Maricopa County Attorney Bill Montgomery is asking Gov. Doug Ducey to veto legislation to make it more difficult for him and other prosecutors to seize property unless changes are made in the measure.
And the governor said he is listening.
The governor, for his part, said he wants to see some sort of legislation.
“I think this is an area of law in need of reform,” Ducey said.
But Ducey said he is getting lobbied by prosecutors to quash the measure if it arrives on his desk in its current form. And he would not say whether he is willing to sign this legislation which was approved unanimously by both the House and Senate.
“I’ve heard from people I respect on both sides who I think are making very significant points,” the governor said.
Montgomery said on Tuesday he does not believe it is necessary to change the law so that a judge would have to find there is “clear and convincing evidence” that the cash or property a prosecutor wants to take is linked to a crime before it must be forfeited to the state. He said the entire controversy has been “generated by groups on the right who have also used it for fundraising.”
The county attorney said there’s nothing wrong with the current “preponderance of the evidence” standard, even though that is far easier to prove. Some proponents of the change said the higher standard is appropriate, especially as there is no requirement of prosecutors to actually charge anyone with a crime.
“That’s usually from very narrow minds who couldn’t understand that the entire focus of a process like this is on the property, not the person,” Montgomery said, with the laws designed to deprive criminals and their organizations of their assets versus locking someone up. He said that’s why the standard of proof is different.
“Some of these pretend conservative organizations usually understand the difference between criminal courts and civil courts,” he said.
Montgomery did not name names. But the legislation was supported by a broad spectrum of groups, ranging from the American Civil Liberties Union to the Free Enterprise Club, the Institute for Justice, the Goldwater Institute and Americans for Prosperity.
“But they’ve somehow forgotten it when it came to this issue,” he said.
Despite those complaints, Montgomery insisted the real reason he wants a veto is because HB 2477 would give each county’s board of supervisors the power to approve — or veto — how the proceeds are spent. And worse yet from his perspective is that the supervisors could hire another attorney to advise them on how the elected county attorney should be spending the cash.
Rep. Eddie Farnsworth, R-Gilbert, who crafted the legislation, sniffed at Montgomery’s objections to the oversight. He said that’s the purpose of the elected supervisors who control the county budget.
And he rejected Montgomery’s contention that there’s no reason for the board to be able to hire outside counsel for advice.
“If you’re going to have a board that has oversight, it makes absolutely no sense that the person they have oversight of gets to choose who’s going to give them the legal advice to decide if they’re engaging in lawful practices,” Farnsworth said.
Montgomery also complained about new reporting requirements in the statute, detailing how prosecutors — and the police agencies that work with them — are spending their money. He said the kind of detail that would have to be produced in formal reports “really reflects the incompetence of some of these groups in being able to file a proper public records request.”
“All that information is available in reports that have to be filed now,” Montgomery said. And he said while a new report won’t be a problem for his agency, that isn’t the case for smaller, rural counties.
“They don’t have the people who can be working on this 24/7,” he said. “It does represent a serious resource impact.”
And Montgomery said something more sinister may be at work here.
“If it’s the goal of these special interest groups to deny the ability of rural counties to use asset forfeiture in the first place, well, then, they’re going to be doubly successful,” he said.
Farnsworth said that argument about resources holds no water, saying prosecutors can use forfeiture proceeds for such reports. Nor was he persuaded about the problems in rural areas.
“It’s always more difficult for small counties to do everything the legislature asks,” he said.
“Under that argument, we wouldn’t do anything.”
For example, making certain things a crime solely because the smaller counties don’t have the same budget as larger counties to house inmates, Farnsworth said.
“If it turns out to be overly burdensome, then we’ll have to figure something out,” he said.