Government Seizure of Property - Is the law being misapplied?

I was contacted by a distraught elderly woman who indicated that a local police department and the prosecutor's office would not return her automobile to her. A young woman had been driving her car without her permission. The young woman was arrested for drunk driving. The authorities were going to sell her car. Her version of the facts went something like this:

On the night in question, she allowed her grandson to use her car. Later that night her grandson was arrested for disorderly person. At about the same time grandmother's car is in another city 25 miles away being driven by a very drunk young woman. Grandmother had never met the driver of her car.

The police impounded grandmother's car. She was initially told by the prosecutor's office that she could buy back her car for $1,800 because it was used in a crime. If she wanted it, she would have to purchase it back. If not, it would be sold and the proceeds would be added to the government's general budget. The next day she was told that she could not purchase the car back. It was being forfeited i.e., sold.

At this point I'm retained and I contact the prosecutor in charge of forfeitures. She was very helpful and friendly. Her position was the car was being sold that was it.

Q. What about the fourth and fourteenth amendments?

A. We do it all the time. The law developed in Detroit where they forfeit the cars of Johns who try to pick up prostitutes (actually undercover policewomen). There is a statute on point etc.

Q. What about the fact that owner grandmother didn't give permission to the driver and doesn't know the driver?

A. Doesn't matter. Grandson gave permission.

Q. How do you know that?

A. He must have. He got arrested in another city that night.

I filed a motion within the context of the drunk driver's criminal case. That same day, the prosecutor filed paperwork with the district court claiming the right to forfeit and sell.

7 days later the matter is set for hearing. When I checked in with the assistant prosecuting attorney assigned that day, I'm surprised to learn that he agrees with me. His office should not have taken the car. He agrees to a stipulated order for dismissal of the forfeiture action and return of the car to grandmother.

I present the order to the court clerk and the judge asked me to explain to the court gallery (twenty five 4th graders) what this case was about. I explained that grandmother didn't give permission and didn't know the drunk driver who is the bad person here. The law is designed to punish people who do bad things. But the law is also designed to protect the innocent. The judge is signing an order to return the car to grandmother because she did nothing wrong.

But I had to wonder is this law designed to protect the innocent?

It appears to me that this case is not unique. It has become standard policy for police agencies and/or the prosecutor's office to seize people's possessions at the time of the arrest. In a drug case this usually involves taking big screen television sets, computers, any money found, cell phones, cars and sometimes houses. The prosecutor either demands payment for return of the defendant's (or more often than not the defendant's parents') property or a forfeiture action will be filed against the things that have been seized. These are things that are easily sold.

It has also become standard procedure for most people to simply pay the money to get their property back. Many people are dependent upon the things seized. Especially automobiles. They need to get to work or school etc. In addition, most people are not sure what their rights are. Many cannot afford to hire an attorney and they don't want to fight the system. They simply pay the money and put it down as part of the fines and costs of being arrested/convicted of a crime. Like bond money and attorney fees, probation oversight fees, crime victim's rights fees etc.

The statute the prosecutor used in grandmother's case is set forth below. Please note the important language.

"...if the defendant owns the vehicle in whole or in part..."

"...the prosecuting attorney may file a petition..."

"The vehicle may be seized pursuant to an order of seizure issued by the court"...

In other words, this statute has to do with owners of the vehicle. Not anybody who happens to be driving the vehicle. Owners of the vehicle, in whole or in part.

The statute is also discretionary on the part of the prosecutor's office and on the part of the court. May and May. Not must and must.

257.625n Forfeiture of vehicle or return to lessor.

Sec. 625n. (1) Except as otherwise provided in this section and in addition to any other penalty provided for in this act, the judgment of sentence for a conviction for a violation of section 625(1) described in section 625(9)(b) or (c), a violation of section 625(3) described in section 625(11)(b) or (c), a violation of section 625(4), (5), or (7), or a violation of section 904(4) or (5) may require 1 of the following with regard to the vehicle used in the offense if the defendant owns the vehicle in whole or in part or leases the vehicle:

(a) Forfeiture of the vehicle if the defendant owns the vehicle in whole or in part. (b) Return of the vehicle to the lessor if the defendant leases the vehicle. (2) The vehicle may be seized pursuant to an order of seizure issued by the court having jurisdiction upon a

showing of probable cause that the vehicle is subject to forfeiture or return to the lessor. (3) The forfeiture of a vehicle is subject to the interest of the holder of a security interest who did not have

prior knowledge of or consent to the violation. (4) Within 14 days after the defendant's conviction for a violation described in subsection (1), the

prosecuting attorney may file a petition with the court for the forfeiture of the vehicle or to have the court order return of a leased vehicle to the lessor. The prosecuting attorney shall give notice by first-class mail or other process to the defendant and his or her attorney, to all owners of the vehicle, and to any person holding a security interest in the vehicle that the court may require forfeiture or return of the vehicle.

(5) If a vehicle is seized before disposition of the criminal proceedings, a defendant who is an owner or lessee of the vehicle may move the court having jurisdiction over the proceedings to require the seizing agency to file a lien against the vehicle and to return the vehicle to the owner or lessee pending disposition of the criminal proceedings. The court shall hear the motion within 7 days after the motion is filed. If the defendant establishes at the hearing that he or she holds the legal title to the vehicle or that he or she has a leasehold interest and that it is necessary for him or her or a member of his or her family to use the vehicle pending the outcome of the forfeiture action, the court may order the seizing agency to return the vehicle to the owner or lessee. If the court orders the return of the vehicle to the owner or lessee, the court shall order the defendant to post a bond in an amount equal to the retail value of the vehicle, and shall also order the seizing agency to file a lien against the vehicle.

(6) Within 14 days after notice by the prosecuting attorney is given under subsection (4), the defendant, an owner, lessee, or holder of a security interest may file a claim of interest in the vehicle with the court. Within 21 days after the expiration of the period for filing claims, but before or at sentencing, the court shall hold a hearing to determine the legitimacy of any claim, the extent of any co-owner's equity interest, the liability of the defendant to any co-lessee, and whether to order the vehicle forfeited or returned to the lessor. In considering whether to order forfeiture, the court shall review the defendant's driving record to determine whether the defendant has multiple convictions under section 625 or a local ordinance substantially corresponding to section 625, or multiple suspensions, restrictions, or denials under section 904, or both. If the defendant has multiple convictions under section 625 or multiple suspensions, restrictions, or denials under section 904, or both, that factor shall weigh heavily in favor of forfeiture.

(7) If a vehicle is forfeited under this section, the unit of government that seized the vehicle shall sell the vehicle pursuant to the procedures under section 252g(1) and dispose of the proceeds in the following order of priority:

(a) Pay any outstanding security interest of a secured party who did not have prior knowledge of or consent to the commission of the violation.

(b) Pay the equity interest of a co-owner who did not have prior knowledge of or consent to the commission of the violation.

(c) Satisfy any order of restitution entered in the prosecution for the violation. (d) Pay any outstanding accrued towing and storage fees. (e) Pay the claim of each person who shows that he or she is a victim of the violation to the extent that the

claim is not covered by an order of restitution. (f) Pay any outstanding lien against the property that has been imposed by a governmental unit. (g) Pay the proper expenses of the proceedings for forfeiture and sale, including, but not limited to,

expenses incurred during the seizure process and expenses for maintaining custody of the property, advertising, and court costs.

Rendered Monday, December 06, 2010 Page 1 Michigan Compiled Laws Complete Through PA 200 and includes 202-212 of 2010

 Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov(h) The balance remaining after the payment of items (a) through (g) shall be distributed by the court having jurisdiction over the forfeiture proceedings to the unit or units of government substantially involved in effecting the forfeiture. Seventy-five percent of the money received by a unit of government under this subdivision shall be used to enhance enforcement of the criminal laws and 25% of the money shall be used to implement the crime victim's rights act, 1985 PA 87, MCL 780.751 to 780.834. A unit of government receiving money under this subdivision shall report annually to the department of management and budget the amount of money received under this subdivision that was used to enhance enforcement of the criminal laws and the amount that was used to implement the crime victim's rights act, 1985 PA 87, MCL 780.751 to 780.834.

(8) The court may order the defendant to pay to a co-lessee any liability determined under subsection (6). The order may be enforced in the same manner as a civil judgment.

(9) The return of a vehicle to the lessor under this section does not affect or impair the lessor's rights or the defendant's obligations under the lease.

(10) A person who knowingly conceals, sells, gives away, or otherwise transfers or disposes of a vehicle with the intent to avoid forfeiture or return of the vehicle to the lessor under this section is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.

(11) The failure of the court or prosecutor to comply with any time limit specified in this section does not preclude the court from ordering forfeiture of a vehicle or its return to a lessor, unless the court finds that the owner or claimant suffered substantial prejudice as a result of that failure.

(12) The forfeiture provisions of this section do not preclude the prosecuting attorney from pursuing a forfeiture proceeding under any other law of this state or a local ordinance substantially corresponding to this section.

History: Add. 1996, Act 491, Eff. Apr. 1, 1997;Am. 1998, Act 349, Eff. Oct. 1, 1999;Am. 2008, Act 463, Eff. Oct. 31, 2010; Am. 2008, Act 539, Imd. Eff. Jan. 13, 2009.

Rendered Monday, December 06, 2010 Page 2 Michigan Compiled Laws Complete Through PA 200 and includes 202-212 of 2010

 Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov

The Child Custody Pendulum Swing

There was a time when the Mother would be given physical custody of the minor children as a matter of right and Father would be "awarded" visitation every other weekend, pay his child support and get a few hours one evening during the week after dinner.

More recently the Courts have moved away from that position and instead regularly decide that Fathers get more time with their children than they used to in a divorce action. It is thought that the several decades long social policy experiment has resulted in all sorts of problems for children who do not spend a significant amount of time with both parents.

I am aware of two Circuit Court Judges in the area who state in open court that they start with the premise that each parent is entitled to half custody and they want the lawyers or parties to tell them why they should move away from that premise.

This premise can often result strange custody arrangements such as an award of the first three weekends per month to Father from Thursday after school to Monday morning and the rest of the time with Mother. While not equal time (9 overnights for Father vs 21 for Mother), the arrangement does allow Father more significant time with his kids than every other weekend but has the unintended result of providing that Mother do most of the work and Father have most of the fun.

The Courts use the Child Custody Act to determine custody disputes. That law in Michigan is:

722.23 “Best interests of the child” defined.

Sec. 3.

As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

What this means is that in a custody trial, the Court will actually weigh the evidence making a determination for each parents who is better able to do each of the factors above. A sort of list down the page with two sub heads, Father and Mother on the horizontal axis and "a" through "i" on the vertical axis. At the end of the page the totals are added up and the party who has more points or who is better able - wins. However, the court can and does attribute more or less weight to any of the factors it determines appropriate in the circumstances.

Before the court gets to that analysis, it looks to whether there is an "established custodial environment". If there is an established custodial environment in place, the moving party, that is the parent trying to change the current arrangement has the burden of showing there has been a "change in circumstances" sufficient to warrant the court to look into the issues set forth in the child custody act. In other words, if the parents have an arrangement whereby Dad visits every other weekend, and Dad wants more time, he must show that something significant has changed. If the judge determines that a custodial environment has been established, the Judge can only change custody if it is clear and convincing that there has been a significant change in circumstances and that it is in the best interest of the children to change custody.

And it is the moving parties' burden to show by clear and convincing evidence that there has been a change in circumstances. (Clear and convincing evidence is the middle burden in Michigan Law. The lowest burden being "Probable Cause" or "Preponderance" - more than 50% and "Beyond a Reasonable Doubt" being the highest burden). Burden means that the moving party has to show. The non-moving party theoretically does not have to do anything.

There is a move afoot in Michigan as well as other states to make joint custody a matter of law. Robert Kerr of Lansing, launched an effort to require circuit courts to award joint child custody unless there's convincing legal evidence that one of the parents is unfit. He was unable to collect 304,100 signatures to get the matter on the fall ballot.* This matter has been coming for quite some time from the Father's rights advocacy crowd.

From The Detroit News: http://detnews.com/article/20100527/POLITICS02/5270417/1024/POLITICS03/Citizen-petitions-unlikely-to-make-it-onto-ballot#ixzz0qkAkOYNp

http://www.mattwalton.com/