In Re Return of Forfeited Goods
In re RETURN OF FORFEITED GOODS.
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Dale R. MIERZEJEWSKI, Defendant-Appellee.
Supreme Court of Michigan.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Elwood L. Brown, Prosecuting Attorney, and Timothy K. Morris and Michael L. Hulewicz, Assistant Prosecuting Attorneys, Port Huron, for people.
McIntosh, McColl, Carson, McNamee, Strickler & Rickel by Nancy Bates Rickel, Fort Gratiot, for defendant.
*783 RILEY, Justice.
This Court must decide whether the circuit court properly ordered the return of defendant's cash and jewelry after they were administratively forfeited pursuant to the controlled substances act.[1] We hold that the St. Clair County Sheriff's Department fully complied with the act to effect a valid forfeiture. The circuit court was, therefore, without jurisdiction to review the uncontested administrative forfeiture.
I
On January 23, 1992, officers obtained a search warrant that led to the seizure of cocaine, drug paraphernalia, cash, gold jewelry, and personal items from defendant Dale Mierzejewski. He was arrested for possession of under twenty-five grams of cocaine with intent to deliver. Later that day, the St. Clair County sheriff's office personally served defendant[2] with a notice of intent to forfeit property. The sheriff's department sought forfeiture of the previously seized items: $3,420 in cash, two gold bracelets, and three gold chains, pursuant to the controlled substances act.[3] Defendant failed to file a claim or post bond as required by
On August 4, 1992, defendant was charged with possession with intent to deliver less than twenty-five grams of cocaine and was taken into custody. After a series of delays, trial was scheduled for August 10, 1993. On that date, however, the prosecutor moved to dismiss the case because the prosecution's witnesses, other occupants of the motel room arrested with defendant, indicated that if called to testify they would exercise their Fifth Amendment rights. After the trial court granted the prosecutor's motion to dismiss, counsel for defendant moved "for the return of the property seized pursuant to the statute
Therefore, on October 18, 1993, defendant brought a motion before the trial court for the return of all his property. The court, apparently relying on the error in defendant's address on the notice of forfeiture, ordered the forfeited property returned to defendant.[6] Plaintiff appealed as of right.
In a two to one decision, the Court of Appeals affirmed the decision of the trial court,[7] holding that the property forfeited under
II
A
Disposition of the seized and subsequently forfeited items in this case is governed by the controlled substances act,
*785 After receiving this notice, defendant had every right to contest the forfeiture. However, to do so, defendant was obligated to file a claim and post bond:[13]
Any person claiming an interest in property which 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. [M.C.L. § 333.7523(1)(c) ; M.S.A. § 14.15(7523)(1)(c).]
Upon receipt of the property owner's claim, the prosecuting attorney must then commence forfeiture proceedings at the expiration of the twenty-day period:
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.... 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. [M.C.L. § 333.7523(1)(c) ; M.S.A. § 14.15(7523)(1)(c).]
This is the only means by which the statute confers jurisdiction on the circuit court. In the present case, defendant never filed a claim or posted bond. His failure activated the automatic forfeiture clause of
B
Notwithstanding the clear and unambiguous language of the statute, defendant argues that the circuit court had jurisdiction to review the forfeiture proceedings, citing In re Property Held by the Detroit Police Dep't, *786
It is clear from both the language of the decision in Detroit Police Dep't and that Court's reliance on Washington that the property at issue in Detroit Police Dep't had not been administratively forfeited under the controlled substances act. Therefore, Detroit Police Dep't merely stands for the proposition that following a preliminary examination in which the charge against the defendant is dismissed, property seized and held as evidence, but not administratively forfeited under the controlled substances act, may be returned to the defendant by a circuit court having jurisdiction over the criminal matter.
C
Defendant also argues that a binding agreement was made between the parties in open court that obligated the prosecutor to return the forfeited property. Defendant and the Court of Appeals cited MCR 2.507(H) in support:
An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding unless it was made in open court, or unless evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered or by that party's attorney.
Assuming, arguendo, that the prosecutor agreed to return the forfeited property, the prosecutor's agreement was invalid.[18] MCR 2.507 does not abrogate the fundamental rule of civil procedure that "subject matter jurisdiction cannot be conferred on the court by the consent of parties." In re Hatcher,
Moreover, defendant and the Court of Appeals rely on Nelson v. Consumers Power Co.,
It is also claimed that the prosecutor waived the trial court's jurisdiction. It is well established that "[j]urisdiction of the subject-matter cannot be given by consent." Warner v. Noble,
III
Unquestionably, the sheriff's department fulfilled the notice requirements of
BRICKLEY, C.J., and BOYLE, MALLETT and WEAVER, JJ., concurred with RILEY, J.
CAVANAGH, Justice (dissenting).
The majority holds that "the St. Clair County Sheriff's Department fully complied with the [controlled substances] act to effect a valid forfeiture." Op., p. 783. Accordingly, the majority concludes that "the circuit court was without authority to order the return of defendant's cash and jewelry." Id., p. 783. In my opinion, however, this whole issue is effectively moot because the forfeiture of defendant's property did not satisfy all the requirements contemplated by the act.
I
The key to my analysis is the fact that no independent determination of the forfeitability of defendant's property was ever made, contrary to the intent of the statute. The property at issue was seized by officers of the St. Clair County Sheriff's Department, a defective notice of intent to forfeit was served on defendant by officers of that same department, and, twenty days after this service, a notice of forfeiture[1] was sent to defendant and the St. Clair County Sheriff's Department considered itself the new owner of defendant's property.
A
In relevant part, subsection 7521(1)(f) of the act provides that "[t]he following property is subject to forfeiture:
* * * * * *
Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance ... that is traceable to an exchange for a controlled substance... or that is used or intended to be used to facilitate any violation of this article ... including, but not limited to, money, negotiable instruments, or securities." [M.C.L. § 333.7521(1)(f) ; M.S.A. § 14.15(7521) (1)(f).]
I do not claim that defendant's property was illegally seized in this case. But the ultimate forfeitability of such property depends on proof that the property was furnished in exchange for, or is traceable to an exchange for, a controlled substance. Fundamental fairness and the irrefutable requirement *788 of the reviewability of law enforcement actions for the protection of our civil liberties requires the existence of a "formal system ... by which to check the potentially unbridled discretion the police would possess if allowed to make [both determinations required by the controlled substances act]. The potential for abuse seems obvious." People v. Gallego,
Moreover, in this particular case, it is actually unnecessary to even reach the question who should ultimately decide the forfeitability of the property at issue. This is so because, given the fact that the charges against defendant were dropped and no prosecution was carried out against any of the parties involved, there is legally no "exchange for a controlled substance" to which defendant's property is "traceable" or for which defendant's property was "furnished or intended to be furnished." Therefore, the requirements of subsection 7521(1)(f) were never met and defendant's property never became legally subject to forfeiture.
B
Subsection 7523(1) provides that "[i]f property is seized pursuant to section 7522,[2] forfeiture proceedings shall be instituted promptly."
In my opinion, although the property was properly seized and the owner was notified (albeit insufficiently) of the county's intent to forfeit, the absence of a subsequent independent determination that the seized property was actually forfeitable vitiates the conclusion that legal ownership of the property passed from defendant to the county.
C
I would also point out that the notice of intent to forfeit served on defendant was defective because of the undisputed fact that it did not comply with its own clearly stated requirement of advising the property owner where to file a claim and give a bond, should he decide to do so.[3] Protection against arbitrary governmental seizures of private property, a protection well embedded in our legal tradition, surely requires strict compliance with procedural safeguards.
D
If the majority's interpretation is correctthat, absent the filing of a claim, any property lawfully seized becomes the property of the seizing authority (here, the sheriff) *789 after twenty daysthen police agencies have a marvelous tool for augmenting their budgets. This automatic transfer of title could never be challenged later, even if the prosecutor determines on the twenty-first day that a mistake was made, that the seized property was not drug related, and that there will be no criminal prosecution. And we cannot rely on the good intentions of the prosecutor in such circumstances because, at oral argument, in response to Justice Mallett's inquiry whether the prosecutor could return the items after twenty days had passed, the prosecutor responded, "I don't believe that we could, Justice.... If the 20 days had passed, it would be my position that that property belonged to St. Clair County, and it would be out of our consideration." (Emphasis added.)
The majority's interpretation endorses irrevocable transfers of ownership to the governmental entity that makes the initial decision to seize property without any authoritative determination that the property is actually subject to forfeiture. This is certainly a financial boon to law enforcement agenciesperhaps there was a method to leaving the notice of intent form blank rather than indicating where to file a claimbut it is a boon that cannot be countenanced under our rule of law. And, more specifically, it violates the overall statutory scheme of the forfeiture provisions of the controlled substances act.
II
In conclusion, then, I would hold that legal ownership of defendant's property never transferred to the county. Therefore, on that basis alone, defendant is entitled to the return of his property.
LEVIN, J., concurred with CAVANAGH, J.
NOTES
[1]
The following property is subject to forfeiture:
* * * * * *
Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance, an imitation controlled substance, an androgenic anabolic steroid, or a counterfeit androgenic anabolic steroid in violation of this article or section 17766a that is traceable to an exchange for a controlled substance, an imitation controlled substance, an androgenic anabolic steroid, or a counterfeit androgenic anabolic steroid in violation of this article or section 17766a, or that is used or intended to be used to facilitate any violation of this article or section 17766a including, but not limited to, money, negotiable instruments, or securities.... Any money that is found in close proximity to any property that is subject to forfeiture under subdivision (a), (b), (c), (d), or (e) shall be presumed to be subject to forfeiture under this subdivision. This presumption may be rebutted by clear and convincing evidence.
[2] A St. Clair County deputy sheriff signed a return of service, stating that the notice was served on defendant at the St. Clair County jail. The dissent has unilaterally declared this service defective without a basis in the statute. Op., pp. 787 and 788, n. 3. The sheriff's department fully complied with the requirements of the statute.
[3] Not all property seized was forfeited.
Notes
[4] The notice of forfeiture signed by an assistant prosecuting attorney read:
On the 23rd of January, 1992 you were served with a Notice of Intent to Forfeit the above referenced property.
The statutory period has elapsed and you have failed to comply with the provisions of the statute, to-wit: M.C.L.A.
As a result, you are hereby notified that pursuant to the provisions of the statute referred to herein your interest in said property has been and is hereby forfeited. Said property now belongs to St. Clair County.
[5] See n. 3.
[6] The Court: All right. The correct address is 2519 instead of 3519 Cherry, and if he had received this letter your position would be totally different?
Mrs. Rickel: Yes, your Honor.
The Court: This letter [notice of forfeiture] was written by the prosecutor's office with the name of Steven Simasko on it. I am going to have the property returned to him.
[7]
[8]
[9] The property was seized pursuant to
Seizure without process may be made under any of the following circumstances:
(a) Incident to a lawful arrest, pursuant to a search warrant, or pursuant to an inspection under an administrative inspection warrant.
[10] 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. [
[11] At the October 18, 1993, hearing, defense counsel argued that the notice of intent to forfeit property did not have her client's correct address on it. Defendant was residing at 2519 Cherry Street and the sheriff's notice of intent to forfeit property listed defendant's address as 3519 Cherry Street. However, because defendant was personally served, the mistaken address is irrelevant.
Defense counsel also argued that the notice of intent to forfeit property failed to state where defendant was to file a claim. The statute imposes no obligation on the forfeiting agency to inform a property owner where to file a claim. See
[12] The sheriff's notice of intent to forfeit property stated:
The below listed property was seized pursuant to the provisions of the Controlled Substance Act,
To-wit: $3,420.77, 2 Gold Bracelets, 3 Gold Chains
Pursuant to the statue [sic] you are placed on notice that it is our intent to forfeit this property.
In the event you wish to contest this forfeiture and have a hearing thereon, you must do the following:
1. Within twenty (20) days from receipt of this notice, file a claim by sending a notice of that claim to ____________________________.
2. You must file a case or surety bond with the local unit of government, to-wit, St. Clair County in the amout [sic] of $250.00.
If both of the above are not accomplished within the required twenty (20) days, the items will be declared forfeited.
[13] Failure to file a claim and post bond results in the administrative forfeiture of the property.
[14] The dissent would rewrite this particular legislation to include review through a neutral, independent proceeding. No such provision exists in the present statute, and, unless the provision is declared unconstitutional, it must be read and applied as written. See Grand Rapids v. Crocker,
[t]he courts should recognize limitations on their powers in interpreting statutes. They should recognize that the legislature is supreme and must be followed to the extent that it has passed laws which are clear and constitutional. The courts do not have the right to say: "This is what the statute states, but we do not like it and hence will not follow it." [Johnstone, An evaluation of the rules of statutory interpretation, 3 U.Kan.L.R.1, 8 (1954).]
[15] Although the prosecutor sent defendant notice that the property had been forfeited, it was under no such statutory obligation. Therefore, defendant's claim that his address was incorrect on the notice of forfeiture is without merit.
[16] This result is clear from the unambiguous language of the statute and is supported by the traditional common-law distinction between criminal and forfeiture proceedings. See People v. Hellis,
[17] The Court held:
The original and exclusive jurisdiction of the Recorder's Court over felonies committed in Detroit includes the ancillary power to return property to those from whom it has been seized for use as possible evidence. The so-called reorganization of Recorder's Court does not deprive it of general jurisdiction over felonies, including the ancillary power here exercised....
[I]n the framework of a criminal case, the Recorder's Court has jurisdiction to order the return of property seized by the police department to the person from whom it was seized. [Id. at 509,
[18] Defense counsel asked for return of "seized" property. There is a distinction between property "seized and held" and property administratively and finally forfeited. See Washington, supra at 510-511,
[19] See People v. Phillips,
[1] Such notice is not mentioned in the act. It is apparently a self-initiated administrative practice of the St. Clair County Prosecutor's Office.
[2]
[3] The notice of intent to forfeit in this case was defective in that it failed to provide any information on where a claim was to be filed. The form served upon defendant stated: "In the event you wish to contest this forfeiture and have a hearing thereon, you must do the following: (1) within twenty (20) days from receipt of this notice file a claim by sending a notice of that claim to ________" (Emphasis added.)