Bill Summary – FastDemocracy

0345.04000
     Sixty-sixth
     Legislative Assembly                    HOUSE BILL NO. 1286
     of North Dakota
     Introduced by
       Representatives Becker, Blum, Johnston, Paur, Pyle, Satrom, Simons, Strinden
       Senators Hogue, Kannianen, Luick, Unruh
  A BILL for an Act to create and enact two new sections to chapter 29-31.1 of the North Dakota
  Century Code, relating to reporting seizures and forfeitures, and prohibiting adoptive seizures;
  to create and enact sections 29-31.1-04.1, 29-31.1-04.2, 29-31.1-04.3, 29-31.1-04.4,
  29-31.1-04.5, 29-31.1-04.6, 29-31.1-04.7, 29-31.1-04.8, and 29-31.1-04.9 of the North Dakota
  Century Code, relating to manner of forfeiture, forfeiture proceeding as civil action, disposition
  of property, and hearing on contested forfeiture and proportionality; to amend and reenact
  sections 12.1-06.1-05 and 12.1-06.1-06, subsection 2 of section 12.1-23.1-03, sections
  19-03.1-36, 20.1-10-01, 20.1-10-03, and 20.1-10-07, subsection 1 of section 27-20-03,
  subsection 1 of section 28-04-03, sections 29-27-02.1, 29-31.1-01, 29-31.1-03, 29-31.1-04,
 29-31.1-05, and 29-31.1-06, subsection 1 of section 29-31.1-07, sections 29-31.1-08,
 29-31.1-09, 39-03-18, and 39-08-01.3, subsection 2 of section 39-30-03, section 39-30-04,
 subsection 1 of section 39-30-05, sections 40-11-13, 47-21.1-04, 54-12-14, 57-36-14, and
 62.1-01-02, and subsection 2 of section 62.1-05-01 of the North Dakota Century Code, relating
 to racketeering, forfeiture of controlled substances, forfeiture of confiscated hunting and fishing
 equipment, juvenile court jurisdiction, property forfeiture and disposition, highway patrol and
 attorney general assets forfeiture fund, and forfeiture of dangerous weapons and firearms; to
 repeal sections 19-03.1-36.1, 19-03.1-36.2, 19-03.1-36.3, 19-03.1-36.4, 19-03.1-36.5,
 19-03.1-36.6, 19-03.1-36.7, 20.1-10-04, and 29-31.1-10, and chapter 32-14 of the North Dakota
 Century Code, relating to forfeiture proceedings, forfeiture disposition, and actions to recover
 forfeitures; and to provide an appropriation.
 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
     SECTION 1. AMENDMENT. Section 12.1-06.1-05 of the North Dakota Century Code is
 amended and reenacted as follows:
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     12.1-06.1-05. Racketeering - Civil remedies.
      1.   A person who sustains injury to person, business, or property by a pattern of
           racketeering activity or by a violation of section 12.1-06.1-02 or 12.1-06.1-03 may file
           an action in district court for the recovery of treble damages and the costs of the suit,
           including reasonable attorney fees. The state may file an action in behalf of those
           persons injured or to prevent, restrain, or remedy a pattern of racketeering activity or a
           violation of section 12.1-06.1-02 or 12.1-06.1-03.
      2.   The district court has jurisdiction to prevent, restrain, and remedy a pattern of
           racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03 after making
          provision for the rights of all innocent persons affected by the violation and after
          hearing or trial, as appropriate, by issuing appropriate orders.
     3.   Prior to a determination of liability, orders may include entering restraining orders,
          receivership orders or prohibitions or other actions, including the acceptance of
          satisfactory performance bonds, in connection with any property or other interest
          subject to damages, forfeiture, or other restraints pursuant to this section.
     4.   Following a determination of liability, orders may include:
          a.   Ordering any person to divest himself of any interests, direct or indirect, in any
               enterprise.
          b.   Imposing reasonable restrictions on the future activities or investments of anya
               person, including prohibiting any person from engaging in the same type of
               endeavor as the enterprise engaged in, the activities of which affect the laws of
               this state, to the extent the constitutions of the United States and this state
               permit.
          c.   Ordering dissolution or reorganization of any enterprise.
          d.   Ordering the payment of treble damages and appropriate restitution to those
               persons injured by a pattern of racketeering activity or a violation of section
               12.1-06.1-02 or 12.1-06.1-03.
          e.   Ordering the payment of all costs and expenses and reasonable attorneys' fees
               concerned with the prosecution and investigation of any offense included in the
               definition of racketeering if upon application for the order it is shown to the
               satisfaction of the court that the racketeering offense has occurred as a part of a
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                pattern of racketeering activity or a violation of section 12.1-06.1-02 or
                12.1-06.1-03, civil and criminal, incurred by the state or county as appropriate to
                be paid to the general fund of the state or county that brings the action.
           f.   Forfeiture, pursuant toin accordance with chapter 32-14, to the state school fund
                of the state or county as appropriate under section 29-27-02.1, to the extent not
                already ordered to be paid in other damages29-31.1 of:
                (1)   Any propertyProperty or other interest acquired or maintained by a person in
                      violation of section 12.1-06.1-02 or 12.1-06.1-03.
                (2)   Any interest in, security of, claims against, or property or contractual right of
                     any kind affording a source of influence over any enterprise that a person
                     has established, operated, controlled, conducted, or participated in the
                     conduct of in violation of section 12.1-06.1-02 or 12.1-06.1-03.
               (3)   All proceeds traceable to an offense included in the definition of
                     racketeering and all moneys, negotiable instruments, securities, and other
                     things of value used or intended to be used to facilitate commission of the
                     offense if upon application for the order it is shown to the satisfaction of the
                     court that the racketeering offense has occurred as a part of a pattern of
                     racketeering activity.
          g.   Payment to the state school fund of the state or county as appropriate under
               section 29-27-02.1 of an amount equal to the gain a person has acquired or
               maintained through an offense included in the definition of racketeering if upon
               application for the order it is shown to the satisfaction of the court that the
               racketeering offense has occurred as a part of a pattern of racketeering activity.
     5.   In addition to or in lieu of an action under this section the state may file an action
          under chapter 29-31.1 for forfeiture to the state school fund of the state or county as
          appropriate under section 29-27-02.1, to the extent not already ordered paid pursuant
          to this section, of:
          a.   Any interest acquired or maintained by a person in violation of section
               12.1-06.1-02 or 12.1-06.1-03.
          b.   Any interest in, security of, claims against, or property or contractual right of any
               kind affording a source of influence over any enterprise that a person has
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                established, operated, controlled, conducted, or participated in the conduct of in
                violation of section 12.1-06.1-02 or 12.1-06.1-03.
           c.   All proceeds traceable to an offense included in the definition of racketeering and
                all moneys, negotiable instruments, securities, and other things of value used or
                intended to be used to facilitate the commission of the offense if upon application
                for the order it is shown to the satisfaction of the court that such racketeering
                offense has occurred as a part of a pattern of racketeering activity.
      6.   A defendant convicted in any criminal proceeding shall beis precluded from
           subsequently denying the essential allegations of the criminal offense of which hethe
          defendant was convicted in any civil proceeding. For purposes of this subsection, a
          conviction may result from a verdict or plea including a no contest plea.
     7.   Notwithstanding any law to the contrary, the initiation of civil proceedings related to
          violations of any offense included in the definition of racketeering or a violation of
          section 12.1-06.1-02 or 12.1-06.1-03 must be commenced within seven years of
          actual discovery of the violation.
     8.   This state may, in a civil action brought pursuant to this section, file with the clerk of
          the district court a certificate stating that the case is of special public importance. A
          copy of that certificate shallmust be furnished immediately by the clerk to the presiding
          judge of the district court in which the action is pending and, upon receipt of the copy,
          the judge shall immediately designate a judge to hear and determine the action. The
          judge designated shall promptly assign the action for hearing, participate in the
          hearings and determination, and cause the action to be expedited.
     9.   TheWith the exception of an action for forfeiture under subsections 4 or 5, the
          standard of proof in actions brought pursuant tounder this section is the
          preponderance of the evidence.
    10.   A person other than the attorney general or state's attorney who files an action under
          this section shall serve notice and one copy of the pleading on the attorney general
          within thirty days after the action is filed with the district court. The notice shall identify
          the action, the person, and the person's attorney. Service of the notice does not limit
          or otherwise affect the right of the state to maintain an action under this section or
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           intervene in a pending action nor does it authorize the person to name the state or the
           attorney general as a party to the action.
     11.   Except in cases filed by a state's attorney, the attorney general may, upon timely
           application, intervene in any civil action or proceeding brought pursuant to this section
           if the attorney general certifies that in histhe attorney general's opinion the action is of
           special public importance. Upon intervention, the attorney general may assert any
           available claim and is entitled to the same relief as if the attorney general had
           instituted a separate action.
     12.   In addition to the state's right to intervene as a party in any action under this section,
          the attorney general may appear as amicus curiae in any proceeding in which a claim
          under this section has been asserted or in which a court is interpreting any provisions
          of this chapter.
    13.   A civil action under this section is remedial and does not limit any other civil or criminal
          action. Civil remedies provided under this section are supplemental and not mutually
          exclusive.
    SECTION 2. AMENDMENT. Section 12.1-06.1-06 of the North Dakota Century Code is
 amended and reenacted as follows:
    12.1-06.1-06. Racketeering lien - Content - Filing - Notice - Effect.
     1.   The state, upon filing a civil action under section 12.1-06.1-05 or upon charging an
          offense included in the definition of racketeering if the offense is committed as a part
          of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or
          12.1-06.1-03, may file a racketeering lien. A filing fee or other charge is not required
          for filing a racketeering lien.
     2.   A racketeering lien shallmust be signed by the attorney general or the state's attorney
          representing the state in the action and set forth the following information:
          a.   The name of the defendant whose property, interests in property, or other
               interests are to be subject to the lien.
          b.   In the discretion of the attorney general or state's attorney filing the lien, any
               aliases or fictitious names of the defendant named in the lien.
          c.   If known to the attorney general or state's attorney filing the lien, the present
               residence or principal place of business of the person named in the lien.
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           d.   A reference to the proceeding pursuant to which the lien is filed, including the
                name of the court, the title of the action, and the court's file number for the
                proceeding.
           e.   The name and address of the attorney representing the state in the proceeding
                pursuant to which the lien is filed.
           f.   A statement that the notice is being filed pursuant to this section.
           g.   The amount which the state claims in the action or, with respect to property or
                other interests which the state has requested forfeiture to the state or county, a
                description of the property or interests sought to be paid or forfeited.
          h.   If known to the attorney general or state's attorney filing the lien, a description of
               property which is subject to forfeiture to the state or property in which the
               defendant has an interest which is available to satisfy a judgment entered in favor
               of the state.
          i.   Such other information as the attorney general or state's attorney filing the lien
               deems appropriate.
     3.   The attorney general or the state's attorney filing the lien may amend a lien filed under
          this section at any time by filing an amended racketeering lien in accordance with this
          section which identifies the prior lien amended.
     4.   The attorney general or the state's attorney filing the lien shall, as soon as practical
          after filing a racketeering lien, shall furnish to any person named in the lien a notice of
          the filing of the lien. Failure to furnish notice under this subsection does not invalidate
          or otherwise affect a racketeering lien filed in accordance with this section.
     5.   ASubject to chapter 29-31.1, a racketeering lien is perfected against interests in
          personal property by filing the lien with the secretary of state, except that in the case of
          titled motor vehicles it shall, which must be filed with the director of the department of
          transportation. A racketeering lien is perfected against interests in real property by
          filing the lien with the county recorder of the county in which the real property is
          located. The state may give additional notice of the lien.
     6.   TheSubject to chapter 29-31.1, the filing of a racketeering lien in accordance with this
          section creates a lien in favor of the state in:
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           a.   Any interest of the defendant in real property situated in the county in which the
                lien is filed, then maintained or later acquired in the name of the defendant
                identified in the lien.
           b.   Any interest of the defendant in personal property situated in this state, then
                maintained or later acquired in the name of the defendant identified in the lien.
           c.   Any property identified in the lien to the extent of the defendant's interest in the
                property.
      7.   TheSubject to chapter 29-31.1, the filing of a racketeering lien under this section is
           notice to all persons dealing with the person or property identified in the lien of the
          state's claim. The lien created in favor of the state in accordance with this section is
          superior and prior to the claims or interests of any other person, except a person
          possessing:
          a.   A valid lien perfected prior to the filing of the racketeering lien.
          b.   In the case of real property, an interest acquired and recorded prior to the filing of
               the racketeering lien.
          c.   In the case of personal property, an interest acquired prior to the filing of the
               racketeering lien.
     8.   Upon entry of judgment in favor of the state, the state may proceed to execute the
          judgment as in the case of any other judgment, except that in order to preserve the
          state's lien priority as provided in this section the state shall, in addition to notice as
          required by law, shall give at least thirty days' notice of ex