Bill Text: MI HB5286 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Controlled substances; forfeiture of property; procedure for demolition of certain seized properties; establish, and allow property to be donated to certain nonprofit and governmental organizations. Amends secs. 7523, 7524 & 7524a of 1978 PA 368 (MCL 333.7523 et seq.).

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2009-09-09 - Printed Bill Filed 09/03/2009 [HB5286 Detail]

Download: Michigan-2009-HB5286-Introduced.html

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HOUSE BILL No. 5286

 

September 2, 2009, Introduced by Reps. Knollenberg and Walsh and referred to the Committee on Judiciary.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 7523, 7524, and 7524a (MCL 333.7523, 333.7524,

 

and 333.7524a), section 7523 as amended by 2006 PA 130, section

 

7524 as amended by 2006 PA 558, and section 7524a as amended by

 

1994 PA 8.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 7523. (1) If property is seized pursuant to under section

 

7522, forfeiture proceedings shall be instituted promptly. If the

 

property is seized without process as provided under section 7522,

 

and the total value of the property seized does not exceed

 

$50,000.00, the following procedure shall be used:

 

     (a) The local unit of government that seized the property or,

 

if the property was seized by the state, the state shall notify the

 

owner of the property that the property has been seized, and that

 

the local unit of government or, if applicable, the state intends

 

to forfeit and dispose of the property by delivering a written

 

notice to the owner of the property or by sending the notice to the

 

owner by certified mail. If the name and address of the owner are

 

not reasonably ascertainable, or delivery of the notice cannot be

 

reasonably accomplished, the notice shall be published in a

 

newspaper of general circulation in the county in which the

 

property was seized, for 10 successive publishing days. For

 

purposes of this subdivision, disposing of property includes

 

disposal under section 7524(3).

 

     (b) Unless all criminal proceedings involving or relating to

 

the property have been completed, the seizing agency shall

 

immediately notify the prosecuting attorney for the county in which

 

the property was seized or, if the attorney general is actively

 

handling a case involving or relating to the property, the attorney

 

general of the seizure of the property and the intention to forfeit

 

and dispose of the property.

 

     (c) Any person claiming an interest in property that is the

 

subject of a notice under subdivision (a) may, within 20 days after

 

receipt of the notice or of the date of the first publication of

 

the notice, file a written claim signed by the claimant with the

 

local unit of government or the state expressing his or her

 

interest in the property. Upon the filing of the claim and the

 

giving of a bond to the local unit of government or the state in

 

the amount of 10% of the value of the claimed property, but not

 

less than $250.00 or greater than $5,000.00, with sureties approved

 

by the local unit of government or the state containing the

 

condition that if the property is ordered forfeited by the court

 

the obligor shall pay all costs and expenses of the forfeiture

 

proceedings. The local unit of government or, if applicable, the

 

state shall transmit the claim and bond with a list and description

 

of the property seized to the attorney general, the prosecuting

 

attorney for the county, or the city or township attorney for the

 

local unit of government in which the seizure was made. The

 

attorney general, the prosecuting attorney, or the city or township

 

attorney shall promptly institute forfeiture proceedings after the

 

expiration of the 20-day period. However, unless all criminal

 

proceedings involving or relating to the property have been

 

completed, a city or township attorney shall not institute

 

forfeiture proceedings without the consent of the prosecuting

 

attorney or, if the attorney general is actively handling a case

 

involving or relating to the property, the attorney general.

 

     (d) If no claim is filed or bond given within the 20-day

 

period as described in subdivision (c), the local unit of

 

government or the state shall declare the property forfeited and

 

shall dispose of the property as provided under section 7524.

 

However, unless all criminal proceedings involving or relating to

 

the property have been completed, the local unit of government or

 

the state shall not dispose of the property under this subdivision

 

without the written consent of the prosecuting attorney or, if the

 

attorney general is actively handling a case involving or relating

 

to the property, the attorney general.

 

     (2) Property taken or detained under this article shall is not

 

be subject to an action to recover personal property, but is deemed

 

considered to be in the custody of the seizing agency subject only

 

to this section or an order and judgment of the court having

 

jurisdiction over the forfeiture proceedings. When property is

 

seized under this article, the seizing agency may do any of the

 

following:

 

     (a) Place the property under seal.

 

     (b) Remove the property to a place designated by the court.

 

     (c) Require the administrator to take custody of the property

 

and remove it to an appropriate location for disposition in

 

accordance with law.

 

     (d) Deposit money seized under this article into an interest-

 

bearing account in a financial institution. As used in this

 

subdivision, "financial institution" means a state or nationally

 

chartered bank or a state or federally chartered savings and loan

 

association, savings bank, or credit union whose deposits are

 

insured by an agency of the United States government and that

 

maintains a principal office or branch office located in this state

 

under the laws of this state or the United States.

 

     (3) Title to real property forfeited under this article shall

 

be determined by a court of competent jurisdiction. A forfeiture of

 

real property encumbered by a bona fide security interest is

 

subject to the interest of the secured party who neither had

 

knowledge of nor consented to the act or omission.

 

     (4) An attorney for a person who is charged with a crime

 

involving or related to the money seized under this article shall

 

be afforded a period of 60 days within which to examine that money.

 

This 60-day period shall begin begins to run after notice is given

 

under subsection (1)(a) but before the money is deposited into a

 

financial institution under subsection (2)(d). If the attorney

 

general, prosecuting attorney, or city or township attorney fails

 

to sustain his or her burden of proof in forfeiture proceedings

 

under this article, the court shall order the return of the money,

 

including any interest earned on money deposited into a financial

 

institution under subsection (2)(d).

 

     (5) The seizing agency may request expedited proceedings under

 

this section on grounds that a building or structure subject to

 

forfeiture under this act constitutes a health or safety hazard and

 

the seizing agency intends to demolish the building or structure

 

upon forfeiture. A request for expedited proceedings may be filed

 

at any time during the forfeiture proceedings but shall be filed

 

only with the approval of the county prosecuting attorney or the

 

state attorney general. If a request is filed under this section

 

for expedited proceedings, the court shall conduct and conclude the

 

forfeiture proceedings before all other cases not having priority

 

by statute. Each party having an ownership, possessory, or secured

 

interest in the building or structure shall be notified of the

 

expedited proceedings and shall be provided with an opportunity to

 

be heard regarding forfeiture. If the court orders property to be

 

forfeited under this section, the order may provide for immediate

 

demolition of the building or structure at the discretion of the

 

seizing agency subject only to a stay of proceedings pending an

 

appeal. If any real property is to be sold or transferred by the

 

seizing agency to another entity after forfeiture, the court may,

 

with the approval of the county prosecuting attorney or state

 

attorney general, also execute the necessary documents at the time

 

of forfeiture to complete that sale or transfer.

 

     Sec. 7524. (1) When property is forfeited under this article,

 

the local unit of government that seized the property may do any of

 

the following, or if the property is seized by or in the custody of

 

the state, the state may do any of the following, subject to

 

section 7523(1)(d):

 

     (a) Retain it for official use.

 

     (b) Sell that which is not required to be destroyed by law and

 

which is not harmful to the public. The proceeds and any money,

 

negotiable instruments, securities, or any other thing of value as

 

described in section 7521(1)(f) that are forfeited pursuant to

 

under this article shall be deposited with the treasurer of the

 

entity having budgetary authority over the seizing agency and

 

applied as follows:

 

     (i) For the payment of proper expenses of the proceedings for

 

forfeiture and sale, including expenses incurred during the seizure

 

process, maintenance of custody, advertising, and court costs,

 

except as otherwise provided in subsection (4) (6).

 

     (ii) The balance remaining after the payment of expenses shall

 

be distributed by the court having jurisdiction over the forfeiture

 

proceedings to the treasurer of the entity having budgetary

 

authority over the seizing agency. If more than 1 agency was

 

substantially involved in effecting the forfeiture, the court

 

having jurisdiction over the forfeiture proceeding shall equitably

 

distribute the money among the treasurers of the entities having

 

budgetary authority over the seizing agencies. A seizing agency may

 

direct that the funds or a portion of the funds it would otherwise

 

have received under this subsection be paid to nonprofit

 

organizations whose primary activity is to assist law enforcement

 

agencies with drug-related criminal investigations and obtaining

 

information for solving crimes. The money received by a seizing

 

agency under this subparagraph and all interest and other earnings

 

on money received by the seizing agency under this subparagraph

 

shall be used to enhance law enforcement efforts pertaining to this

 

article, as appropriated by the entity having budgetary authority

 

over the seizing agency. A distribution made under this

 

subparagraph shall serve as a supplement to, and not a replacement

 

for, the funds budgeted on January 1, 1991, for law enforcement

 

efforts pertaining to this article.

 

     (c) Require the administrator to take custody of the property

 

and remove it for disposition in accordance with law.

 

     (d) Forward it to the bureau for disposition.

 

     (e) If the property is real property, dispose of the property

 

under subsection (3).

 

     (2) Notwithstanding subsection (1), this state or local units

 

of government may donate lights for plant growth or scales

 

forfeited under this article to elementary or secondary schools or

 

institutions of higher education that request in writing to receive

 

those lights or scales pursuant to under this subsection, for

 

educational purposes. This state or local units of government shall

 

donate lights and scales pursuant to under this subsection to

 

elementary or secondary schools or institutions of higher education

 

in the order in which the written requests are received. This state

 

or local units of government may limit the number of lights and

 

scales available to each requestor.

 

     (3) If real property is forfeited under this part, the local

 

unit of government that seized the property may dispose of the

 

property by doing any of the following with the consent of the

 

county prosecuting attorney or the state attorney general:

 

     (a) Preserve the property for historic purposes.

 

     (b) Convert the property to a park or natural area.

 

     (c) Demolish the property.

 

     (d) Convey the property to this state, a local unit of

 

government of this state, or a nonprofit entity for any of the

 

following purposes:

 

     (i) Use as a facility in which to provide substance abuse

 

treatment and rehabilitation services.

 

     (ii) Use as a facility in which to provide drug resistance

 

education or crime prevention education.

 

     (iii) Use as a facility in which to provide job training skills

 

to members of the community.

 

     (iv) Use as a facility to provide housing to individuals within

 

the community who are displaced due to drug crime.

 

     (4) Subsection (3) does not prohibit the local unit of

 

government that seized the property from disposing of the property

 

in any other manner authorized under this part.

 

     (5) (3) In the course of selling real property pursuant to

 

under subsection (1)(b) or (3), the court that has entered an order

 

of forfeiture may, on motion of the agency to whom the property has

 

been forfeited, appoint a receiver to dispose of the real property

 

forfeited. The receiver shall be entitled to reasonable

 

compensation. The receiver shall have authority to do all of the

 

following:

 

     (a) List the forfeited real property for sale.

 

     (b) Make whatever arrangements are necessary for the

 

maintenance and preservation of the forfeited real property.

 

     (c) Accept offers to purchase the forfeited real property.

 

     (d) Execute instruments transferring title to the forfeited

 

real property.

 

     (6) (4) If a court enters an order of forfeiture, the court

 

may order a person who claimed an interest in the forfeited

 

property pursuant to under section 7523(1)(c) to pay the expenses

 

of the proceedings of forfeiture to the entity having budgetary

 

authority over the seizing agency.

 

     Sec. 7524a. (1) Before February 1 of each year, each local

 

unit of government that had forfeiture proceedings pending in the

 

circuit court pursuant to under section 7523; or effectuated a

 

forfeiture of property pursuant to under section 7523 without a

 

forfeiture proceeding in the circuit court; or received money,

 

negotiable instruments, securities, or any other thing of value

 

pursuant to under section 7524 during the fiscal year for the local

 

unit of government ending in the immediately preceding calendar

 

year shall submit a report to the office of drug agencies for

 

analysis and transmittal to the secretary of the senate and the

 

clerk of the house of representatives. The annual report shall be a

 

summary of the local unit of government's activities regarding the

 

forfeiture of property under this article and pursuant to section

 

17766a for the fiscal year and shall contain the following

 

information, as applicable:

 

     (a) The number of forfeiture proceedings that were instituted

 

in the circuit court by the local unit of government.

 

     (b) The number of forfeiture proceedings instituted by the

 

local unit of government that were concluded in the circuit court.

 

     (c) The number of all forfeiture proceedings instituted by the

 

local unit of government that were pending in the circuit court at

 

the end of the year.

 

     (d) The number of forfeitures accomplished by the local unit

 

of government without filing a forfeiture proceeding in the circuit

 

court.

 

     (e) The net total proceeds of all property forfeited under

 

this article and pursuant to section 17766a through forfeitures

 

instituted by the local unit of government that the local unit of

 

government is required to account for and report to the state

 

treasurer pursuant to under either of the following, as applicable:

 

     (i) Act No. 71 of the Public Acts of 1919, being sections 21.41

 

to 21.53 of the Michigan Compiled Laws 1919 PA 71, MCL 21.41 to

 

21.55.

 

     (ii) The uniform budgeting and accounting act, Act No. 2 of the

 

Public Acts of 1968, being sections 141.421 to 141.440a of the

 

Michigan Compiled Laws 1968 PA 2, MCL 141.421 to 141.440a.

 

     (f) An inventory of property received by the local unit of

 

government pursuant to under section 7524, and section 17766a,

 

including, but not limited to, all of the following:

 

     (i) all of the following real property:

 

     (A) Single-family residential.

 

     (B) Multiple-family residential.

 

     (C) Industrial.

 

     (D) Commercial.

 

     (E) Agricultural.

 

     (ii) Any type of conveyance described in section 7521(1)(d),

 

including the year, make, and model.

 

     (iii) Money, negotiable instruments, and securities.

 

     (iv) The total value of personal property, excluding personal

 

property described in subparagraphs (ii) and (iii).

 

     (g) A statement explaining how the money received by the local

 

unit of government pursuant to under section 7524(1)(b)(ii) has been

 

used or is being used to enhance the law enforcement efforts

 

pertaining to this article. or section 17766a.

 

     (h) A statement of all real property disposed of under section

 

7524(3), the means of disposal, the total value of the property,

 

and if the property is being used for an authorized purpose, the

 

nature of that use.

 

     (i) (h) A statement of the number of lights for plant growth

 

or scales donated under section 7524(2), the total value of those

 

lights or scales, and the elementary or secondary schools or

 

institutions of higher education to which they were donated.

 

     (2) The records of a local unit of government described in

 

subsection (1) regarding the forfeiture of property under this

 

article or pursuant to section 17766a shall be audited in

 

accordance with 1 of the following, as applicable:

 

     (a) Act No. 71 of the Public Acts of 1919, being sections

 

21.41 to 21.53 of the Michigan Compiled Laws 1919 PA 71, MCL 21.41

 

to 21.55.

 

     (b) The uniform budgeting and accounting act, Act No. 2 of the

 

Public Acts of 1968, being sections 141.421 to 141.440a of the

 

Michigan Compiled Laws 1968 PA 2, MCL 141.421 to 141.440a.

 

     (3) The records of a local unit of government described in

 

subsection (1) regarding the forfeiture of property under this

 

article or pursuant to section 17766a may be audited by an auditor

 

of the local unit of government.