HOUSE BILL No. 4325

 

February 18, 2009, Introduced by Reps. Spade, DeShazor, Lemmons, Tlaib, Leland, Switalski and Bauer and referred to the Committee on Judiciary.

 

     A bill to amend 2004 PA 452, entitled

 

"Identity theft protection act,"

 

(MCL 445.61 to 445.77) by adding sections 14, 14a, 14b, 14c, and

 

14d.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 14. The following property is subject to forfeiture under

 

this act:

 

     (a) Equipment of any kind that is used or intended to be used

 

to commit a felony violation of this act.

 

     (b) Except as provided in subparagraphs (i) to (iii), a

 

conveyance, including an aircraft, vehicle, or vessel used or

 

intended to be used to facilitate the transportation of property

 

described in subdivision (a):


 

     (i) A conveyance used by a person as a common carrier in the

 

transaction of business as a common carrier is not subject to

 

forfeiture unless the owner or other person in charge of the

 

conveyance is a consenting party or privy to a violation of this

 

act.

 

     (ii) A conveyance is not subject to forfeiture by reason of any

 

act or omission established by the owner of that conveyance to have

 

been committed or omitted without the owner's knowledge or consent.

 

     (iii) A forfeiture of a conveyance 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.

 

     (c) Books, records, and research products and materials,

 

including formulas, microfilm, tapes, and data used, or intended

 

for use, to commit a felony violation of this act.

 

     (d) Any thing of value that is furnished or intended to be

 

furnished in exchange for identity information obtained in a felony

 

violation of this act or that is used or intended to be used to

 

facilitate any felony violation of this act, including, but not

 

limited to, money, negotiable instruments, or securities. To the

 

extent of the interest of an owner, a thing of value is not subject

 

to forfeiture under this subdivision by reason of any act or

 

omission that is established by the owner of the item to have been

 

committed or omitted without the owner's knowledge or consent. Any

 

money that is found in close proximity to any property that is

 

subject to forfeiture under subdivision (a), (b), or (c) is

 

presumed to be subject to forfeiture under this subdivision. This

 

presumption may be rebutted by clear and convincing evidence.


 

     Sec. 14a. Property that is subject to forfeiture under this

 

act may be seized upon process issued by the circuit court having

 

jurisdiction over the property. 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.

 

     (b) The property is the subject of a prior judgment in favor

 

of this state in an injunction or forfeiture proceeding under this

 

act.

 

     (c) There is probable cause to believe that the property is

 

directly or indirectly dangerous to health or safety.

 

     (d) There is probable cause to believe that the property was

 

used or is intended to be used to commit a felony violation of this

 

act.

 

     Sec. 14b. (1) If property is seized under section 14a,

 

forfeiture proceedings shall be instituted promptly. However, if

 

the property is seized without process as provided under section

 

14a, 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.

 

     (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 14c.

 

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 act is not subject

 

to an action to recover personal property, but is 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 act, 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 department of state police 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 act 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 act 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 act shall be

 

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

 

This 60-day period shall begin 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 act, the court shall order the return of the money,

 

including any interest earned on money deposited into a financial

 

institution under subsection (2)(d).


 

     Sec. 14c. (1) When property is forfeited under this act, 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

 

14b(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 14 that are forfeited under this act 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).

 

     (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 identity theft 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

 

act, as appropriated by the entity having budgetary authority over

 

the seizing agency.

 

     (c) Forward it to the department of state police for

 

disposition.

 

     (2) In the course of selling real property under subsection

 

(1)(b), 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

 

may do 1 or more 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.

 

     (3) If a court enters an order of forfeiture, the court may

 

order a person who claimed an interest in the forfeited property

 

under section 14b(1)(c) to pay the expenses of the proceedings of

 

forfeiture to the entity having budgetary authority over the

 

seizing agency.

 

     Sec. 14d. (1) Before February 1 of each year, each local unit


 

of government that had forfeiture proceedings pending in the

 

circuit court under section 14b; or effectuated a forfeiture of

 

property under section 14b without a forfeiture proceeding in the

 

circuit court; or received money, negotiable instruments,

 

securities, or any other thing of value under section 14c during

 

the fiscal year for the local unit of government ending in the

 

immediately preceding calendar year shall submit a report to the

 

state attorney general 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 act 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 act 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 either of the


 

following, as applicable:

 

     (i) 1919 PA 71, MCL 21.41 to 21.55.

 

     (ii) The uniform budgeting and accounting act, 1968 PA 2, MCL

 

141.421 to 141.440a.

 

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

 

government under section 14c, 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 14, 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 under section 14c(1)(b)(ii) has been used or is

 

being used to enhance the law enforcement efforts pertaining to

 

this act.

 

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

 

subsection (1) regarding the forfeiture of property under this act

 

shall be audited in accordance with 1 of the following, as

 

applicable:

 

     (a) 1919 PA 71, MCL 21.41 to 21.55.


 

     (b) The uniform budgeting and accounting act, 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 act

 

may be audited by an auditor of the local unit of government.

 

     Enacting section 1. This amendatory act takes effect November

 

1, 2009.