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Utah legislature mounts offensive on property rights

On March 23, 2013, in states, by Scott Alexander Meiner

Utah looks to restrict the market of attorneys willing to forfeiture cases on the lure of Utah’s cost-shifting provision.

Utah’s HB0384 would, among other things, limit cost-shifting awards to 20% of the value of the property:
769          Section 21. Section 24-4-110 is enacted to read:
770          24-4-110. Attorney fees and costs.
771          (1) In any forfeiture proceeding under this chapter, the court may award a prevailing


772      party reasonable:
773          (a) legal costs; and
774          (b) attorney fees.
775          (2) The legal costs and attorney fees awarded by the court to the prevailing party may
776      not exceed 20% of the value of the property.
777          (3) A party that prevails only in part is entitled to recover reasonable legal costs and
778      attorney fees only on those issues on which the party prevailed.

That effectively removes the incentive for forfeiture attorneys to provide counsel for fee-shifting awards alone unless the value of the property is immense–which predicts an escalation in uncontested forfeiture actions and in claims rejected for failing to adhere to procedural mandates.

Moreover, it should be stressed that such awards can only occur where the government takes someone’s stuff and the claimant substantially prevails. That is, where the government could not establish, even under laws favoring the government, that the government should be entitled to acquire the property. In such an environment, it simply makes no sense to limit recovery of costs.



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