CONCURRING:
I concur with the majority opinion. I write separately to express my concern regarding .the wording of the forfeiture statute, KRS 218A. 410.
After the Commonwealth makes a prima facie case of the “slight evidence of traceability” of the property sought to be forfeited, it falls upon the claimant to rebut this presumption by clear and convincing evidence. • There aré several concerns with forfeiture laws; chief among those concerns are that they require individuals to prove their innocence and that the very agencies charged with enforcing the law have a financial stake in forfeiture efforts.
As Justice Charles Leibson wrote in his dissent in Osborne v. Commonwealth, 889 S.W.2d 281, 285 (Ky.1992):
Respectfully, I dissent as to Part I affirming the order of forfeiture as to the .motor vehicle. I dissent as to both Parts I and II in the reasoning of the Majority Opinion addressing the effect of the presumptions stated in the forfei-. ture statute.
Consistent with the Kentucky Constitution, the General Assembly has the power to create law, but not to create facts. Here the forfeiture provisions of KRS *607218A.410 (j) and (h), under the pretext of presumptions, substitute law for facts. First, we address subparagraph (j). The General Assembly mandates that “currency found in close proximity to controlled substances ... are presumed to be forfeitable.” Such a presumption would not be offensive when judicially construed, as the Majority does, to mean “that any property subject to forfeiture under (j) must be traceable to the exchange or intended violation,” if the law stopped here. .
But the statute then makes the presumption a conclusive fact rather than a mere rational presumption by posing an insurmountable, and therefore constitutionally impermissible, burden on. the victim of the forfeiture, stating:
“The burden of proof shall be upon claimants of personal property to rebut this presumption by clear and convincing evidence.”
Thus the victim of the forfeiture is required to prove a negative, not only to the satisfaction of the trier of fact, but “by clear and convincing evidence.” Whether the property is traceable to the drug transaction may well 'be inferable from the totality of the circumstances, but the General Assembly has no power to make the mere fact of proximity,standing alone, conclusive proof that the money is drug-related unless the victim of the forfeiture can persuade the trier of fact to the contrary by “clear and convincing evidence.”
In sum, the statute can create a prima facie case, but the burden of persuasion remains with the Commonwealth. We should adopt a substantial connection test, meaning that if the Commonwealth fails to prove to the satisfaction of the trier of fact that there is a substantial connection between the property seized and a drug offense, forfeiture is not permissible. A decent respect for. the constitutional rights of persons suspected of complicity in drug violations, and punished by forfeiture, requires no less.