Junction City Police Dept. v. $454,280 in U.S. Currency

1

NOT DESIGNATED FOR PUBLICATION

No. 118,231


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JUNCTION CITY POLICE DEPARTMENT,
Appellee,

v.

$454,280 IN U.S. CURRENCY, MORE OR LESS AND OTHER SEIZED PROPERTY,
Defendant,
(ROBERT HENDERSON),
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed October 12,
2018. Reversed and remanded with directions.

Jonathan F. Andres, of Jonathan F. Andres, P.C., of St. Louis, Missouri, and Michael E. Francis,
of Topeka, for appellant.

Tony Cruz, assistant county attorney, for appellee.

Before GREEN, P.J., MCANANY and BRUNS, JJ.

PER CURIAM: Claimant Robert Henderson appeals the trial court's order to grant
the State's civil forfeiture action. Henderson was stopped for a traffic violation while
traveling on the Interstate 70 Highway. The State filed a civil forfeiture action against
$454,280 in U.S. currency, a vehicle, and a camper that was in Henderson's possession
when the traffic violation occurred.

2

On appeal, Henderson argues that the trial court erred in granting the State's
motion to strike his claim to the previously mentioned property. Henderson also argues
that the trial court erred in granting summary judgment in favor of the State because the
State moved for default judgment and because Henderson had standing to assert a claim
to the property. Last, Henderson argues that the Kansas forfeiture statutes
unconstitutionally hinder Henderson's constitutional right against self-incrimination.

After oral arguments in this matter, this court issued an order to show cause
concerning an additional issue that needed to be addressed to resolve this appeal.
Specifically, a key statute in this appeal, K.S.A. 2017 Supp. 60-4111, was amended by
the 2018 Legislature in H.B. 2459. The amendments became effective upon publishing
on July 1, 2018. See L. 2018, ch. 26, § 8. Both parties were directed to file a
supplemental brief addressing the question of whether the Legislature had intended the
2018 amendments to K.S.A. 60-4111 et seq. to operate prospectively or retroactively. See
State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016). The parties were ordered to
address whether the amendments were procedural or substantive.

For reasons stated later, we determine that the 2018 H.B. 2459 amendments to
K.S.A. 60-4111 et seq. are procedural in nature. Thus, the before-mentioned 2018
amendments to K.S.A. 60-4111 should be applied to Henderson's pending forfeiture case.
As a result, we reverse and remand with directions to apply the before-mentioned
amendments to Henderson's pending forfeiture claim.

On June 2, 2015, Henderson was stopped for a traffic violation by Officer Nick
Blake of the Junction City Police Department. Henderson was driving a Chevrolet
Silverado, hauling a slide-in camper. Blake and other officers discovered $454,280 in
U.S. currency, rubber-banded in large stacks while searching the camper. Henderson told
the officers that the money was sale proceeds from the sale of a condo that Henderson
owned. Henderson also told the officers that the money was an accumulation of 30 years
3

of hard work. Officer Blake and another officer also found what they believed was
marijuana residue in the compartment where the money was located. In addition, the
officers found potential notes indicating the sale of marijuana. Moreover, the officers
found a calendar with harvest and watering dates, a laptop computer, four cell phones,
and other documents. Police took Henderson's vehicle to the Geary County Sheriff's
warehouse and searched it again. Officer Blake's K-9 partner detected the odor of
marijuana on the money but not on or in the camper itself. After running the seized
money through the police department's money counter, the money left trace amounts of
marijuana residue in the area where the money comes to rest after the machine counted it.

The State served Henderson with a notice of pending forfeiture on June 10, 2015.
Henderson filed a petition for recognition of exemption and a certified claim for property
seized on July 13, 2015. Henderson's petition stated:

"Claimant, Robert E. Henderson, concerning the nature and extent of his interest in this
property, reserves and preserves his Fifth Amendment privilege, per the United States
and Kansas Constitutions, and with respect to all statutory requirements as may be set
forth hereafter, within this response pursuant to K.S.A. 60-4110 and K.S.A. 60-4111,
pending the resolution of any criminal charges."

Henderson also invoked his Fifth Amendment privilege to the United States Constitution
as it related to the date, identity of the transferor, and description of the circumstances
and the acquisition of the property. Henderson cited Divine v. Groshong, 235 Kan. 127,
679 P.2d 700 (1984), and argued that his constitutional rights were paramount to the
underlying forfeiture claim. Henderson also argued generally that an exemption from
forfeiture applied and that the property was not subject to forfeiture. Henderson also
asserted that the seized property was not proceeds of an illegal drug sale and that the trial
court lacked jurisdiction.

4

The State filed a petition for forfeiture in rem on August 4, 2015. In its petition,
the State asserted that Henderson had failed to comply with the provisions of K.S.A. 60-
4111, in part, by failing to establish that the seized property was exempt. The State also
argued that Henderson had failed to overcome the rebuttable presumption that the
currency seized was forfeitable because it was found near a controlled substance. The
State did, nevertheless, state that "[o]nly one claim has been [submitted]: Robert
Henderson who claimed all of the above-captioned property. In response to such claim,
the State files this Petition."

Oregon Community Credit Union (OCCU) moved to intervene and answered the
State's petition for forfeiture in rem on August 28, 2015. In its answer and attached
affidavit, OCCU claimed that Henderson was the owner of the camper and that OCCU
acquired its security interest in the camper on or about August 29, 2014.

The State filed an amended petition for in rem forfeiture on September 18, 2015.
In it, the State repeated that "[o]nly one claim has been [submitted]: Robert Henderson
who claimed all of the above-captioned property. In response to such claim, the State
files this Petition." The petition also disclosed that "First Tech Federal Credit Union
(FTFCU) e-mailed a copy of the title and the contract for the 2013 Chevrolet
Silverado . . . and [OCCU] filed a claim on the 2015 Lance Camper." The State requested
that the trial court forfeit the defendant property to the State if Henderson failed "to
establish that a substantial portion of his alleged interest in the defendant property is
exempt from forfeiture."

Henderson attended a probable cause hearing for his related criminal case on May
3, 2016. Henderson answered the State's amended petition on May 17, 2016. He again
invoked his Fifth Amendment privilege and argued that the property was not proceeds of
an illegal drug sale. Henderson also argued that he was not responsible for any trace
amount of drugs found on the money. Henderson requested that the trial court "order the
5

defendant property returned to Claimant. In the alternative, Claimant requests this Court
hold in abeyance any decision as to the disposition of this matter through the pendency of
the parallel criminal proceeding." (Emphasis added.)

Sometime after Henderson filed his answer, the State sent Henderson its first set of
interrogatories. Henderson filed an objection to the State's interrogatories on September
9, 2016. In it, Henderson requested a protective order pending disposition of the related
criminal case.

The matter was delayed, in part, due to Henderson's counsel's illness. Henderson
finally discharged William Rork as his counsel and hired Jonathan F. Andres and Michael
Francis to replace him as his counsel. Rork died after battling a lengthy illness "[o]n or
about May 31, 2017."

In April 2017, the State moved to strike Henderson's claim and answer and moved
for default judgment. In its motion, the State argued that Henderson had failed to answer
its amended petition within the 21-day deadline under K.S.A. 60-4113 and failed to rebut
the presumption of forfeiture or make any proper claims.

On June 16, 2017, Henderson filed a memorandum in opposition to the State's
motion to strike and for default judgment. In his memorandum, Henderson again argued
that his Fifth Amendment rights took precedence over the statutory requirements of
K.S.A. 60-4111 and K.S.A. 60-4113. Henderson also argued that his failure to file within
the 21-day requirement was not grounds for striking his answer or for entering default
judgment. Henderson also claimed that his late attorney, Rork, entered into an agreement
with the State that he would not file an answer until after the probable cause hearing in
Henderson's related criminal case. Henderson also asserted that he did not refuse to
comply with discovery because he filed an objection to the State's interrogatories.

6

After considering Henderson's and the State's briefs and hearing oral arguments,
the trial court granted the State's motion. In a memorandum decision, the trial court held
that while Henderson had a right to invoke his Fifth Amendment right, he, nevertheless,
failed to claim ownership of the forfeited property and failed to comply with K.S.A. 60-
4111 et seq. For these reasons, the trial court found that Henderson lacked standing to
make a claim to the property. The trial court also held that Henderson's answer was
untimely and was, therefore, stricken. Finally, the trial court held "not only is the plaintiff
granted judgment on their motion to strike the claim but also on their motion for
summary judgment." (Emphasis added.)

Do the 2018 amendments to K.S.A. 60-4111 et seq. apply retroactively?

The question of whether the Legislature intended the 2018 amendments to K.S.A.
60-4111 to operate retroactively presents an issue of first impression for this court.

Henderson's claim was filed on July 13, 2015, and his answer to the State's
amended petition was filed on May 17, 2016. The trial court made its decision on June
30, 2017. Consequently, the amendments made to K.S.A. 60-4111 do not apply to
Henderson unless they apply retroactively.

"In general, 'a statute operates prospectively unless its language clearly indicates
that the legislature intended it to operate retroactively.'" Norris v. Kansas Employment
Security Bd. of Review, 303 Kan. 834, 841, 367 P.3d 1252 (2016). "'An exception to this
rule has been employed when the statutory change is merely procedural or remedial in
nature and does not prejudicially affect the substantive rights of the parties.'" Hayes v.
State, 307 Kan. 9, 14, 404 P.3d 676 (2017) (quoting State v. Bernhardt, 304 Kan. 460,
479, 372 P.3d 1161 [2016]). "'Procedural laws are those that concern "the manner and
order of conducting suits—in other words, the mode of proceeding to enforce legal
rights." Substantive laws establish the "rights and duties of parties."' [Citations omitted.]"
7

Knoll v. Olathe School District No. 233, 54 Kan. App. 2d 335, 340, 398 P.3d 223, rev.
granted 306 Kan. 1319 (2017) (quoting Rios v. Board of Public Utilities of Kansas City,
256 Kan. 184, 191, 883 P.2d 1177 [1994]).

The 2018 amendments to K.S.A. 60-4111 are listed as follows:

"(a) Only 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. The claim shall be mailed to the
seizing agency and to the plaintiff's attorney by certified mail, return receipt requested,
within 30 60 days after the effective date of notice of pending forfeiture. No extension of
time for the filing of a claim shall be granted except for good cause shown.
"(b) The claim and all supporting documents shall be in affidavit form, signed by the
claimant under oath, an sworn to by the affiant before one who has authority to
administer the oath, under penalty of perjury, K.S.A. 2017 Supp. 21-5903, and
amendments thereto, or making a false writing, K.S.A. 2017 Supp. 21-5824, and
amendments thereto, and shall set forth all of the following:
(1) The caption of the proceedings and identifying number, if any, as set forth on the
notice of pending forfeiture or complaint, the name of the claimant, and the name of the
plaintiff's attorney who authorized the notice of pending forfeiture or complaint.;
(2) the address where the claimant will accept mail.;
(3) the nature and extent of the claimant's interest in the property.; and
(4) The date, the identity of the transferor, and a detailed description of the circumstances
of the claimant's acquisition of the when and how the claimant obtained an interest in the
property.
(5) The specific provision of this act relied on in asserting that the property is not subject
to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.
"(c) Substantial compliance with subsection (b) shall be deemed sufficient.
"(d) It is permissible to assert the right against self-incrimination in a claim. If a claimant
asserts the right, the court, in the court's discretion, may draw an adverse inference from
the assertion against the claimant. The adverse inference shall not, by itself, be the basis
of a judgment against the claimant." L. 2018, ch. 26, § 8 (H.B. 2459).
8


In summary, the amendments extend the time that an owner can make a claim
under the Kansas Standard Asset Seizure Forfeiture Act (SASFA) and assert that the
property is not subject to forfeiture. The amendments further remove the requirement that
all essential facts supporting each assertion must be stated and what specific relief is
sought. Last, the amendments specify that substantial compliance with K.S.A. 60-4111 or
K.S.A. 60-4113 is sufficient and allow a claimant to assert their right against self-
incrimination. H.B. 2459 (2018).

In Henderson's supplemental brief, he maintains that the amendments to SASFA
are procedural and remedial. For example, in his brief, he states the following about H.B.
2459:

• "Amends the statute governing the seizure of property to clarify that the county or
district attorney has 14 days to accept or decline a written request for forfeiture from a
local or state agency, K.S.A. 60-4107(h);
• "Amends the time provided for an owner of or interested holder in the property to file a
claim or a petition for recognition of exemption from 30 days to 60 days, and the bill
states that such claims or petitions must 'substantially comply' with the requirements for
claims, K.S.A. 60-4110(a)(2);
• "Removes requirements that the claim or answer set forth the date, identity of the
transferor, and a detailed description of [sic] the circumstances of the claimant's
acquisition of an interest in the property; the specific provision of SASFA relied on in
asserting the property is not subject to forfeiture; all essential facts supporting each
assertion; and the specific relief sought; and adds a requirement that the claim or answer
include a detailed description of when and how the claimant obtained an interest in the
property, K.S.A. 60-4111(b), K.S.A. 60-4113(d);
• "Specific substantial compliance with the claim or answer requirements shall be deemed
sufficient and add a provision allowing the right against self-incrimination to be asserted
in a claim or answer; if the right is asserted, the court may, at its discretion, draw an
adverse inference from the assertion against the claimant, but the adverse inference may
9

not, by itself, be the basis of a judgment against the claimant, K.S.A. 60-4111(c), K.S.A.
60-4113(e), (f); [and]
• "Amends the section governing claims by removing a prohibition against granting an
extension of time to file a claim except for good cause, K.S.A. 60-4111(a)."

Thus, Henderson argues that the 2018 amendments to K.S.A. 60-4111 are procedural and
remedial in nature.

On the other hand, the State argues that the 2018 amendments to K.S.A. 60-4111
changed the burden of proof for the claimant "from the previous requirement of strict
compliance to substantial compliance." The State further argues that the "change
substantially affects the rights of both the claimant and the plaintiff." Next, the State
maintains that "[t]he retroactive application of the 2018 amendments to K.S.A. 60-4111
would substantially prejudice the rights of the plaintiff, as the claimant would be able to
circumvent the pre-July 1, 2018 strict compliance requirement, in effect at the time the
litigation commenced."

As stated earlier, a statute operates prospectively unless (1) the statutory language
clearly indicates the Legislature intended the statute to operate retrospectively, or (2) the
change is procedural or remedial in nature. Norris, 303 Kan. at 841. Still, "even
procedural rules cannot be applied retroactively if they eradicate a vested right." White v.
State, 308 Kan. 491, 499, 421 P.3d 718 (2018) (citing Perry v. State, No. 115,073, 2017
WL 462659, at *3 [Kan. App. 2017] [unpublished opinion], rev. granted 306 Kan. 1319
[2017]).

In its supplemental brief, the State in essence argues that it had a vested or
substantive right to hold Henderson to the higher burden of strict compliance rather than
the substantial compliance requirement under the 2018 amendments to K.S.A. 60-4111.
The State does not cite any authority to support this argument directly although it cites
10

Junction City Police Department v. $30,958 in U.S. Currency, No. 109,096, 2014 WL
1096719 (2014). In that case, this court held that the K.S.A. 60-4111 requirements were
mandatory and, therefore, required strict compliance.

In White, our Supreme Court found that "movants had a vested right to argue the
Vontress test, including the second factor and any other factor that might establish
manifest injustice." 308 Kan. at 502. Thus, the amendments made to K.S.A. 60-1507
could not be applied retroactively because it would impede on this vested right by
removing a defendant's ability to argue the second Vontress factor. Our Supreme Court
also supported its holding by stating that "[t]he legislative history clearly reflects the
Legislature intended to change the substance of the law established by Vontress. See
Hayes, 307 Kan. at 14." 308 Kan. at 503. Arguably, the Legislature's intent was apparent
due to the timing of the amendments made to K.S.A. 60-1507 and the obvious removal of
the second Vontress factor.

Returning to the State's argument that it had a vested or substantive right to hold
Henderson to the higher burden of strict compliance, Kansas courts generally consider
three factors when determining if the Legislature has created a vested right: "'(1) the
nature of the rights at stake (e.g., procedural, substantive, remedial), (2) how the rights
were affected (e.g., were the rights partially or completely abolished by the legislation;
was any substitute remedy provided), and (3) the nature and strength of the public interest
furthered by the legislation.'" Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan.
446, 460, 264 P.3d 102 (2011) (quoting Resolution Trust Corp. v. Fleischer, 257 Kan.
360, 369, 892 P.2d 497 [1995]). Moreover, in applying these factors, "[t]he first factor
(the nature of the right) must be balanced against the others, including how the right was
affected, whether a substitute remedy was provided, and the public interest furthered by
the legislation." Brennan, 293 Kan. at 462.

11

As to the first factor, the 2018 amendments to K.S.A. 60-4111 are either
procedural or remedial because they provided a means for individuals to make a claim to
property where the State is seeking a forfeiture of the property. In the Resolution Trust
Corp. decision, our Supreme Court explained procedural laws relate to the "'machinery
for carrying on the suit, including pleading, process, evidence, and practice' and 'the
mode or proceeding by which a legal right is enforced, that which regulates the formal
steps in an action.'" 257 Kan. at 366. Clearly, a provision setting out the procedure of
how to file a claim under K.S.A. 60-4111(b) and explaining that "substantial compliance"
under subsection (b) would "be deemed sufficient" would be procedural.

Moreover, our Supreme Court in Brennan described substantive laws as follows:
They "give or define the right, give the right or denounce the wrong, or create liability
against a defendant for a tort committed." 293 Kan. at 461. It is clear under this
description that the 2018 amendments to K.S.A. 60-4111 were not substantive.

Finally, in Brennan, our Supreme Court stated that remedial statutes "'reform or
extend existing rights, and having for their purpose the promotion of justice and the
advancement of public welfare and of important and beneficial public objects, such as the
protection of the health, morals, and safety of society, or of the public generally.'" 293
Kan. at 461. Here, the 2018 amendments to K.S.A. 60-4111 reform and extend existing
rights. The amendments specifically recognize claimants' ability to assert their Fifth
Amendment rights and to substantially comply, rather than strictly comply, with the
requirements for filing a claim and answer under the SASFA.

Moreover, the statutory amendments did not extinguish the previous statute's
requirement that individuals claiming property under SASFA must still substantially
comply with when filing a claim under K.S.A. 60-4111(b). Thus, the requirement for
claimants to file a proper claim under SASFA was not extinguished.

12

Applying these three before-mentioned factors in concert supports a finding that
the State did not have a vested right. First, the statutory amendments did not extinguish
the State's right to move for dismissal based on substantial compliance rather than strict
compliance under K.S.A. 60-4111(b). Second, the amendments do not create a new right
or eliminate an existing right. Third, the changes to K.S.A. 60-4111 clearly affect
procedures and remedies. The changes prescribe a method of enforcing a previously
existing right, i.e., the right that an owner of property in a K.S.A. 60-4111 proceeding
must make a claim to his or her property in an in rem proceeding.

Although a different statutory amendment was involved, this court reached a
similar decision in Degollado v. Kansas Dep't of Revenue, No. 100,092, 2009 WL
3082526 (Kan. App. 2009) (unpublished opinion). In that case, the trial court found that
Degollado had failed to strictly comply with the pleading requirements of the Kansas Act
for Judicial Review and Civil Enforcement of Agency Actions (KJRA), specifically
K.S.A. 77-614(b). From this, the trial court determined that it lacked subject matter
jurisdiction to consider Degollado's petition for review and dismissed his claim. 2009 WL
3082526, at *1. While the trial court was correct that Degollado was required to strictly
comply with K.S.A. 77-614, the Legislature amended K.S.A. 77-614 after Degollado
appealed from the trial court's decision. See 2009 WL 3082526, at *1. On appeal, this
court considered whether the 2009 amendments made to K.S.A. 77-614 could be applied
retroactively to Degollado's pending claim. Our Legislature amended K.S.A. 77-614 to
freely allow supplemental petitions: "(c) Failure to include some of the information listed
in subsection (b) in the initial petition does not deprive the reviewing court of jurisdiction
over the appeal. Leave to supplement the petition with omitted information required by
subsection (b) shall be freely given when justice so requires." L. 2009, ch. 109, § 26(c).
Ultimately, this court held that the amendments were procedural changes and could,
therefore, be applied to pending claims, including Degollado's. This court reversed the
trial court's decision with directions allowing Degollado to amend his petition. 2009 WL
3082526, at *3-5.
13


As a result, we reverse and remand to the trial court with directions to apply the
2018 amendments to SASFA to Henderson's pending claim to the before-mentioned
property.

On remand, the trial court will consider if Henderson's petition filed on July 13,
2015, substantially complied with the 2018 amendments to SASFA. Henderson's petition,
in relevant part, stated that he was making a "claim for denial of forfeiture of the above
captioned items." The above captioned items were listed as the following:

"$454,280.00 U.S. Currency, more or less;
One 2013 Chevrolet Silverado, VIN: 1GC1KXE86DF114240;
One 2015 Lance Camper, Serial #171445;
Suspected trace amounts of marijuana;
Drug Paraphernalia."

Henderson further alleged in his petition the following:

"1) Claimant can receive mail through the address of counsel, William K. Rork,
Rork Law Office, 1321 SW Topeka Blvd., Topeka, KS 66612-1816.
"2) The items seized are as captioned above, and Plaintiff's attorney is Tony
Cruz, Geary County Attorney, 801 N. Washington St., Suite A, Junction City, KS 66441.
"3) Claimant, Robert E. Henderson, concerning the nature and extent of his
interest in this property, reserves and preserves his Fifth Amendment privilege, per the
United States and Kansas Constitutions, and with respect to all statutory requirements as
may be set forth hereafter, within this response pursuant to K.S.A. 60-4110 and K.S.A.
60-4111, pending resolution of any criminal charges.
"4) Claimant, Robert E. Henderson, concerning the date, the identity of the
transferor, and a detailed description of the circumstances of the Claimant's acquisition of
the interest in the property, reserves and preserves this Fifth Amendment privilege, per
the United States and Kansas Constitutions, and with respect to all statutory requirements
14

as may be set forth hereafter, within this response pursuant to K.S.A. 60-4110 and K.S.A.
60-4111, pending resolution of any criminal charges.
"5) Claimant asserts exemption from forfeiture as expressed in K.S.A. 60-4106,
or any other provisions of K.S.A. 60-4101 et seq., and further alleges, said property is not
subject to forfeiture pursuant to either K.S.A. 60-4104, 60-4105, or any other applicable
provisions of K.S.A. 60-4101 et seq.
"6) Claimant denies any of this property constituted proceeds derived from the
sale, delivery, transportation, storage, and concealment of an illegal controlled substance
under K.S.A. 60-5706, or a violation of any other provision of the Uniform Controlled
Substances Act, K.S.A. 21-5701 et seq., giving rise to forfeiture under Kansas Standard
Asset Seizure and Forfeiture Act, K.S.A. 60-4104(b), and K.S.A. 60-5105(b)(2).
Claimant denies the presumption of forfeitability exists pursuant to K.S.A. 60-4112(j)
and (k)."

The trial court later concluded that Henderson had "failed to comply with K.S.A. 60-
4111(4), (5) and (6)." Because of this failure to file a proper claim, the trial court
concluded that this deprived Henderson of standing to file an answer and to litigate his
claim in a later in rem proceeding.

In acknowledging Henderson's ability to assert his Fifth Amendment right against
self-incrimination in his petition or claim, the trial court posed this question in its
memorandum decision: "[I]s he [Henderson] entitled to refuse to comply with the law
regarding Claims in forfeiture cases by failure to follow the statute[?] The answer is
'YES' he may refuse to do so, but at the peril of losing the Civil Forfeiture case."

As shown earlier, the 2018 amendments to SASFA no longer require claimants'
claim or answer to set forth the date, the identity of the transferor, and the circumstances
of the claimant's acquisition of an interest in the property. The amendments also no
longer require a statement about the specific provision SASFA relied on in asserting the
property is not subject to forfeiture; about all essential facts supporting each assertion;
and about the specific relief sought. Moreover, the amendments add a requirement that
15

the claim or answer include a detailed description of when and how the claimant obtained
an interest in the property. See 2018 amendment to K.S.A. 60-4111(b) and K.S.A. 60-
4113(d); L. 2018, ch. 26, §§ 8, 10.

In addition, the amendments specifically state that substantial compliance with the
claim or the answer requirements shall be deemed sufficient.

Returning the ability of claimants to assert their right against self-incrimination in
their claim, the amendments to SASFA add a provision allowing the right against self-
incrimination to be asserted in a claim or an answer. Moreover, if the right is asserted, as
in this case, the court may, at its discretion, draw an adverse inference from the assertion
against the claimant, as the court did in Henderson's case. But the adverse inference may
not, by itself, be the basis of a judgment against the claimant. See 2018 amendment to
K.S.A. 60-4111(c) and (d); K.S.A. 60-4113(e) and (f); L. 2018, ch. 26, §§ 8, 10.

The trial court is directed to reconsider its holding concerning Henderson's
assertion of his right against self-incrimination in his claim under the 2018 amendments
to SASFA, keeping in mind that an adverse inference may not, by itself, be the basis of
judgment against Henderson's claim.

Summary Judgment

We conclude that the trial court erred when it granted summary judgment in favor
of the State, especially when the State never moved for summary judgment and the trial
court never afforded the parties an opportunity to follow Supreme Court Rule 141(a)
(2018 Kan. S. Ct. R. 205) and K.S.A. 2017 Supp. 60-256.

If the State had moved to dismiss under K.S.A. 60-212(b)(6) and matters outside
the pleadings were presented, the trial court could have treated the motion as one for
16

summary judgment if it had afforded the parties an opportunity to follow Rule 141 and
K.S.A. 2017 Supp. 60-256. See Davidson v. Denning, 21 Kan. App. 2d 225, 229-30, 897
P.2d 1043 (1995). But the trial court failed to follow this procedure. As a result, the trial
court's granting of summary judgment in this matter was improper.

Standing

Standing is a jurisdictional question in which courts determine whether a party has
alleged a sufficient stake in the controversy to warrant invocation of jurisdiction and to
justify the exercise of the court's remedial powers on that party's behalf. Board of
Johnson County Comm'rs v. Jordan, 303 Kan. 844, 854, 370 P.3d 1170 (2016). Thus, the
question of standing focuses on the party and whether the party whose standing is
challenged is the proper party to ask or to defend against an adjudication of a particular
issue.

Here, the trial court concluded that Henderson lacked standing to challenge civil
forfeiture action for the following reasons:

"Mr. Henderson has failed to comply with K.S.A. 60-4111(4), (5) and (6). And
he has failed to provide any documentation that he qualifies as an 'owner' under K.S.A.
60-4102(j). Alleging one is the registered owner of a vehicle does not bestow upon them
standing to challenge a civil forfeiture . . . . Failure to file a proper claim deprives a
claimant of standing to file an answer and litigate his or her claim in the subsequent in
rem forfeiture proceeding."

Based on the facts of this case as they now stand, on Henderson's petition
asserting that the civil forfeiture of the previously described property should be
denied, and on the 2018 amendments to SASFA, Henderson is the proper party to
defend against this civil forfeiture action. Moreover under federal and Kansas law,
Henderson has standing at this stage in the proceedings and an order of dismissal
17

cannot be predicated on a lack of standing at this stage of the civil forfeiture
action.

Thus, we direct the trial court to reconsider this civil forfeiture action under
the scheme set forth under SASFA for adjudicating a civil forfeiture action,
applying the 2018 amendments to SASFA.

Reversed and remanded with directions.