Bill Text: MI SB0232 | 2019-2020 | 100th Legislature | Introduced

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Bill Title: Criminal procedure: forfeiture; prosecutorial review of civil asset forfeiture in nuisance actions; require. Amends secs. 3801, 3810, 3815 & 3825 of 1961 PA 236 (MCL 600.3801 et seq.).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2019-03-19 - Referred To Committee On Judiciary And Public Safety [SB0232 Detail]

Download: Michigan-2019-SB0232-Introduced.html

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SENATE BILL No. 232

 

 

March 19, 2019, Introduced by Senator RUNESTAD and referred to the Committee on Judiciary and Public Safety.

 

 

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending sections 3801, 3810, 3815, and 3825 (MCL 600.3801,

 

600.3810, 600.3815, and 600.3825), sections 3801, 3810, and 3825 as

 

amended by 2014 PA 387 and section 3815 as amended by 2015 PA 153.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3801. (1) A building, vehicle, boat, aircraft, or place

 

is a nuisance if 1 or more of the following apply:

 

     (a) It is used for the purpose of lewdness, assignation,

 

prostitution, or gambling.

 

     (b) It is used by, or kept for the use of, prostitutes or

 

other disorderly persons.

 

     (c) It is used for the unlawful manufacture, transporting,

 

sale, keeping for sale, bartering, or furnishing of a controlled

 

substance.

 

     (d) It is used for the unlawful manufacture, transporting,

 

sale, keeping for sale, bartering, or furnishing of vinous, malt,

 

brewed, fermented, spirituous, or intoxicating liquors or mixed

 

liquors or beverages, any part of which is intoxicating.

 

     (e) It is used for conduct prohibited by section 49 of the

 

Michigan penal code, 1931 PA 328, MCL 750.49.

 

     (f) It is used for conduct prohibited by chapter LXVIIA of the

 

Michigan penal code, 1931 PA 328, MCL 750.462a to 750.462h.

 

     (g) It is used to facilitate armed violence in connection with

 

the unlawful use of a firearm or other dangerous weapon.

 

     (2) All Subject to subsection (5), all furniture, fixtures,

 

and contents of a building, vehicle, boat, aircraft, or place

 

described in subsection (1) and all intoxicating liquors in the

 

building, vehicle, boat, aircraft, or place are also declared a

 

nuisance.

 

     (3) All controlled substances and nuisances shall must be

 

enjoined and abated as provided in this act and the court rules.

 

     (4) A person, or a servant, agent, or employee of the person,

 

who owns, leases, conducts, or maintains a building, vehicle, or

 

place described in subsection (1) is guilty of a nuisance.

 

     (5) Subsection (2) does not apply to any portion of the

 

contents of a building, vehicle, boat, aircraft, or place described

 

in subsection (1) if the prosecuting attorney of a county has

 

determined that a portion of the contents are not nuisances under

 

subsection (2) and are legally owned by a person that is not a

 

party to an action or order of abatement under this chapter.

     (6) (5) As used in this section, "controlled substance" means

 

that term as defined in section 7104 of the public health code,

 

1978 PA 368, MCL 333.7104.

 

     Sec. 3810. (1) For purposes of this chapter, the grantee or

 

vendee of the last recorded deed or contract that describes the

 

premises, or any part of the premises, on which a nuisance exists

 

as described in section 3801 is considered to be the owner of the

 

premises. The naming of a grantee or vendee as a party defendant in

 

an action under this chapter gives the court authority to abate the

 

nuisance by closing the premises and the defendant is subject to

 

the order and judgment of the court.

 

     (2) For purposes of this chapter, any person in whose name a

 

vehicle, boat, or aircraft is titled, and any secured party or

 

other lien holder whose secured interest in or lien against the

 

vehicle, boat, or aircraft has been filed with the secretary of

 

state or in the office of the register of deeds before the

 

commencement of an action under this chapter, is considered to be

 

the owner of the vehicle, boat, or aircraft. The plaintiff shall

 

join any such secured party or lien holder as a party defendant to

 

an action under this chapter.

 

     (3) A court shall not enter an order or judgment against a

 

defendant under this chapter unless if the prosecuting attorney

 

determines the property at issue must be returned under section

 

3815(5) or if a copy of the summons and complaint has not been

 

served on the defendant as provided by Michigan court rules and the

 

defendant has not been given an opportunity to be heard.

 

     Sec. 3815. (1) In All of the following apply to an action

under this chapter: , evidence

 

     (a) Evidence of the general reputation of the building,

 

vehicle, boat, aircraft, or place is admissible for the purpose of

 

proving the existence of the nuisance.

 

     (b) (2) In an action under this chapter, proof Proof of

 

knowledge of the existence of the nuisance on the part of 1 or more

 

of the defendants is not required.

 

     (c) (3) In an action under this chapter, it It is not

 

necessary for the court to find the property involved was being

 

used as and for a nuisance at the time of the hearing, or for the

 

plaintiff to prove that the nuisance was continuing at the time the

 

complaint was filed, if the complaint is filed within 90 days after

 

any act, any violation, or the existence of a condition described

 

in section 3801 as a nuisance.

 

     (2) The law enforcement agency that is investigating or

 

responding to an alleged nuisance shall immediately provide notice

 

to the prosecuting attorney of the county if any property is seized

 

by the law enforcement agency. The law enforcement agency shall

 

provide a list of the property that was seized to the prosecutor

 

and to the owner of the property.

 

     (3) If the owner of property seized under subsection (2)

 

disputes that the property is a nuisance, the owner may seek the

 

return of the property by filing a motion in the district court

 

having jurisdiction in the location where the property was seized.

 

     (4) If a motion is filed under subsection (3), the prosecutor

 

shall review the list of property provided by the seizing law

 

enforcement agency under subsection (2) and determine all of the

following:

 

     (a) Whether or not all or a portion of the property seized

 

under subsection (2) likely constitutes a nuisance.

 

     (b) Whether or not the owner of the property is a party to an

 

action brought under this chapter.

 

     (c) Whether or not the property is evidence in a pending

 

criminal proceeding, or in an ongoing criminal investigation.

 

     (d) Whether or not the property presents a hazard to public

 

safety or is otherwise safe to return to the owner.

 

     (5) If the prosecutor determines based upon his or her review

 

of the list provided under subsection (2) that all or a portion of

 

the property seized under subsection (2) may be returned to the

 

owner, the prosecutor shall provide a list of returnable property

 

to the seizing law enforcement agency and ensure that the property

 

is returned.

 

     (6) If the prosecutor determines that the property must not be

 

returned under subsection (5), the prosecutor must object to the

 

return of the property by a motion in writing to the district

 

court.

 

     (7) If the prosecutor objects under subsection (6), the

 

property must not be retuned until the final disposition of an

 

abatement action under this chapter.

 

     (8) (4) In an action under this chapter, on finding that the

 

plaintiff has satisfied the burden of proof and that the material

 

allegations of the complaint are true, the court shall enter a

 

judgment and order of abatement as provided in this chapter.

 

However, if the plaintiff seeks abatement of a nuisance by

forfeiture or sale of a vehicle, boat, aircraft, or other personal

 

property, the plaintiff has the burden of proving by clear and

 

convincing evidence that the vehicle, boat, aircraft, or property

 

was used for or in furtherance of the activity or conduct that

 

constituted the nuisance as described in section 3801.

 

     Sec. 3825. (1) If the existence of the nuisance is established

 

in an action under this chapter, the court shall enter an order of

 

abatement as a part of the judgment in the action. The order of

 

abatement may order all of the following:

 

     (a) The removal from the building or place of all furniture,

 

fixtures, and contents.

 

     (b) The sale of the furniture, fixtures, and contents in the

 

manner provided for the sale of goods under execution.

 

     (c) The effectual closing of the building or place against its

 

use for any purpose, and so keeping it closed for a period of 1

 

year, unless sooner released as provided in this chapter.

 

     (d) Any other equitable relief the court considers necessary.

 

     (2) Any vehicle, boat, or aircraft found by the court to be a

 

nuisance under this chapter is subject to the same order and

 

judgment as any furniture, fixtures, and contents under subsection

 

(1).

 

     (3) If the existence of the nuisance is not established with

 

respect to all or some portion of property seized under this

 

chapter, the court shall enter an order requiring the return of

 

that property to the owner.

 

     (4) (3) On the sale of any furniture, fixtures, contents,

 

vehicle, boat, or aircraft as provided in this section, the officer

executing the order of the court shall do the following in the

 

following order:

 

     (a) Deduct the expenses of keeping the property and the costs

 

of the sale.

 

     (b) Pay all secured interests and liens according to their

 

priorities as established by intervention or otherwise at the

 

hearing or in other proceedings brought for that purpose as being

 

bona fide and as having been created without the secured party or

 

lien holder having any notice that the property was being used or

 

was to be used for the maintenance of a nuisance as described in

 

section 3801.

 

     (c) Subject to subsection (5), (6), pay the costs incurred in

 

the prosecution of the action, including reasonable attorney fees

 

for services necessitated as determined by the court.

 

     (d) Subject to subsection (5), (6), pay the balance to the

 

state treasurer to be credited to the general fund of this state.

 

     (5) (4) If any person uses a building or place ordered to be

 

closed under this section with knowledge that the building or place

 

is closed by order of the court, the person is subject to

 

punishment for contempt as provided in section 3820.

 

     (6) (5) If the court in an action under this chapter declares

 

property to be a nuisance under section 3801(1)(f), the officer

 

executing the order of the court shall first pay from the proceeds

 

any amount determined by the court to be due to the victim. If

 

there is any balance remaining, the officer shall pay the costs of

 

prosecution as provided in subsection (3). For purposes of

 

determining the amount due to a victim under this subsection, the

court shall consider the loss suffered by the victim as a proximate

 

result of the conduct and may shall use as guidance the items of

 

loss enumerated in section 16b of the William Van Regenmorter crime

 

victim's rights act, 1985 PA 87, MCL 780.766b.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.