Novak v. FederspielNovak v. Federspiel
OPINION AND ORDER STAYING CASE UNDER (1) PULLMAN ABSTENTION, (2) BURFORD ABSTENTION, AND (3) COURT‘S INHERENT AUTHORITY, (4) CERTIFYING QUESTIONS TO MICHIGAN SUPREME COURT, (5) DIRECTING PARTIES TO SHOW CAUSE FOR WHY THEY HAVE NOT INITIATED FORFEITURE PROCEEDINGS, (6) STRIKING DUPLICATIVE MOTION AND (7) STRIKING AMENDED COMPLAINT
After a domestic dispute at a “deer-hunting cabin” in 2017, Saginaw County
Attempting to retrieve the firearms from the “Saginaw County Sheriff‘s Office,” Heinrich‘s relatives brought unsuccessful claim-and-delivery actions in two Saginaw County courts. In the first case, the Saginaw County Circuit Court also denied Plaintiff leave to add “futile” § 1983 claims. The second case, which Plaintiffs filed in the Saginaw County District Court, is on appeal.
Frustrated with their progress in Saginaw County, Heinrich‘s relatives brought a third claim-and-delivery action in this Court, adding § 1983 claims alleging violations of (1) the Fourth Amendment, (2) the Takings Clause, (3) procedural due process, and (4) substantive due process. See ECF No. 1 at PageID.6-13.
Because the pending state-law case would resolve both possession and ownership of the firearms, this Court stayed the case under Colorado River abstention. Plaintiffs appealed, and the Sixth Circuit reversed, noting that Plaintiff‘s federal complaint sought not only the firearms but also punitive damages and attorney‘s fees. Novak v. Federspiel, No. 21-1722, 2022 WL 3046973, at *3 (6th Cir. Aug. 2, 2022). Even though “[b]oth cases indisputably rest on the banks of the same facts,” the Sixth Circuit held that the “claims and requests for relief vary between the state and federal actions so much so that” Colorado River abstention was not warranted. Id. Yet, it added, this does “not diminish the district court‘s inherent power to manage its docket and stay the resolution of discrete claims until after the state court‘s proceedings have come to a close.” Id.
On remand, the parties have filed cross-motions for summary judgment on Plaintiffs’ claim-and-delivery action. While factually disputing whether the Saginaw County Sheriff‘s Office is lawfully detaining 14 firearms it seized from Heinrich, the parties are de facto disputing the interplay between Michigan‘s forfeiture statutes on the one hand and a civil action for claim and delivery on the other. The question becomes “May a purportedly innocent owner of personal рroperty that was lawfully seized from another person, later convicted, seek the property through a civil action for claim and delivery without initiating forfeiture proceedings in the criminal court?”
The case will be stayed under Pullman abstention, Burford abstention, and this Court‘s inherent authority so that the parties can certify gateway questions of Michigan‘s forfeiture statutes to the Michigan Supreme Court. And the parties will be directed to show cause for why they have not initiated forfeiture proceedings.
I.
A.
On October 24, 2017, while drunk and frustrated with his crying daughter, Benjamin Joseph Heinrich marched into his bedroom, opened an unlocked gun cabinet less than two feet from his bed, pulled out a shotgun, and forced “H,” Heinrich‘s daughter‘s mother, to “leave by gunpoint.” ECF Nos. 2-2 at PageID.48-49; 10-9 at PageID.429. H fled, then Heinrich “put the gun back in the [cabinet] and walked out of the room.” ECF No. 2-2 at PageID.49. H called the police and gave them a cell-phone video of the assault. Id. at PageID.50. Officers from the Saginaw County Sheriff‘s Office and Chesaning Police Department arrested Heinrich for felonious assault,
The рarties dispute the legal authority for the seizures but not their lawfulness. The police report inconsistently provides that “14 guns were placed into evidence, 13 were for safe keeping.” ECF No. 2-2 at PageID.50. Yet only three of the firearms in the police report have a “status” of “Held for Safe Keeping.” See id. at PageID.50-55. At the state circuit court, Plaintiffs argued the 14 firearms were seized “for whatever reasons.” ECF No. 11-13 at PageID.1120. But during discovery, Defendant answered that “the [14] firearms were seized incident to the arrest of a criminal Defendant who has not claimed ownership nor requested return.” ECF No. 11-6 at PageID.973. At the state district court, Plaintiffs argued “the [14] firearms were not ‘seized’ by the Sheriff‘s Office as that term means under
On November 30, 2017, Heinrich pleaded guilty to domestic violence under
Defendant‘s internal email reflects that sometime “soon after” the incident, but no later than June 1, 2018, two of Heinrich‘s relatives—Plaintiffs Gerald Novak and Adam Wenzel1—started “calling and asking for the guns back.” See ECF No. 2-5 at PageID.60-61. Plaintiffs, however, maintain that “they sought the return of the firearms” in “early 2019.” ECF No. 2 at PageID.37. Although Plaintiffs made “numerous calls to [Defendant], it refuses to return the 14 firearms.” ECF No. 11-2 at PageID.910; see also ECF No. 2-5 at PageID.61 (statement of Detective Jeffrey Kruszka) (“I replied too bad, no proof of ownership, and the one who had last custody of the guns was a violent drunk.“).
B.
Three months after Heinrich‘s probation ended, Plaintiffs sought the firearms in a claim-and-delivery action in the Tenth Circuit Court of Saginaw County. See Novak v. Saginaw Cnty. Sheriff‘s Off., No. 19-039371-PD (Mich. 10th Cir. Ct. Saginaw Cnty. filed May 13, 2019). In March 2020, Heinrich disclaimed ownership of the firearms—for the first time—bolstering Plaintiffs’ claims. See ECF No. 11-26 at PageID.1291-92.
In an August 2020 order granting in part Plaintiffs’ motion for leave to amend the complaint, Judge Andre R. Borrello suggested Plaintiffs’ exclusive remedy was to seek “return of the weapons through [forfeiture].” ECF No. 11-2 at PageID.1114 (first citing
Then in a January 2021 order granting summary judgment for Defendant, Judge Borrello (1) denied Plaintiffs’ claim-and-delivery action on the merits, (2) briefly elaborated on the statutory forfeiture proceedings, (3) again suggested that Plaintiffs file a motion to initiate forfeiture proceedings in the district court of Heinrich‘s criminal case because “a claim and delivery action in the Circuit Court is an improper mechanism to recover th[e] firearm[s],” and then (4) dismissed the case “without prejudice to Plaintiffs’ ability to bring their claims in the appropriate court.” ECF No. 11-15 at PageID.1135-44.
C.
Plaintiff did not challenge the forfeiture of the firearms. Instead, they sought the same “claim and delivery” relief from a different court: the district court of Heinrich‘s criminal conviction. See Novak v. Saginaw Cnty. Sheriff‘s Off., No. 21-0781-GZ (Mich. 70th Dist. Ct. Saginaw Cnty. filed Feb. 24, 2021). That is, they went to the right court but filed the wrong claim.
Judge Terry L. Clark dismissed the case in August 2021, as follows:
- Plaintiffs’ Motion for Summary Disposition is denied.
- Defendant‘s Motion for Summary Judgment is granted on the grounds that the Saginaw County Sherriff‘s Office is not a legal entity subject to suit and Plaintiffs’ Claim аnd Delivery action is barred by governmental immunity.
ECF No. 2-10 at PageID.91.
Plaintiffs again chose not to initiate forfeiture proceedings. Instead, they appealed the district court‘s order to the Tenth Circuit Court of Saginaw County. See Novak v. Saginaw Cnty. Sheriff‘s Off., No. 21-045333-AV (Mich. 10th Cir. Ct. Saginaw Cnty. filed Sept. 3, 2021). Although the public docket is not available in that case, the state-court clerk‘s office responded that a “no-notice” oral argument is scheduled for December 9, 2022.2 Thus, Plaintiff‘s claim-and-delivery action, dismissed
Meanwhile, Judge Clark ordered that the 14 firearms shall “not be disposed of until appeal is resolved.” Novak v. Saginaw Cnty. Sheriff‘s Off., No. 21-0781-GZ (Mich. 70th Dist. Ct. Saginaw Cnty. Aug. 31, 2021). That order is still in effect.3
As explained earlier, with their state-court appeal pending, Plaintiffs filed a third claim-and-delivery action here, which was stayed, which they appealed, which was remanded.
D.
Back here again, the parties have filed cross-motions for summary judgment on Plaintiffs’ claim-and-delivery action.4 ECF Nos. 2; 13; 20. Both motions involve several issues of state law—from ambiguous criteriа concerning ownership of the firearms to confusion surrounding Michigan‘s forfeiture statutes.
The parties principally dispute whether the Saginaw County Sheriff‘s Office lawfully possesses the 14 firearms. Defendant‘s primary, reasonable concern is that Plaintiffs are merely claiming ownership to retrieve the firearms for Heinrich, who may not legally possess them. See ECF No. 20 at PageID.1555-56. Plaintiffs inconsistently acknowledge that they “[s]tored” the 14 firearms at Heinrich‘s house yet deny “they were []ever given to, put in possession of, or provided to Mr. Heinrich in any way.” ECF No. 1 at PageID.3; accord ECF Nos. 2-6; 2-7. Plaintiffs are “unable to document ownership of these firearms” but allege that some are “family heirlooms.” ECF No. 2-6 at PageID.63, 64, 65. Adding insult to injury, Heinrich has lived in the house since at least June 4, 2014, ECF No. 10-4 at PageID.288, while his mother held partial title, see ECF No. 11-7 at PageID.1004-06.5 But Plaintiffs dispute that issue. See
The parties also disagree over which cause of action applies to their dispute. Defendant maintains not only that Michigan law does not require the Sheriff‘s Office to initiate forfeiture proceedings, but also that Plaintiffs could do so but have chosen not to do so. Neither party has. Because Defendant has not initiated forfeiture proceedings, Plaintiffs believe the answer is “claim and delivery.” Both actions, however, would require a determination of who owns the firearms. Forfeiture would also require a determination of whether the firearms are subject to forfeiture.
To understand the nuances of these issues, a brief survey of forfeiture and claim and delivery is warranted.
E.
The concept of fоrfeiture, punishing profit and property of criminal conduct, is Biblical. See Exodus 21:28 (Douay-Confraternity) (“If an ox gore a man or woman, and they die, he shall be stoned: and his flesh shall not be eaten, but the owner of the ox shall be quit.“).
But modern forfeiture evolved from medieval England, where death-causing property, called “deodands,” were forfeited to the Crown, which would donate the value to charity. Robert Lieske, Civil Forfeiture Law, 21 WM. MITCHELL L. REV. 265, 272-75 (1995). Charity lost to profit, however, and the Crown started keeping the deodands. Id. at 274. This newfound revenue source eventually spread to piracy and smuggling too. Id. at 275-77 (discussing the Navigation Act of 1660).
As an outgrowth of English law, the United States similarly authorized civil forfeiture to sanction ships used in customs violations.
But “it was not until the ‘war on drugs’ in the 1980s that modern civil forfeiture use became widespread.” Rachel L. Stuteville, Comment, Reverse Robin Hood, 46 TEX. TECH L. REV. 1169, 1179 (2014).
Civil forfeiture has become controversial. As an in rem proceeding focusing on the innocence of property, the owner‘s innocence has little to no effect on the outcome. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 684-86 (1974) (collecting cases). Advocates argue “[a]sset forfeiture is one of law enforcement‘s most effective tools to reduce crime.” See, e.g., JEFFERSON B. SESSIONS III, OFF. OF THE ATT‘Y GEN., ORD. No. 3946-2017, FEDERAL FORFEITURE OF PROPERTY SEIZED BY STATE AND LOCAL LAW ENFORCEMENT AGENCIES (2017), https://www.justice.gov/opa/press-release/file/982611/download [https://perma.cc/P3GE-KUSB]. Critics, however, “contend modern civil forfeiture is out of control.” Arlyck, supra, 1456; Marc S. Roy, Unitеd States Federal Forfeiture Law, 69 Miss. L.J. 373, 416 (1999) (fearing “zealot” law-enforcement officials who are too “immersed in their pursuit of the rewards offered by forfeiture“).
And civil forfeiture has become so complex that it makes inexperienced attorneys “feel like they are in an Alice-in-Wonderland world.” 1 DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE CASES ¶ 1.03 (2000). Yet all 50 states use some type of forfeiture remedy. See generally MARIAN R. WILLIAMS ET AL., INST. FOR JUST., POLIĆING FOR PROFIT (2010), https://ij.org/wp-content/uploads/2015/03/assetforfeituretoemail.pdf [https://perma.cc/Q6S8-ZSWX] (grading the civil-forfeiture laws of all 50 states).
Michigan civil forfeiture is no exception. At its inception, Michigan forfeiture did not require criminal proceedings. See Meghan Berkery, Note, Rethinking the Future of Civil Asset Forfeiture in Michigan, 96 U. DET. MERCY L. REV. 329, 360-61 (2019). “[F]or failing to adequately protect citizens,” those laws were “widely criticized.” Kelsey Kanthack, Post, Michigan‘s Civil Asset Forfeiture Laws Are Changing, But at What Cost?, MICH. ST. L. REV. F. (Jan. 30, 2020), https://www.michiganstatelawreview.org/forum-2/2020/1/30/michigans-civil-asset-forfeiture-laws-are-changing-but-at-what-cost [https://perma.cс/9YCY-JRTM]. In 2010 for example, Michigan was one of the five “lowest-graded states overall” based on “both poor laws and aggressive use of equitable sharing.” MARIAN R. WILLIAMS ET AL., INST. FOR JUST., POLIĆING FOR PROFIT 8 (2010), https://ij.org/wp-content/uploads/2015/03/assetforfeituretoemail.pdf [https://perma.cc/Q6S8-ZSWX] (grading the civil-forfeiture laws of all 50 states). Despite such heavily criticized law-enforcement purposes, Michigan forfeiture has “allow[ed many] defendants to obtain favorable sentences in return for favorable forfeiture agreements.” Kevin P. Rauseo, Comment, Criminal Procedure, 30 SUFFOLK U. L. REV. 1245, 1248 (1997).
This case orbits Michigan‘s Omnibus Forfeiture Act (OFA), passed in 1961.6
F.
Unlike forfeiture‘s focus on the liability of real and personal property, the civil cause of action for “claim and delivery” is all about the possession of personal property.
Although born as “detinue” in England during the reign of Henry II, for the longest
If the beginning of love
Is loss, possessing it
In places where you know
It can be seen, then
The reason for love is
Retrieval, arranging it
To fit the space where
It always might have been.
Douglas Crase, Three Poems: Replevin, POETRY NW., Spring 1977, at 17, 17 (emphases added); 3 WILLIAM BLACKSTONE, COMMENTARIES *144, *145-46. This loss-recovery legal remedy was created to deter self-help recovery of chattels, though mostly used to permit tenants to repossess their goods from landlords after being evicted for overdue rent, which often undervalued the seized goods. See Sears v. Cottrell, 5 Mich. 251, 268 (1858). A person from whom a chattel was taken could invoke replevin to repossess it until the court resolved the superior right to possession.
Replevin grew into a bulwark against any wrongful possession of personal property. While a minority of states permitted quiet-title actions7 to resolve ownership issues involving both real and personal property, see John T. Soma et al., The Use of Quiet Title and Declaratory Judgment Proceеdings in Computer Software Ownership Disputes, 71 DENV. U. L. REV. 543, 567-68 (1994), Michigan made replevin the exclusive cause of action to recover possession of personal property,8 Corbitt v. Brong, 6 N.W. 213 (Mich. 1880) (per curiam). However, “replevin was declared unconstitutional in 1972 and replaced with claim and delivery.” Byron D. Cooper, The Bar Exam and Law Schools, 80 MICH. BAR J., at 74, 74 (2001) (citing
The same 1961 Michigan statute that enacted the OFA also codified “claim and delivery.”9 “In most cases, the basis of the action is a security agreement.” Daniel M. Morley, The Claim and Delivery Action, 78 MICH. BAR J., at 674, 674 (1999). “[F]irms [tend to] use claim and delivery process only as a last resort after having failed to collect the debt by other means.” Blair v. Pitchess, 486 P.2d 1242, 1248 (Cal. 1971) (en banc). Supplemented by a 1985 court rule, Michigan claim and delivery permits a holder of legal title to recover “possession of [any] goods or chattels which have been unlawfully taken or unlawfully detained.”
In sum, claim and delivery is a possessory action not intended to resolve legal title. Pearl v. Garlock, 28 N.W. 155, 155 (Mich. 1886). Claim-and-delivery judgments only resolve the right of possession. Kaufman v. Nystrom, 67 N.W.2d 240, 243 (Mich. 1954) (en banc); see also Simmons v. City of Southfield, No. 19-11726, 2020 WL 1868774, at *5 (E.D. Mich. Jan. 27, 2020) (stating that claim-and-delivery “motions are more accurately motions for possession pending final judgment“), R&R adopted, No. 19-11726, 2020 WL 1866096 (E.D. Mich. Apr. 14, 2020). Simply put, legal title is an element of claim and delivery, not the goal. See Colby v. Portman, 72 N.W. 1098, 1099 (Mich. 1897); cf. Dawkins v. Edwards, 134 N.W.2d 756, 763 (Mich. 1965) (“The right to maintain replevin has been denied where the [plaintiff] has no legal title to the property sought, or fails to show any right to immediate possession thereof.“). In sum, claim and delivery is to possession, as conversion is to use, as quiet title is to ownership, as forfeiture is to the criminal liability of property.
Because Plaintiffs have no proof of title to the firearms lawfully seized incident to the arrest of another person, their recovery attempt seems more apt for forfeiture than for claim and delivery.
II.
As explained hereafter, resolving ambiguous Michigan law could resolve all of Plaintiffs’ constitutional claims. The ambiguity is the interaction between forfeiture (a complex regulatory system to resolve whether property was involved in a crime) and claim and delivery (a civil cause of action to recover possession of property). Similarly, all of Plaintiffs’ claims might be avoided if either party would file a motion to initiate forfeiture proceedings in the state district court of Heinrich‘s criminal conviction. For these reasons, this Court will stay the case under Pullman abstention, Burford abstention, and its inherent authority to manage its docket. Consequently, the parties will be directed to certify questions to the Michigan Supreme Court and to show cause for why they have not initiated forfeiture proceedings in the Seventieth District Court of Saginaw County.10
A.
Pullman abstention is warranted when a constitutional issue would be avoided by resolving an “unclear” state-law claim. R.R. Comm‘n of Tex. v. Pullman Co., 312 U.S. 496, 499-501 (1941); accord Baggett v. Bullitt, 377 U.S. 360, 376-78 (1964) (explaining that, in “the bulk of abstention cases,” the “eliminat[ion of] the constitutional issue and terminat[ion of] the litigation . . . turn upon a choice between one or several alternative meanings of a state statute“); Traughber v. Beauchane, 760 F.2d 673, 682 (6th Cir. 1985) (“Pullman abstention is applicable [if] state interpretation of an unclear law would remove the federal issue by making unnecessary a constitutional decision.“).
District courts may abstain sua sponte. Fed. Exp. Corp. v. Tenn. Pub. Serv. Comm‘n, 925 F.2d 962, 966 (6th Cir. 1991) (citations omitted). Before invoking Pullman abstention, however, “district courts should engage in a thorough analysis of the state-law issue.” Jones v. Coleman, 848 F.3d 744, 753 (6th Cir. 2017). To that end, the “district court must ask whether the state statute is ‘fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.‘” Id. at 752 (quoting Harman v. Forssenius, 380 U.S. 528, 535 (1965)). As a threshold matter, the statutory interpretations at issue involve only 13 firearms. See discussion supra Section I.A. There is no question that the New England Firearms Pardner Model .410 GA shotgun (SN: NB218049) that Heinrich used to violate
1.
The key issue here is whether Michigan‘s forfeiture statute precludes Plaintiffs’ claim-and-delivery action. If not, then any purportedly innocent owner of property lawfully seized from another could bring a federal § 1983 action that would obviate Michigan‘s entire forfeiture system. Taken to its logical conclusion for context, if the police lawfully seize a criminal‘s extra guns, then any friend or family member could bring a federal § 1983 action for claim and delivery of the guns. But what if the third party is merely assisting the defendant to recover the guns? State courts are best suited to address such matters of property ownership—creatures of state law. And forfeiture seems more apt under the circumstances. These issues turn on an interpretation of Chapter 600, which provides the comprehensive administrative system for omnibus forfeiture in Michigan: the OFA. See
Although the OFA permits precharge property seizures and forfeiture proceedings, see
The OFA does not require “the state or local unit of government seeking forfeiture of the property” to initiate forfeiture proceedings if the property has a value “less than $100,000.00.”13
However, the OFA problematically provides that:
Personal property seized under [Chapter 600] is not subject to any other action to recover personal property, but is considered to be in the custody of the seizing agency subject only to [§ 600.4703(4)] and [§§ 600.4705-.4707], or to an order and judgment of the court having jurisdiction over the forfeiture proceedings.
No doubt, claim and delivery is an “action . . . to recover possession” of personal property.
Yet it is less than clear whether the firearms were “seized under [Chapter 600].” See
“Personal property subject to forfeiture . . . may be seized without process” in six “circumstances.”
Even if personal property must be “subject to forfeiture” to be seized without process, the OFA appears to place the burden on third parties to “move the court . . . to return the property . . . on the grounds that . . . [it] is not subject to forfeiture.”
Simply put, the structure of the OFA apparently prohibits claim-and-delivery actions before a court with jurisdiction determines whether the property is subject to forfeiture and was properly seized. But a careful reading of § 600.4703(5)‘s text permits claim-and-delivery actions before those determinations are made. As explained though, the seizing agency is not always required to initiate forfeiture proceedings. See
If law enforcement or prosecutors need not initiate forfeiture proceedings under the OFA, then must Plaintiffs do so before filing a claim-and-delivery action to retrieve the seized property? Does the chicken come before the egg? And which is which? This is the crux of the case.
Although it is not altogether clear why Plaintiffs are unwilling to initiate forfeiture proceedings, it might be due to different burdens of proving ownership. Under that lens, Plaintiffs seem to believe that proving that they own the firearms would be easier in a civil claim-and-delivery action than in forfeiture proceedings. But that proposition is doubtful at best.
In forfeiture, Plaintiffs might have to prove their title to the firearms, as they were seized from Heinrich‘s possession. Hollins v. City of Detroit Police Dep‘t, 571 N.W.2d 729, 732 (Mich. Ct. App. 1997) (“[T]he government properly could have presumed that the family member in actual possession of the cash was its true owner. The burden would then have been on another family member to produce evidence to the contrary.” (citing In re Forfeiture of $19,250, 530 N.W.2d 759, 762-63 (Mich. Ct. App. 1995))); Barnes v. City of Detroit, 150 N.W.2d 740, 743 (Mich. 1967) (en banc) (“[P]ossession alone has frequently been held, in reference to personal property, as prima facie evidence of ownership.“). As Plaintiffs acknowledge, however, “there are no existing ownership papers” for any of the 14 the firearms. ECF Nos. 2 at PageID.37; 2-6 at PageID.64 (affidavit of Gerald Novak) (“I would provide it, if I had such paperwork, as it would help my lawsuit.“); accord ECF No. 2-7 at PageID.65 (affidavit of Adam Wenzel). But the forfeiture statutes place burdens of proof on Defendant as well. See
In a claim-and-delivery action, however, Plaintiffs believe Defendant must “establish a lawful reason to deny the return of the [firearms].” ECF No. 13 at PageID.1355 (quoting People v. Washington, 351 N.W.2d 577, 580 (Mich. Ct. App. 1984)). Although this Court will not address the myriad of reasons why Washington is inapt here, the most important are that (1) Washington involved the controlled-substances forfeiture statutes, not the OFA; (2) ownership was being claimed by the criminal defendant from whom the property was seized, not a third party; and (3) the police would not return the property after the criminal defendant prevailed in forfeiture. In this way, Washington supports Defendant‘s position that “claim and delivery” is not available to Plaintiffs unless they at least initiate forfeiture proceedings. Other cases also affirm that view. See, e.g., McLeod v. City of Melvindale, No. 04-73202, 2005 WL 2313932, at *2-3 (E.D. Mich. Sept. 21, 2005) (discussing criminal defendant who won judgment for claim and delivery of seized property in state criminal court where forfeiture proceedings were pending).
In reality though, Plaintiffs must prove their title to the firearms in claim and delivery too. Because Plaintiffs did not possess the firearms when they were seized, Plaintiffs could only prevail in a claim-and-delivery action by proving title and thus ownership. F.D. Barton & Co. v. Trumbull, 198 N.W. 186, 187 (Mich. 1924). And if Plaintiffs succeed, then Defendant could still prevail by proving Heinrich has title. Sanford v. Millikin, 107 N.W. 884, 884 (Mich. 1906) (citations omitted).
In sum, both forfeiture and claim and delivery would require a factual determination as to whether Plaintiffs or Heinrich own the firearms. If Plaintiffs do not own the firearms, then they have no related claims under the Second, Fourth, Fifth, or Fourteenth Amendments.
As explained, however, an antecedent issue is whether the factual determination of ownership may be resolved in claim and dеlivery before forfeiture proceedings have
If the Michigan Supreme Court interprets the OFA as requiring Plaintiffs to initiate forfeiture proceedings first, and then Plaintiffs lose, then all their constitutional claims would be avoided. The same is true even if Defendant must initiate forfeiture proceeding. Put another way, if Plaintiffs’ ability or failure to initiate forfeiture forecloses claim and delivery, then “there is an end of the litigation; the constitutional issue[s] do[] not arise.” Id. at 501.
And no case from the Michigan Supreme Court or the Michigan Court of Appeals has directly addressed the relevant statutory language. Granted, for more than 44 years, Michigan courts have recognized that similar statutory “language is clear and unambiguous” in that “the forfeiture statute preclude[s a] plaintiff‘s claim and delivery action.” Derrick v. City of Detroit, 425 N.W.2d 154, 155 (Mich. Ct. App. 1988) (per curiam) (quoting
Because the relevant OFA provisions remain ambiguous, and at least one interpretation of them would moot all of Plaintiffs’ constitutional issues, Pullman abstention is warranted.
B.
1.
Abstention is also required if federal review would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern. Burford v. Sun Oil Co., 319 U.S. 315, 333-34 (1943). Burford abstention applies only if a federal court‘s interpretation of state law is likely to “interfere with the proceedings or orders of state administrative agencies.” New Orleans Pub. Serv., Inc. v. Council of New Orleans (“NOPSI“), 491 U.S. 350, 361 (1989). As the Sixth Circuit has framed it:
The Burford abstention should not be applied unless: (1) a case presents ‘difficult questions of state law bearing on policy problems of substantial public import whose importance trаnscends the result in the case then at bar,’ or (2) the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’
Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002) (quoting Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800 (1976)). To that end, the district court must “balance the state and federal interests at stake,” which “only rarely favors abstention.” Quackenbush v. Allstate Ins., 517 U.S. 706, 728 (1996).
Burford established a discretionary rule of federal abstention that reflects “principles of federalism and comity.” Cleveland Hous. Renewal Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 562 (6th Cir. 2010).
2.
It is well established that “a ‘strong federal interest’ in exercising [federal] jurisdiction.” William Powell Co. v. Nat‘l Indem. Co., 18 F.4th 856, 865 (6th Cir. 2021) (quoting Quackenbush, 517 U.S. at 728).
But substantive Michigan law is at stake here. Id. (“Burford abstention is designed to limit federal interference with the development of state policy. It is justified where the issues sought to be adjudicated in federal court are primarily questions regarding that state‘s laws.” (quoting Tucker v. First Md. Sav. & Loan, Inc., 942 F.2d 1401, 1407 (9th Cir. 1991))).
And this Court is being asked to review state action: the Sherriff‘s choice not to initiate forfeiture proceedings after seizing private property. See NOPSI, 491 U.S. at 361; see also Fragoso v. Lopez, 991 F.2d 878, 883 (1st Cir. 1993) (“Burford abstention is implicated when the federal courts are asked to interfere with state processes by reviewing the proceedings or orders of state administrative agencies.“). Although “courts applying Burford abstention must look to the scope and complexity of state regulatory proceedings,” Christian J. Grostic, Note, A Prudential Exercise, 104 MICH. L. REV. 131, 143 (2005), the Sixth Circuit explicitly held that Burford abstention is not limited “to situations where state administrative agеncies are involved.” Caudill v. Eubanks Farms, Inc., 301 F.3d 661, 661-63 (6th Cir. 2002) (collecting cases). Even so, administrative agencies effectuate Michigan‘s forfeiture system. See
“[T]he key question,” however, “is whether an erroneous federal court decision could impair the state‘s effort to implement its policy.” Cleveland, 621 F.3d at 562 (quoting Saginaw Hous. Comm‘n v. Bannum, Inc., 576 F.3d 620, 626 (6th Cir. 2009)). It could.
If this Court interprets the OFA to permit Plaintiffs to initiate claim and delivery before forfeiture, then as explained above, any person could seek property seized from someone else without going through Michigan‘s forfeiture proceedings by simply pleading a § 1983 action in federal court. See discussion supra Section II.A.1. Obviously, that regime would create a perverse incentive for state-convicted criminals to ask others to retrieve their seized property in federal court. That regime could also encourаge lawyers to seek such cases for the attorney‘s fees that accompany the § 1983 claims, which could also lead to a complete erosion of Michigan‘s forfeiture scheme—and one that would cost Michiganders a lot more money.
And Michigan‘s forfeiture system is complex. See generally Dick Carpenter, Jennifer McDonald & Zachary Popovich, The Complex Process of Civil Forfeiture, CRIMRXIV, Feb. 2022 (explaining why state forfeiture systems, including Michigan‘s,
Even Chief Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals called Michigan‘s forfeiture law “very strange to put [Plaintiffs] in the position of launching a forfeiture action which could end badly” and “doubly strange” if it does not permit Plaintiffs to do so. Oral Argument at 11:56-12:14, Novak v. Federspiel, 2022 WL 3046973 (6th Cir. Aug. 2, 2022) (No. 21-1722), https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/06-09-2022%20-%20Thursday/21-1722%20Gerald%20Novak%20v%20William%20Federspiel%20et%20al.mp3&name=21-1722%20Gerald%20Novak%20v%20William%20Federspiel%20et%20al. Perhaps the Michigan Supreme Court can clear up Judge Sutton‘s expressed concerns.
By all measures then, the wisest course is to ask the Michigan Supreme Court for clarity. This Court recognizes that the Michigan Supreme Court might not see a need for clarity on this question. But when it comes to property rights, federal courts are merely an understudy. See MRP Props. Co. v. United States, 583 F. Supp. 3d 981, 1017 (E.D. Mich. 2021) (“[P]rivate property rights are creatures of state law.” (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972))). And Michigan provides a comprehensive administrative system for determining title to personal property that was seized from a convict: forfeiture. Federal review could disrupt Michigan‘s forfeiture policies.
For these reasons, this Court will stay the case under Burford abstention.
C.
Although abstention is warranted under Pullman and Burford, this Court must consider state certification, for which the case would be stayed. In the Sixth Circuit, if the “state has made certification available,” as Michigan has done, then district courts should “carefully consider this option” before abstaining. Jones v. Coleman, 848 F.3d 744, 753-54 (6th Cir. 2017) (“The Supreme Court has stated a clear preference for certification over Pullman abstention . . . .” (citing Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 77 (1997))).
The Michigan Supreme Court permits federal courts to certify any “question that Michigan law may resolve and that is not controlled by Michigan Suprеme Court precedent.”
But courts should always have an eye toward judicial efficiency. If Plaintiffs lose
This Court has the inherent authority to stay proceedings. Clinton v. Jones, 520 U.S. 681, 706 (1997) (“[T]he District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.“); accord Betancourt v. Indian Hills Plaza LLC, No. 1:21-CV-10436, 2022 WL 3234391, at *2 (E.D. Mich. July 18, 2022).
For this case, the Sixth Circuit flagged “the district court‘s inherent power to manage its docket and stay the resolution of discrete claims until after the state court‘s proceedings have come to a close.” Novak v. Federspiel, No. 21-1722, 2022 WL 3046973, at *3 (6th Cir. Aug. 2, 2022).
Generally, courts сonsider four factors when determining whether to stay a case pending another proceeding: (1) the potential of another case to have a dispositive effect on this case; (2) judicial economy; (3) public welfare; and (4) hardship or prejudice to the parties, given the stay‘s duration. AES-Apex Emp. Servs., Inc. v. Rotondo, No. 13-CV-14519-DT, 2015 WL 12990376, at *1 (E.D. Mich. July 24, 2015) (quoting Michael v. Ghee, 325 F. Supp. 2d 829, 831 (N.D. Ohio 2004)).
The state case and the certified question could both moot this case. There is also a pressing need for delay, from which neither party nor public would suffer. Ohio Env‘t Council v. U.S. Dist. Ct., 565 F.2d 393, 396 (6th Cir. 1977). As Plaintiffs have repeatedly explained, they did not use but “merely stored” the firearms at Heinrich‘s house. And at risk here is Michigan‘s entire forfeiture regime as it relates to third parties. Therefore, this Court will stay the case until Plaintiffs prevail in forfeiture or claim and delivery in the state court, or until the Michigan Supreme Court answers the certified question if it wishes, or until further order of this Court.
So, though abstaining, this Court will stay the case as the Sixth Circuit recommended, maintain jurisdiction, direct the parties to certify questions to the Michigan Supreme Court, and direct the parties to show cause for why they have not initiated forfeiture proceedings in the Seventieth District Court of Saginaw County. Notably, forfeiture proceedings would likely moot certification. But, for whatever reason, the parties want to take the scenic route to resolution.
D.
Incidentally, Plaintiffs have filed duplicative motions for partial summary judgment or, alternatively, a preliminary injunction; the second one is redundant to the first. Compare ECF No. 2, with ECF No. 13. Plaintiff also filed an amended complaint. ECF No. 35. But Plaintiffs did not request leave to file the second motion, as required. E.D. Mich. LR 7.1(b) (requiring parties to “obtain leave of court to file more than one motion for summary judgment“). Nor have they been granted leave to file an amended complaint by this Court or the opposing party, as required.
Yet, given the parties’ greater clarity of the case after appeal, this Court will strike the first summary-judgment motion, not the second one. Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962) (holding that courts have “an ‘inherent power,’ . . . to manage their own affairs so as to achieve the orderly and expeditious disposition of cases” (collecting cases)). Consequently, the Motion for Partial Summary Judgment or Preliminary Injunction, ECF No. 2, will be stricken, and the Amended Complaint, ECF No. 35, will be stricken.
III.
Accordingly, it is ORDERED that the Motion for Partial Summary Judgment or Preliminary Injunction, ECF No. 2, and the Amended Complaint, ECF No. 35, are STRICKEN.
Further, it is ORDERED that, under Pullman abstention, Burford abstention, and this Court‘s inherent authority, this case is STAYED until (1) the disposition of Novak v. Saginaw County Sheriff‘s Office, No. 21-045333-AV (Mich. Cir. Ct. Saginaw Cnty. filed Sept. 3, 2021); (2) Plaintiffs prevail in forfeiture or claim and delivery; (3) the Michigan Supreme Court answers the certified questions; or (4) further order of this Court. If the first, second, or third events occur, then the parties are DIRECTED to notify this Court promptly.
Further, it is ORDERED that the parties are DIRECTED to file the following certified questions in the Michigan Suprеme Court on or before December 27, 2022:
- Must the seizing agency initiate forfeiture proceedings for firearms seized from a person convicted of domestic violence if no third parties express an ownership interest within 28 days of the person‘s guilty plea?
- Does the Omnibus Forfeiture Act preclude the claim-and-delivery action of a purportedly innocent owner of firearms that were seized from another person who was convicted of domestic violence?
- If the seizing agency need not initiate forfeiture proceedings under the Omnibus Forfeiture Act, then must third parties do so before filing a claim-and-delivery action to retrieve the seized property?
Further, it is ORDERED that the parties are DIRECTED to show cause for why they have not initiated forfeiture proceedings in the state district court of Heinrich‘s criminal conviction: the Seventieth District Court of Saginaw County. The briefs must be at least 10 pages and must be filed on or before December 27, 2022.
Dated: November 23, 2022
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge