PEOPLE OF MI V 1996 JEEP
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
August 23, 2002
9:00 a.m.
Plaintiff-Appellant,
No. 229305
Wayne Circuit Court
LC No. 00-090516-CF
v
1987 MERCURY,
Defendant,
and
JAMES EDWARD CRAEMER III,
Claimant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 229307
Wayne Circuit Court
LC No. 00-090505-CF
1996 JEEP,
Defendant,
and
NICHOLE LOCH,
Claimant-Appellee,
Updated Copy
October 25, 2002
and
CHRYSLER FINANCE,
Claimant.
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Before: Gage, P.J., and Cavanagh and Wilder, JJ.
GAGE, P.J.
These consolidated appeals present the question of first impression whether Michigan's
statutory drug forfeiture scheme authorizes that a prevailing claimant be held liable for the
charges incurred in the towing and storage of his vehicle during the pendency of a drug forfeiture
action. The prosecutor appeals as of right from circuit court orders providing that the successful
claimants had no liability for towing and storage fees pursuant to the drug forfeiture statutes. We
affirm.
I
During the early months of 2000, law enforcement officials separately seized the vehicles
involved in this case.
A
In Docket No. 229305, the Wayne County Sheriff seized a 1987 Mercury owned by
claimant James Edward Craemer III. The prosecutor's complaint for a judgment of forfeiture
alleged that the vehicle's seizure occurred on the basis of "probable cause to believe that it was
subject to seizure under the narcotics forfeiture laws." The complaint reflected that the Wayne
County Sheriff was holding the Mercury "pending the resolution of this civil in rem forfeiture
action."
A trial regarding the prosecutor's complaint occurred on May 25, 2000. The circuit court
granted claimant's motion for a directed verdict and entered a judgment dismissing the
complaint. Claimant filed a motion for reconsideration with respect to a portion of the judgment
of dismissal mandating that he pay $500 in towing and storage charges. According to claimant,
the circuit court improperly assessed towing and storage costs against him because the drug
forfeiture statutes did not authorize the imposition of these costs on a prevailing claimant.
The prosecutor responded that (1) while MCR 2.625 prevented a nonprevailing party, i.e.
the prosecutor, from recovering costs incurred during an action, MCR 2.625 was not implicated
in this case because the towing and storage fees were incurred by the towing company, "a
remote, private, third-party entity with no connection or control over the litigation" that had
"rendered a service . . . pursuant to a contract"; (2) equity and the drug forfeiture statutes vested a
court hearing a forfeiture case with "the discretion, post-hearing, to ensure that the ancillary costs
such as towing and storage expenses incurred by disinterested parties are paid," especially in a
case in which the officers had reasonable cause to seize the Mercury and the expenses involved
were owing to an innocent third party; and (3) the police had the authority, under MCL
257.252d, to tow the Mercury for public safety reasons and because the police had reason to
believe that the Mercury had been used in the commission of a crime, specifically the purchase
of illegal narcotics.
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The circuit court consolidated its ruling regarding the towing and storage expenses in
Docket No. 229305 with its ruling addressing the expenses in Docket No. 229307.
B
In Docket No. 229307, the Detroit Police Department seized the 1996 Jeep owned by
claimant Nichole Loch on the basis of probable cause to believe that it likewise was subject to
seizure under the drug forfeiture laws. The prosecutor alleged that the Jeep's driver, Jack Barrett
II, approached an undercover officer and asked for a bag of weed. The police arrested Barrett for
disorderly conduct.
Claimant responded to the prosecutor's complaint seeking forfeiture that MCL
333.7521(d)(iii) specifically exempted from seizure and forfeiture vehicles involved in
marijuana-related offenses. Following claimant's failure to appear for an expedited trial, the
court entered a default judgment against her, but shortly thereafter granted claimant's motion to
set aside the judgment. After a June 22, 2000, trial, the circuit court dismissed the prosecutor's
complaint, but provided that claimant should pay $600 in towing and storage costs. Claimant
sought reconsideration of the court's order with respect to towing and storage fees.
C
On July 11, 2000, the circuit court held a hearing addressing the liability of both
successful claimants for the towing and storage fees of their vehicles. The court expressed some
uneasiness regarding its ruling, but ultimately concluded that the drug forfeiture statutes did not
authorize the imposition of towing and storage fees on prevailing claimants. The court reasoned
as follows:
The whole statutory scheme set up to deal with forfeiture is extensive and
almost exhaustive, and it gives the Court the authority specifically to order these
payments by a claimant who loses.
The authority is given by statute.
A similar authority is not given to assess costs against a prevailing
claimant. I mean, when the statutory scheme is this complete, and it indicates that
you had authority to order a losing claimant to pay, but doesn't give the authority
for a prevailing claimant to pay, I don't think the language that I cited, or
arguments of equity come into play under these circumstances.
* * *
. . . I am not happy with this ruling. I think this ruling has potentially dire
public consequences, public policy consequences, because . . . the Prosecutor has
an obligation under the law to pursue these matters, and they, in effect, would
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become a guarantor of victory, or would attempt to do that in bringing these cases,
even when they have clear probable cause to seize the vehicle.
That's why I'm uncomfortable with this ruling, but I don't think I've got the
authority to do it. I certainly would indicate that an appeal of this Court's order is
in order without question.
On August 1, 2000, the court entered separate but similar orders dismissing each case, granting
claimants' motions for reconsideration regarding towing and storage costs, and ordering that
claimants had no liability for any applicable towing and storage fees.
II
The prosecutor challenges the circuit court's interpretation of the drug forfeiture scheme
by making several arguments in support of the circuit court's authority to assess towing and
storage costs against a prevailing claimant. We review de novo the legal questions raised by the
prosecutor, which include issues of equity and statutory interpretation. Little v Kin, 249 Mich
App 502, 507; 644 NW2d 375 (2002); Saginaw Co v John Sexton Corp of Michigan, 232 Mich
App 202, 214; 591 NW2d 52 (1998).
A
When presented with questions of statutory interpretation, a court's obligation is to
discern and give effect to the Legislature's intent as expressed in the words of the statute.
Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). This Court begins a
statutory construction analysis by consulting the specific statutory language at issue. In re MCI
Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
We give the words of a statute their plain and ordinary meaning, looking
outside the statute to ascertain the Legislature's intent only if the statutory
language is ambiguous. Where the language is unambiguous, "we presume that
the Legislature intended the meaning clearly expressed—no further judicial
construction is required or permitted, and the statute must be enforced as written."
[Pohutski, supra at 683 (citations omitted).]
See also In re MCI, supra.
B
The circuit court correctly observed that a comprehensive statutory scheme within the
controlled substances act, MCL 333.7101 et seq., governs drug forfeiture proceedings. Section
7521 describes the various types of property subject to forfeiture, including vehicles "used or
intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of
sale or receipt of" illegal controlled substances and other items related to illicit drug manufacture
and trafficking. MCL 333.7521(d). Section 7522 provides for a law enforcement unit's seizure
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of property made subject to forfeiture under 7521. A "circuit court having jurisdiction over the
property" may issue process authorizing seizure, or property may be seized absent process under
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 article or pursuant to section
17766a.
(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 in violation of this article or section 17766a. [MCL 333.7522
(emphasis added).]
Section 7523 governs the conduct of forfeiture proceedings. In cases involving seizure
without process, the unit of government that performed the property seizure must provide the
property owner written notice of the seizure and the governmental unit's intent "to forfeit and
dispose of the property." MCL 333.7523(1)(a). A person who claims an interest in the seized
property has twenty days after receiving notice to file a claim describing his interest. MCL
333.7523(1)(c). A claimant must give to the governmental unit that seized the property a bond
amounting to ten percent of the seized property's value, "but not less than $250.00 or greater than
$5000.00," subject to the condition "that if the property is ordered forfeited by the court the
obligor shall pay all costs and expenses of the forfeiture proceedings." Id. Forfeiture
proceedings must commence promptly following expiration of the twenty-day claim period. Id.
Seized property "shall 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." MCL 333.7523(2).
Section 7524 addresses the disposition of forfeited property. Once forfeiture occurs, the
governmental unit that seized the property has several options to dispose of the property, which
include keeping the property for official use and selling whatever property the law does not
require to be destroyed and "is not harmful to the public." MCL 333.7524(1)(a) and (b).1 The
governmental unit must direct proceeds from the sale of forfeited property to "the treasurer of the
entity having budgetary authority over the seizing agency," which must apply the proceeds as
follows:
1
The governmental unit that seized the property also may require an administrator "to take
custody of the property and remove it for disposition in accordance with law," MCL
333.7524(1)(c), or "[f]orward it to the bureau for disposition." MCL 333.7524(1)(d).
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(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. . . .
The money received under this subparagraph and all interest and other earnings
on money received under this subparagraph shall be used to enhance law
enforcement efforts pertaining to this article or section 17766a . . . . [MCL
333.7524(1)(b).]
Pursuant to subsection 7524(4), and apparently in lieu of requiring the application of proceeds
from the sale of forfeited property to pay forfeiture proceeding expenses pursuant to MCL
333.7524(1)(b)(i), a court that enters a forfeiture order "may order a person who claimed an
interest in the forfeited property pursuant to section 7523(1)(c) to pay the expenses of the
proceedings of forfeiture to the entity having budgetary authority over the seizing agency."
C
In accordance with the well-established rules of statutory interpretation, we begin our
analysis by emphasizing the fact that the statutory drug forfeiture scheme discussed above
simply lacks any provision even suggesting that a prevailing claimant should bear responsibility
for towing and storage fees incurred with respect to an ultimately unsuccessful forfeiture action.
A review of the drug forfeiture statutes offers a strong indication to the contrary that the
Legislature intended to insulate prevailing claimants from paying towing and storage costs. The
Legislature included several provisions addressing the payment of forfeiture-related expenses
following a successful forfeiture action: (1) Subsection 7523(1)(c) explains that the bond given
by a claimant must be "conditioned that if the property is ordered forfeited by the court the
obligor shall pay all costs and expenses of the forfeiture proceedings" (emphasis added), (2)
subsection 7524(1)(b)(i) demands that when a court orders forfeiture of property, the
governmental unit that seized the property must first apply the proceeds of its sale towards the
expenses of the forfeiture proceedings, and (3) subsection 7524(4) plainly sets forth that "[i]f a
court enters an order of forfeiture, the court may order" that the unsuccessful claimant pay for
the expenses of the forfeiture proceedings. (Emphasis added.) The fact that the Legislature
specifically considered the assessment of drug forfeiture expenses against claimants, yet
explicitly chose to impose the assessment against only one limited class of claimants, specifically
losing claimants, strongly signals that the Legislature rejected the notion that a prevailing
claimant should suffer the expenses occasioned by a prosecutor's initiation of an ultimately
unsuccessful forfeiture action. See Stokes v Millen Roofing Co, 245 Mich App 44, 60; 627
NW2d 16 (2001) (observing that the Legislature is presumed to be aware of the consequences of
the use or omission of language when it enacts laws), rev'd on other grounds 466 Mich 660; 649
NW2d 371 (2002); Alcona Co v Wolverine Environmental Production, Inc, 233 Mich App 238,
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247; 590 NW2d 586 (1998) ("In examining the plain language of a statute, the maxim . . . the
expression of one thing is the exclusion of another, means that the express mention of one thing
in a statute implies the exclusion of other similar things."); see also Farrington v Total
Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) ("Courts cannot assume that the
Legislature inadvertently omitted from one [portion of a] statute the language that it placed in
another statute, and then, on the basis of that assumption, apply what is not there.").
"A court must not judicially legislate by adding into a statute provisions that the
Legislature did not include." In re Wayne Co Prosecutor, 232 Mich App 482, 486; 591 NW2d
359 (1998). Because the Legislature plainly did not authorize within the statutory drug forfeiture
scheme the imposition of towing and storage fees on a successful claimant, we simply will not
judicially legislate such a provision ourselves. Pohutski, supra (observing that courts cannot
speculate regarding an unstated purpose where unambiguous text plainly reflects the
Legislature's intent); Farrington, supra at 210 (noting that "this Court may not do on its own
accord what the Legislature has seen fit not to do"); Stokes, supra (declining to read into a statute
an exception that the Legislature did not see fit to include).
D
We decline the prosecutor's invitation to read into the statutory scheme an equitable
exception, which would permit a circuit court to assess against prevailing claimants the towing
and storage charges incurred during an unsuccessful forfeiture action, in situations where the
governmental unit had probable cause to seize the property. The prosecutor cites In re Forfeiture
of $30,632.41, 184 Mich App 677; 459 NW2d 99 (1990), for the proposition that this Court may
resort to equity to remedy an unfair result. In In re Forfeiture of $30,632.41, this Court affirmed
a circuit court's award of interest on money recovered by a prevailing forfeiture claimant. This
Court explained that although the "forfeiture statute is silent on the issue of interest," the circuit
court properly exercised its powers of equity to prevent the plaintiff from obtaining a windfall.
Id. at 679. We find the instant case distinguishable, however, because, as we emphasized above,
the Legislature did not offer only silence with respect to a claimant's liability for forfeiture
expenses. The Legislature apparently considered the question of claimant liability and ultimately
limited liability for forfeiture expenses to losing claimants only.
Moreover, we do not agree with the prosecutor's characterization of the instant claimants
as having "dirty hands." Due to no apparent wrongdoing on their part, claimants endured the
inconvenience of losing the use of their vehicles for several months before finalization of the
unsuccessful forfeiture proceedings, and the inconvenience and expense involved in contesting
the forfeiture proceedings. After law enforcement agencies seized their vehicles, claimants
remained the owners of these vehicles. In re Forfeiture of $176,598, 465 Mich 382, 387-388;
633 NW2d 367 (2001). Accordingly, during the periods that their vehicles were held in the
custody of the governmental agencies that seized them, claimants remained obligated to pay the
expenses associated with vehicle ownership, such as lease or loan payments and insurance
premiums. Under these circumstances, we do not view as inequitable the fact that the instant
claimants were protected from further enduring the towing and storage fees incurred during the
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unsuccessful forfeiture actions, irrespective that law enforcement may have possessed probable
cause to believe that claimants' vehicles were subject to seizure.2
Furthermore, we do not find persuasive the prosecutor's references to the unfairness that a
grant of immunity to prevailing forfeiture claimants would visit on the innocent third party
towing companies who have provided their services. The circuit court expressed its skepticism
of this claim by observing at the hearing that "the citizens of the County of Wayne would be
paying through your office," to which the prosecutor responded that "in some situations I know
that the seizing agency has a contract with the towing and storage company." The prosecutor
also acknowledged in Docket No. 229305, in a memorandum responding to claimant Craemer's
motion for reconsideration, that the towing and storage fees represented "an expense incurred by
Mayflower Towing, an [sic] private, third-party company which contracts with the Canton Police
Department to service the department's vehicle towing and storage needs."3
E
We additionally note that the prosecutor failed to provide persuasive authority
undermining our interpretation of the drug forfeiture statutes. The prosecutor cited Cefalu v
Village of Elk Grove, 211 F3d 416 (CA 7, 2000), for the proposition that even though a statute or
court rule might address the propriety of awarding a particular cost incurred by the prevailing
party, a court nonetheless possesses equitable authority to deny reimbursement. No parallel
exists, however, between Cefalu and the instant case. In Cefalu, the defendants, who prevailed at
trial, cross appealed the district court's refusal to award them certain costs pursuant to FR Civ P
54(d). The Seventh Circuit Court of Appeals concluded that the costs sought by the prevailing
defendants fell into a category of costs authorized by statute, but that the district court did not
abuse its discretion in denying reimbursement because "Rule 54(d) makes quite clear that
although there is a presumption in favor of a cost award to the prevailing party, the district court
retains the discretion to direct otherwise." Cefalu, supra at 429. Cefalu involved a distinct court
rule that, unlike Michigan's drug forfeiture statutes, specifically authorized the district court's
exercise of discretion with respect to the prevailing party's costs.
The prosecutor also attempted to equate the instant case to Breath v Cronvich, 729 F2d
1006 (CA 5, 1984), which "revolve[d] around the practice in Jefferson Parish [Louisiana] of
towing and impounding illegally-parked vehicles and assessing towing and storage fees before
2
We note our failure to comprehend why claimant Loch declined an expedited trial in her case
or claimants' "insistence that the charges fall within the loose general rule of prevailing party not
paying costs" should tip the scales of equity against claimants, as the prosecutor argues. Our
review of the lower court records reveals that neither claimant engaged in undue delay of the
proceedings or advanced any frivolous legal position.
3
The prosecutor attached to its memorandum the affidavit of Thomas Rey, manager of
Mayflower Towing, who similarly averred that the towing company, "as a private company, has
a contract with the Canton Police Department to handle its vehicle and towing matters."
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the vehicles are released to their owners." Id. at 1008. The Fifth Circuit Court of Appeals held
that Louisiana's statutory towing and impoundment scheme comported with procedural due
process requirements because the owners of towed vehicles were afforded the opportunity to
regain possession of their vehicles pending a hearing by posting an appearance bond and the
right to a hearing on the validity of their parking tickets. Id. at 1011-1012. Contrary to the
prosecutor's suggestion, Breath simply does not stand for the proposition that in every case a
governmental unit may assess towing and storage fees against a vehicle owner whose vehicle
was towed.
We lastly address the prosecutor's contention that the legislative intent reflected within
MCL 257.252d supports the imposition of towing and storage fees on prevailing claimants in a
drug forfeiture action. According to subsection 252d(1), the police "may provide for the
immediate removal of a vehicle from public or private property . . . at the expense of the
registered owner" in several circumstances, including when reasonable cause exists "to believe
that the vehicle was used in the commission of a crime." Subsection 252d(1)(e). We note with
respect to the prosecutor's argument, however, that MCL 257.252d, a provision located within a
special antitheft subdivision of Chapter II of the Michigan Vehicle Code, MCL 257.1 et seq., has
no application in this case because we find no indication in the record that claimants' vehicles
were towed pursuant to MCL 257.252d. The prosecutor's complaints mentioned only drug
forfeiture provisions located within Article 7 of the Public Health Code.4
III
Because the drug forfeiture statutes plainly do not authorize the assessment of towing and
storage costs against prevailing claimants in a drug forfeiture action, we conclude that the circuit
court correctly ordered that claimants had no responsibility for towing and storage fees.
Affirmed.
/s/ Hilda R. Gage
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
4
Moreover, even attempting to follow the prosecutor's analogy, we do not find MCL 257.252d a
persuasive basis for the prosecutor's conclusion that a successful claimant in a drug forfeiture
action should bear responsibility for towing and storage fees. Subsection 252d(3) permits a
registered owner to request a hearing regarding the propriety of the removal of his vehicle and
"the reasonableness of the towing fees and daily storage fees." "If the court finds that the vehicle
was not properly removed, the police agency shall reimburse the owner of the vehicle for the
accrued towing and storage fees." Id. (emphasis added).
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