HB-4629, As Passed House, March 22, 2016

SUBSTITUTE FOR

HOUSE BILL NO. 4629

     A bill to amend 1978 PA 368, entitled

"Public health code,"

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

section 7523 as amended by 2006 PA 130 and section 7524 as amended

by 2011 PA 161.

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 this 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 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 this 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

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).

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

section 7523(1)(d):

     (a) Retain it the property for official use.

     (b) Sell that which is the property that is not required to be

destroyed by law and which that 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 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).

     (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 only for law enforcement purposes, 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, funds otherwise budgeted

for law enforcement purposes.

     (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.

     (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 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) 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 is entitled to reasonable compensation. The

receiver shall have has 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.

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

order a person who claimed an interest in the forfeited property

under section 7523(1)(c) to pay the expenses of the proceedings of

forfeiture to the entity having budgetary authority over the

seizing agency.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.