Request By:
W. Michael Troop
Secretary, Justice Cabinet
High Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
You have requested our opinion as to whether Section 6077 of the Anti-Drug Abuse Act of 1988 limits the federal government's ability to share property forfeited to the United States with state and local governments.
Section 6077 of the Anti-Drug Abuse Act of 1988 (Public Law 100-690) is codified at 21 U.S.C. 881(e). Subsection (3)(B) states that the U.S. Attorney General
"shall assure that any property transferred to a state or local law enforcement agency under paragraph (1)(A) . . . (B) is not so transferred to circumvent any requirement of state law that prohibits forfeiture or limits use or disposition of property forfeited to state or local agencies."
Forfeiture of property is the involuntary transfer of private property by its owner to the federal or state government as punishment for the violation of certain statutes, particularly, here, drug abuse statutes. See 38 A.L.R.4th 496, 497. The property is forfeited to that government whose statutes are violated. 36 Am.Jur.2d, Forfeitures and Penalties, § 10. There are, of course, state and federal criminal statutes. There are also federal and state forfeiture laws. Kentucky's forfeiture law is at KRS 218A.410 et seq. The forfeiture of property which is seized by state or local law enforcement officials for violations of state criminal laws is governed by these statutes. KRS 218A.430 puts a maximum ceiling on the amount of the proceeds which may be retained by the participating law enforcement agency. That amount is $ 100,000. Any amount over $ 100,000 must be turned over to the Cabinet for Human Resources to be put in a trust and revolving account to be used for the purpose of drug and alcohol abuse education, prevention and treatment.
KRS 218A.415(1) states, in part:
"Property subject to forfeiture under this chapter may be seized by any law enforcement agency upon process issued by any court having jurisdiction over the property."
This provision would require a court to have jurisdiction over the property to be forfeited. We interpret this provision to refer to state courts which have jurisdiction either because of a state criminal proceeding or a state forfeiture proceeding. In the event a forfeiture proceeding is properly commenced in federal court, it would be our opinion that KRS 218A.410 et seq., would be inapplicable. Furthermore, it is our opinion that such an action by the federal government commenced pursuant to the appropriate federal statutes would not contravene state law.