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Was my right to Due Process violated?

Littleton, CO |

My 14 year old, multi million dollar business was seized by the State of Colorado in Sept, 2009 for short paying agreed upon State tax payments (past due) for each of the 3 months prior to the seizure (pristine payment history between 1995 & 2008). The Dept. of Rev. officer only showed me the warrant but refused to provide a copy. Should I have been given the opportunity of a hearing before seizure? I paid the full $32,000.00 5 days later and was given the property back but closed the doors 6 weeks later due to the financial hit of the lump sum payment and damage to reputation within the community & client base. At the exact moment of the seizure, a firm we hired to mitigate the short payment issue was speaking with the officers supervisor working out the details (unaware of the seizure).

When the seizure was taking place, we called the firm working with the State and found out that the firm was speaking to the Supervisor at that moment and said he was under the impression that there was an agreement underway but to no avail. Anyway... should there have been some kind of due process in this case and if so, is there some recourse to be considered this far down the road?

Attorney Answers 2

Posted

A process was followed to obtain the warrant. You would have to show that additional process was due. It is not clear from your description that there was any additional process due to you. In any event, after more than three years, time has run on your ability to redress any issues. Civil rights complaints have a 2 year clock.

You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

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3 comments

Asker

Posted

The premise is that a criminal offense has occurred by that of the State of Colorado and/or its agents; kidnapping (which has no statute of limitations). The business was a corporation. Under Federal law, a corporation is a “person” (artificial person) who enjoys the same rights under the law as a “natural person” (not similar rights but “the same”). In this case, the Right to Due Process would come into question; “…that no person shall "be deprived of life, liberty, or property, without due process of law.". Due process requires (under the law) that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. In this case, there was no hearing before a Magistrate and therefore no opportunity to be heard. If due process was violated as a result of the seizure of property without a hearing, the State and its agents acted unlawfully and therefore would not have an affirmative defense and would be subject to criminal law (kidnapping). Kidnapping results when “(1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: … imprisons or forcibly secretes any person.”. In this case, the Corporation (a person with civil rights) was imprisoned (seized). Additionally, a charge of kidnapping sets forth the following requirements: Essential elements of the crime of kidnapping are: (1) Wilfulness or intent to do the act; (2) the act must be done without lawful authority; (3) there must be a seizing, or imprisoning; and (4) the act must be done against the victim's will, by means of force or otherwise. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973). Without creating a novel, I think the essential establishments are: 1. Is a Corporation a person (under the law) which is afforded the same civil rights as a natural person (in this case, Due Process)? I believe so. 2. Was Due Process violated as to the lack of being heard before a Magistrate? I believe so. 3. If Due Process was violated, did the State/its agents act unlawfully? I believe so. 4. If the State/its agents acted unlawfully, do they lack an affirmative defense and are now exposed to criminal action? I believe so. 5. Could the State/its agents be found criminally liable for its/their action resulting in a civil action opportunity? I believe so.

Stephen Clark Harkess

Stephen Clark Harkess

Posted

Actually, there are limitations periods for all civil claims. There is no civil action for kidnapping, but to the extent you can develop one it would have a 2 year limitation period. The cases that have no limitations (as you note for kidnapping) are criminal statutes. To pursue a criminal case you have to be a U.S. Attorney or District Attorney. In this case, the kidnapping was not interstate, so the U.S. Attoreny probably lacks power. This leaves you with the District Attorney. You can certainly file a police report and if you can convince a District Attorney to charge the State of Colorado and punish them for kidnapping your business, then by all means go ahead. Maybe they can even seek restitution for you as part of the sentence when the State is convicted (but don't hold your breath). Contrary to your closing statement, being found criminally responsible does not "result in a civil action opportunity". Even if you convince a District Attorney to file criminal charges, the limitation periods for civil and criminal cases still run independently and yours still ran out over a year ago. Sorry.

Asker

Posted

Yes, your points are understood and go without saying. I was involved in a civil law suit in 2001 where a customer owed me $300K. My Attorney advised me to take their offer of $.18/dollar. After I researched not just the civil law but also criminal law, I found that my customer broke the criminal trust fund statute. After I met with my customer and his attorney and brought this to their attention, I was given an offer of $.98/dollar, court costs, interest and 3/4 of my attorney's fees which I accepted. This was accomplished from the outset with a carrot & stick tactic (or better put a stick & carrot) although my Attorney thought it was a stretch when I presented it to him and he was shocked with the result. No intent (necessarily) to take it to a D.A., just to have the State consider the possible consequences if it were to go that far. I've never been sued but I have, unfortunately had to sue quite a few people and have never lost. I won't belabor the discussion and I do appreciate your feedback. Have a Merry Christmas and a Happy new year! Thanks again!

Posted

I agree with Mr. Harkess. The issue at this point is not due process, but the statute of limitations.

If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education purposes only. It neither creates an attorney-client relationship nor provides legal guidance or advice. The answer is based on the limited information provided and the answer might be different had additional information been provided. You should consult an attorney.

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9 comments

Asker

Posted

Let’s now look at how I feel due process fits into all of this: The premise is that a criminal offense has occurred by that of the State of Colorado and/or its agents; kidnapping (which has no statute of limitations). The business was a corporation. Under Federal law, a corporation is a “person” (artificial person) who enjoys the same rights under the law as a “natural person” (not similar rights but “the same”). In this case, the Right to Due Process would come into question; “…that no person shall "be deprived of life, liberty, or property, without due process of law.". Due process requires (under the law) that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. In this case, there was no hearing before a Magistrate and therefore no opportunity to be heard. If due process was violated as a result of the seizure of property without a hearing, the State and its agents acted unlawfully and therefore would not have an affirmative defense and would be subject to criminal law (kidnapping). Additionally, I believe there was malice on the part of the seizing officer as we went over her head previously to stop her intended actions which she was demonstrably upset over. Kidnapping results when “(1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: … imprisons or forcibly secretes any person.”. In this case, the Corporation (a person with civil rights) was imprisoned (seized). Additionally, a charge of kidnapping sets forth the following requirements: Essential elements of the crime of kidnapping are: (1) Wilfulness or intent to do the act; (2) the act must be done without lawful authority; (3) there must be a seizing, or imprisoning; and (4) the act must be done against the victim's will, by means of force or otherwise. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973). Without creating a novel, I think the essential establishments are: 1. Is a Corporation a person (under the law) who is afforded the same civil rights as a natural person (in this case, Due Process)? I believe so. 2. Was Due Process violated as to the lack of being afforded the opportunity to be heard before a Magistrate? I believe so. 3. If Due Process was violated, did the State/its agents act unlawfully? I believe so. 4. If the State/its agents acted unlawfully, do they lack an affirmative defense and are now exposed to criminal action? I believe so. 5. Could the State/its agents be found criminally liable for its/their action? I believe so. If a strong case could be made for a D.A. to file charges, the initial intent would be to lay it out before the actors for their consideration (prior to taking it to the D.A.). If all the ducks are in a row and laid before the actors, they would then be faced with weighing the merits of the potential criminal claim and the odds that if a criminal complaint were to be made what then would be their odds of prevailing in the subsequent criminal proceedings. If they believed there was an unacceptable chance not prevailing in a criminal case, would it stand to reason that they may make an unsolicited offer to right their wrong?

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

No, the state would not make an unsolicited offer in the facts you provided. No reason for them too. SOL has run.

Asker

Posted

As stated; there is no statute of limitations on kidnapping so I'm not sure what "SOL has run" is referring to. It's funny how civil Attorneys feedback have all been the same as yours but criminal Attorneys feed back has been 100% inline with my thinking (lol). I'm sure you're very good at what you do. Thanks for your feedback.

Asker

Posted

... by the way; when considering applicable constitutional law and potential criminal liability, I'm sure they would be aware of 42 USC 1983. I believe this would open a new door for redress upon a conviction.

Michael T Millar

Michael T Millar

Posted

Most attorneys would refer you to the SOL for civil actions because the criminal charge of kidnapping is not applicable to the government's seizure of a business entity or the owner's non-payment of taxes.

Asker

Posted

I'm not sure how you've arrived at the conclusion that a corporation (an artificial person) isn't granted the same rights as a natural person (due process - the right to be heard). The State doesn't have the Constitutional authority to seize or imprison a person (natural or artificial) without due process, with very narrow exceptions (which wouldn't apply here).

Michael T Millar

Michael T Millar

Posted

You are assuming that the law treats natural persons and corporations the same in all respects - that assumption is wrong. Seizing property for non-payment of taxes can never be kidnapping.

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

Best of luck to you.

Asker

Posted

There's no assumption here, I'm only going off of how the law reads and there's no distinction made by the law for the kidnapping of a natural person or an artificial person (a corporation). It's not just that they just seized a "property" here, but in the process, they also seized a "person" (an artificial person) which has the same right to due process and protection afforded a natural person (as well as unlawful search & seizure). The law does make distinctions on unrelated aspects of how a natural person vs. an artificial person is viewed or treated under the law (emotional intent: malice, etc..). If you look at the legal definition of "person", you'll see there's no distinction made between natural or artificial that would support your statement "seizing... can never be kidnapping" when the property seized here was the entirety of the corporation, not just a part of the corporation. Therefore the entire person was seized (imprisoned). I encourage you think outside your box. It doesn't appear your argument is backed by the law as you site nothing to support it. If you look at the law, I think you'll be surprised at what you don't find to support your opinion.

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