S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861, Syl. ¶ 1, 84 P.2d 934 (1938) (where certain allegations in petition involve merits of the cause of action, order to strike allegations is appealable order and is equivalent to order sustaining demurrer).
The order to strike BIDS's claim for lack of standing had all the features of finality in that it fully adjudicated any and all interests claimed in the $895 and, therefore, was an appealable order. In such a case, the district court is limited to the four corners of the pleadings and documents on file with the court, and no extrinsic evidence is permitted. Cf. K.S.A. 60-212(c) (motion for judgment on the pleadings); Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970) (question is whether moving party is entitled to judgment on face of the pleadings themselves); Fielding v. Alkire, 124 Kan. 592, 597, 261 Pac. 597 (1927) ("When judgment is rendered on the pleadings, those allegations of the amended petition which are denied or put in issue are not considered. Only the express or implied admissions and the allegations of the answer are the basis of such ruling."); see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). Thus, if the lack of standing is clearly evident from the filed claim or answer as it was in this case, the motion to strike will be successful.
BIDS never acquired an interest in the specific funds, the $895, which were subject to forfeiture. Moreover, we agree with the district court's finding that BIDS's right to $50 from Wright was a general right, giving BIDS an unsecured claim against Wright's property, contingent upon his conviction. While no Kansas cases have addressed whether an unsecured creditor has standing to contest a civil forfeiture proceeding, federal courts, including the Tenth Circuit Court of Appeals, have consistently held that "unsecured creditors do not have standing to challenge the civil forfeiture of their debtors' property." United States v. $20,193.39 U.S. Currency, 16 F.3d 344, 346 (9th Cir. 1994) (citing United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 907 [11th Cir. 1985], cert. denied 474 U.S. 1056 [1986]; United States v. $47,875.00 in U.S. Currency, 746 F.2d 291, 294 [5th Cir. 1984]; United States v. $3,799.00 in U.S. Currency, 684 F.2d 674, 678 [10th Cir. 1982]; United States v. 127 Shares of Stock in Paradigm Mfg., 758 F. Supp. 581, 583 [E.D. Cal. 1990]). As previously alluded to, the reasoning behind this holding is that general creditors, unlike secured creditors, cannot claim an interest in a particular asset or piece of property.
Moreover, the Model Asset Seizure and Forfeiture Act of 1991, upon which the KSASFA is based, sheds some guidance upon the issue of standing. Although the Model Act does not contain a statutory exemption for attorney fees, it does contain a provision pertaining to owner/interest holder requirements identical to our Kansas provision, K.S.A. 60-4111(a). Section 10 of the Model Act provides that "[o]nly an owner of or interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this section." 3 Kessler, Civil and Criminal Forfeiture, App. J-73. Commentary on the Model