The High Cost of Low Court Appointed Attorney Fees By Arthur A. Garton, MCBA President
In June of 2008, the National Legal Aides and Defender Association concluded it's evaluation of the trial-leve indigent defense systems in Michigan. The conclusion that public defenders and court appointed attorneys are overworked and underpaid isn’t a surprise. What does surprise me is how poorly the State of Michigan ranks in comparison to the rest of the country. Michigan finished 44th out of 50, spending 38% less than the national average. This is an embarrassment without justification.
It should be no surprise that pay for court appointed attorneys seldom, if ever, makes its way beyond a conversational level. Certainly court appointed attorney fees never seem to make it on the priority list for any legislative body. Court appointed attorneys in Macomb County are working off a fee schedule that is decades old with the exception of nominal increases. Compounding this problem is that the accused, as a group, are simply not a sympathetic class of people. I am certain all of you have run across individuals who feel that people accused of crimes should not get any legal representation whatsoever, let alone representation funded by their favorite tax dollars. Coupled with the current economic climate, is it any wonder that we find ourselves in this situation? However, the economic climate and lack of funds have not precluded the building of two beautiful courthouses in the past year. Apparently speed, decorum and perceived savings are our priorities.
Any argument that it is all about economics is totally misplaced. The inherent conflict created by a system whereby an attorney diligently represents a client at the attorney’s expense cannot be ignored. Never has being penny wise and pound foolish more applicable than when the government looks to save monies by short changing attorney fees rather than reduce incarceration.
The savings realized by reduced incarceration as a result of better representation on the front end will more than offset an increase in court appointed fees. While the counties foot the bill initially, the state clearly suffers the end result. The cost of one year of incarceration is approximately $30,000. The cost of wrongfully convicted individuals far outweighs the cost of having adequate representation. Why then, with the astronomical costs associated with incarceration, does the government attempt to save dollars by undercutting fees, making an attorney choose between diligently representing his/her client or going broke in the process?
Another equally important consideration has to be the lack of respect for court appointed attorneys. One only has to watch TV, read the papers, or even sit around the courthouse to hear snide remarks and innuendos about “court appointed attorneys” to get the feeling that they are less than a “real attorney.” Is it any wonder, given the current fee schedules, that this perception is so prevalent? This perception embarrasses all of us. The legal profession should be proud that we have court appointed attorneys who day in and day out fight the battle to ensure that their clients get a fair shake from the system.
Voltaire said “It is better to risk saving a guilty person than to condemn an innocent one.” Sir William Blackstone said “It is better to set ten guilty men free than to convict one innocent man.” These principles are the bedrock of our legal system, although I wonder whether these principles are frequently overlooked. While the general public/tax payers/legislatures may be short-sighted in their beliefs, there is no excuse for the attorneys to be so short-sighted.
The Constitution promises adequate representation to all those accused of a crime. The State of Michigan and the respective counties need to do more than pay lip service to this fundamental right.
No-Fault: Benefiel v Auto Owners Insurance - An Analysis
By Kristen J. Kosciolek, Martin Bacon & Martin PC
Before the ink was even dry on the decision, lawyers were talkign about Benefiel. For lawyers, the significance of case law is clear when it is commonly referred to by its first name only, i.e. Kreiner and Daubert. We also know a case is significant when it contains a key phrase which is repeated ad nauseum in our briefs, arguments and conversations. Benefiel has such potential.
In a unanimous decision, the Court of Appeals in Benefiel v Auto-Owners Insurance Company, 277 Mich.App. 412 (2007), outlined a test to determine a plaintiff’s normal, pre-accident life under the Michigan No-Fault Act as well as the Michigan Supreme Court’s interpretation under Kreiner v Fischer, 471 Mich. 109 (2007) of the serious impairment issue when multiple accidents are involved. In Benefiel, the plaintiff sued for noneconomic damages based on a serious impairment of a body function that he allegedly sustained as a result of the second of two car accidents. Of interest is that the Court noted that the actual extent of the injuries caused by the second accident was difficult “if not impossible” to separate from the injuries sustained as a result of the first accident. The Court ultimately held that plaintiff’s normal “pre-accident lifestyle should not be limited to the timeframe following the first accident.”
The Court went on to note that the evidence failed to establish that the injuries plaintiff sustained in the first accident resulted in a “catastrophic, permanent, residual impairment physically incapable of healing;” a phrase sure to be quoted tirelessly in future briefs by this Bar. While the Court failed to provide a formula for applying this new legal phrase of art to future cases, it did provide the following two hypotheticals to demonstrate how the rule would apply:(1) Plaintiff breaks his leg in the first accident. This is an injury that one would expect a full recovery; however, due to the second accident, it was not given an opportunity to heal and a court must look to the plaintiff’s whole life before the first accident when determining “normal” pre-accident life under Kreiner. (2) Plaintiff loses his leg in the first accident. This is an injury not capable of complete recovery. When plaintiff is later injured in a second accident, the court should look at plaintiff’s life after the first accident for comparison as to whether or not the second accident affected the course of plaintiff’s “normal” life under Kreiner.
In applying this analysis to the facts of Benefiel, the Court found that under Kreiner, plaintiff’s “normal” lifestyle must consider his life before the first accident. It found that the “second accident imposed a medical regime on plaintiff that made completing the course of treatment from the first accident, as well as full recovery from the injuries sustained in the first accident, physically impossible. In other words, as a direct result of the second accident, plaintiff lost all opportunity to heal and become pain-free after the first accident without being burdened by further complications or any additional conditions he sustained due to the second accident.”
With the Benefiel rule in place, cases involving multiple vehicle accidents will likely become a battle of the experts, and maybe dictionaries, as to what in fact is “catastrophic”, “permanent” and “residual impairment physically incapable of healing.”
While the full impact of Benefiel remains to be seen, less than two months after the decision was issued, a different panel of the Court of Appeals unanimously decided the matter of Al-Sayad v Farm Bureau General Insurance Company of Michigan, unpublished decision per curium of the Michigan Court of Appeals, Docket No. 275031 dated 2/12/08. Al-Sayad fails to apply the new Benefiel “rule” to a multiple vehicle accident case and fails to even acknowledge the decision. The Al-Sayad Court applied the pre-Benefiel rule which generally compared a plaintiff’s life following the second accident with their lives following the first accident.1 Why this panel failed to follow or address Benefiel is a mystery.
In essence, whether or not the new Benefiel rule becomes an oft cited phrase in legal briefs and referred to endlessly by its “first name only” is yet to be seen. Defendant Auto-Owners Insurance filed leave to appeal on February 6, 2008 and briefs for such leave, and in opposition, were filed before March 17, 2008. Bright line test or hiccup? We shall see.
1 The following unpublished cases, in date order, were post-Kreiner and involved claims from multiple car accidents: Moceri v Kondziolka, unpublished opinion per curium of the Michigan Court of Appeals, Docket No. 261237, dated 9/20/05; Law v Novak, unpublished opinion per curium of the Michigan Court of Appeals, Docket No. 254869, dated 10/13/05; Webb v Reece, unpublished opinion per curium of the Michigan Court of Appeals, Docket No. 262594, dated 10/20/05; Lester v Castle, unpublished opinion per curium of the Michigan Court of Appeals, Docket No. 267640, dated 6/15/06; Rideout v Selvidge, unpublished opinion per curium of the Michigan Court of Appeals, Docket No. 259937, dated 8/1/06; and Benedict v State Farm, unpublished opinion per curium of the Michigan Court of Appeals, Docket No. 265595, dated 11/28/06.
Circuit Court Corner
By Keith R. Beasley, 16th Circuit Court Administrator
Festivals
An attorney contacted me during the Stars and Stripes Festival in July with a valid concern that she did not have notice that access to the Circuit Court building was going to be restricted for two business days due to the festival. She unexpectedly had to walk several blocks and was delayed. Also, she was concerned how clients, especially clients who may be handicapped, would access the building.
The festivals are outside our control since they are put on by Mount Clemens. We don’t have a way of sending notices to attorneys and parties of festival days. Our computer generated notices can’t easily be modified to do this. I can at least tell you about them in this column. The Bath City Festival is coming up. On August 21 and 22nd you can expect access to the building to be restricted.
Indigent Representation Billings
Macomb County pays nearly $5 million for indigent representation annually. In order to be stewards of the public trust, we attempt to recoup attorney fees from those with some ability to pay. Constitutional rules require notice and an opportunity to be heard on the assessment of defense costs at sentencing in criminal cases. We attempt to provide notice of the amount billed by counsel by obtaining that information from appointed attorneys at least two weeks before sentencing. Some attorneys are not cooperating in that effort. In the absence of a billing, there is either no assessment or an estimate is made, often far less than the actual billing. Macomb County is losing the opportunity to recoup a lot of money as a result. Following the billing practices is a duty of counsel desiring to receive appointments. Judicial Aide will be taking steps to enforce that duty. Please help in this effort.
Intellectual Property By Brian Wassom, Honigman, Miller Schwartz and Cohn LLP
Intellecutal property, or "IP", is often the most valuable thing a client owns. But many attorneys could not explain to their clients the difference between a copyright and a trademark, let alone how to protect them or avoid infringing the IP of others. The following primer offers a few basics that all practitioners should keep in mind.
Copyright
Copyrights protect creative expression—books, movies, photographs, paintings, architectural designs, sculptures, music, even choreography. It does not protect ideas—only particular expressions of ideas. To merit copyright protection, the “work” in question must be “fixed in a tangible medium”—e.g., paper, canvas, or a computer file—and contain the author’s own original expression. Elements of the work that are not original or creative (such as the physical objects depicted in a photograph, or generic components in a blueprint or lyric) are “filtered out” of the copyright.
Authors automatically own the copyright to their works when they are created. In order to enforce that right, however, it must be registered with the U.S. Copyright Office (copyright.gov). The form is simple and costs only $40. It is best to register within 3 months of publication, to maximize the chance of recovering attorneys’ fees and statutory damages in an infringement suit. Your clients have virtually no reason not to register their websites, publications, and other expressive materials. They should also check periodically to see if others are copying their works.
Copyrights generally last for the author’s life plus 70 years. They give their owners 5 basic rights—to control the reproduction, display, performance, distribution, and adaptation of their works. Each can be separately licensed. But this cuts both ways; be sure that the works your clients use are licensed. For example, several local restaurants have been sued for performing copyrighted music without a license, including one near the county courthouse.
Trademark
Trademarks are indicators of source. They tell consumers who is providing a certain product or service. Logos, trade names, slogans, and packaging are all common examples. When someone sees the Golden Arches, for example, they know they’ll get a Big Mac instead of a Whopper.
Clients develop rights in a trademark by using it in commerce. The first to use it in a particular market has priority. Federal registration (which can be done electronically at uspto.gov) isn’t strictly necessary, but offers several advantages, such as presumptive nationwide rights and more options for recovering damages.
The boundaries of trademark rights are somewhat fuzzy. Your client infringes another’s mark if its mark is “likely to cause confusion in the marketplace” with the other mark. That is a fact-specific question that depends on how similar the marks appear, and several factors concerning how they are used. Disputes are often resolved through “mutual co-existence agreements,” in which the parties take measures to prevent customer confusion.
Owners of “strong” marks can sue for dilution of their mark, in addition to infringement. But one who is lax in enforcing their rights can be at risk of abandoning them. Therefore, famous marks are often aggressively enforced—as a Mt. Clemens shop using a green-and-white circular logo found out when Starbucks’ attorneys came knocking.
Protecting the goodwill of your client’s mark, and avoiding infringement of others’ marks, requires careful market research and informed counsel.
Patent
This is what most attorneys mean when they say “IP,” but it’s really just one piece of the patchwork. Patents give inventors of useful devices or methods the exclusive right to control their inventions. The rights last for 20 years from the filing date of the application. Unlike with other IP rights, federal registration is vital to protecting a patent. Inventors generally have one year from the date that they first publicly reveal their invention to apply for a patent.
Macomb County is home to scores of manufacturers and inventors who need informed patent advice. You’ll need someone who’s admitted to the Patent Bar to prosecute a patent application.
Right of Publicity
This is an individual’s right to control the use of their own likeness in commercial advertising. It grew out of the common law of privacy, so it is governed by the states rather than federal law. Some states have statutes on point; in Michigan, it is still a common law right. In fact, most of Michigan’s law on this topic has been “predicted” by federal courts.
As such, the right’s boundaries are unclear. Using a photo of a celebrity on a product probably infringes the celebrity’s publicity right—and photograph cases are usually where the right is asserted. Be sure your clients obtain both the copyright and publicity rights when buying or licensing photos.
But a local federal judge held last year that Activision did not violate The Romantics’ rights by allegedly mimicking their “sound” in the game Guitar Hero, because (among many other things) Michigan’s right of publicity doesn’t cover voices. Our local federal appellate court has also ruled that average Joes do not have a right of publicity—only celebrities whose likenesses have monetary value. And both it and the Activision court expressed serious concern that taking this right too far intrudes into the First Amendment’s protection of free speech and commentary on public issues.
There is, of course, much more to say about these and related IP fields. But these basic principles should help you spot issues and help your clients protect their valuable IP assets.
Brian D. Wassom is a MCBA member and a partner at Honigman Miller Schwartz and Cohn LLP in Detroit. He is a litigator practicing primarily copyright, trademark, media, and entertainment law, including some of the cases mentioned here.
Applying Kreiner One Case at a Time By Brian J. Bourbeau, Bone, Bourbeau & Bourbeau PLLC
In July 2004, the Michigan Supreme Court handed down Kreiner v. Fischer and Straub v. Collette, 471 Mich 109, 683 N.W.2d 611 (2004). It is doubtful that Richard Kreiner and Daniel Straub could have imagined that their injuries would be described in thousands of legal briefs regarding the serious impairment of body function threshold. However, the decision in Kreiner calls for a case-by-case analysis. Submitting affidavits or deposition testimony of an injured plaintiff’s medical providers that explain in detail the significance of medical findings, examination findings, how the injury impacts the functioning of the plaintiff’s body or mind, as well as his or her restrictions, can be of great assistance to the court in conducting the case-by-case analysis.
The Kreiner opinion focused on the analysis to be conducted in determining if an injured plaintiff has suffered a serious impairment of body function threshold set by the No-Fault Insurance Act in order to maintain an action for non-economic tort damages under MCL 500.3135(1). In either filing or responding to a Kreiner based motion for summary disposition citing the extensive library of subsequent opinions generally adds little value to the inherently case-specific analysis that courts are often in the position of conducting under the Kreiner decision.
On page 134 of the Kreiner opinion, the Supreme Court ruled that “[I]n order to determine whether one has suffered a serious impairment of body function, the totality of the circumstances must be considered…” The court then further explained what is involved in conducting an inquiry into “the totality of the circumstances” by explaining in footnote 19, “[T]he serious impairment of body function inquiry must proceed on a case-by-case basis because the statute requires inherently fact-specific and circumstantial determinations (emphasis added).” The court also provided a non-exhaustive list of objective factors that may be of assistance in evaluating whether the plaintiff’s general ability to conduct the course of his normal life has been affected including: (a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery. The court explained that no one factor is dispositive.
When ruling on a motion for summary disposition, the issues of whether an injured plaintiff has suffered serious impairment of body function or permanent serious disfigurement are questions of law for the court if the court finds either of the following:
There is no factual dispute concerning the nature and extent of the person’s injuries.
There is a factual dispute concerning the nature and extent of the plaintiff’s injuries, but the dispute is not material to the determination as to whether the person has suffered a serious impairment of body function or permanent serious disfigurement.
MCL 500.3135(2)(a)
Therefore, “[I]f a court determines there are factual disputes concerning the nature and extent of a plaintiff’s injuries that are material to determining whether the plaintiff has suffered a serious impairment of body function, the court may not decide the issue as a matter of law.” Kreiner. Supra at 132.1
When the trial court is in the position of making an “inherently fact-specific and circumstantial determination,” summarized medical information that includes the more critical details can be of great assistance. Often times an injured plaintiff has more than one medical provider. There may be voluminous medical records. The plaintiff during his deposition often does not have the technical knowledge to explain the significance of medical findings such as an MRI, EMG result, or findings of a physician upon examination. The medical records of the treating providers will provide some of the information the court will be looking for in conducting a Kreiner analysis. However, the medical records may lack some informative detail as to the type and extent of the impairment, future treatment plans or the plaintiff’s prognosis. In addition, important information is not always discernable from hand written medical records.
More specific medical information can often be obtained from an injured plaintiff’s medical providers in the form of an affidavit or a deposition. This provides an opportunity for a medical provider to explain in detail the significance of medical test results, examination findings, how the injury impacts the functioning of the plaintiff’s body or mind, as well as, restrictions caused by the injury. The Kreiner factors make it important for medical providers to explain the impairment from the injuries.
The decision in Kreiner calls for a case-by-case analysis. Many of the factors from the non-exhaustive list provided in Kreiner create the need for a review of detailed medical information. The best source of specific medical information is going to be the injured plaintiff’s medical providers. Therefore, obtaining and submitting testimony from medical providers by way of affidavit or deposition will greatly assist the trial court in conducting a Kreiner analysis.
Brian J. Bourbeau is a partner in the law firm of Bone, Bourbeau & Bourbeau, P.L.L.C. Brian specializes in personal injury litigation. He can be reached at (586)778-1234 or by email at bjbourbeau@sbcglobal.net.
1 There is a special rule for closed head injuries in MCL 500.3135(2)(a)(ii).
Offers of Judgement By David Maquera, O'Reilly Rancilio PC
Every civil litigator is introduced fairly quickly to the concept and process of case evaluation. Although submission of a civil action to case evaluation is generally at the trial court’s discretion, and in the case of tort cases pending in circuit courts it is mandatory, most circuit courts schedule every civil action involving monetary damages or division of property for case evaluation. However, district courts have historically been less inclined to schedule civil actions for case evaluation even though they have the discretionary authority to do so. The reason why district courts may be less inclined to schedule civil actions for case evaluation is because district courts only possess subject matter jurisdiction over civil actions wherein the amount in controversy does not exceed $25,000.00. Given that there is additional time and expense involved in preparing the requisite documents for case evaluation and appearing for a hearing, a district court will likely be concerned with causing the parties to a civil action to incur any additional expenses for resolving a dispute that involves a relatively smaller amount in controversy.
Nevertheless, the Michigan Court Rules provide an additional means “to encourage settlement and deter protracted litigation” even for a civil action that is not submitted to case evaluation. Specifically, MCR 2.405 provides for “offers to stipulate to entry of judgment,” which are otherwise known as “offers of judgment.” Offers of judgment are more thoroughly discussed in several treatises such as Michigan Civil Procedure by the Institute of Continuing Legal Education and Michigan Court Rules Practice authored by Ronald Longhofer. The civil litigator who is completely unfamiliar with offers of judgment is strongly encouraged to utilize the foregoing resources. Nevertheless, the Michigan rule governing offers of judgment is briefly reviewed below in case one does not have ready access to the above resources.
MCR 2.405 is a relatively short and straight forward rule relative to the lengthy rules governing case evaluation. Subprovision (A) provides the necessary definitions for the material terms of the rule. Subprovisions (B) through (D) govern the rule’s operation. Subprovision (E) provides the rule’s relationship to case evaluation whereby costs are not awarded under MCR 2.405 unless the case evaluation award is not unanimous.
Pursuant to the express language of MCR 2.405(B), an offer of judgment must be in writing and served upon the offeree at least 28 days before trial. For purposes of determining the 28-day period before trial, a trial begins when the trial court hears opening arguments. In addition, the date of the trial is not included in the 28-day period. Also, if the first day of the 28-day period falls on a Saturday, Sunday, legal holiday, or a holiday on which the court is closed per court order, then the 28-day period begins on the next following business day.
Absent from subprovision (B) is a requirement that the offer of judgment be filed with the court. However, it is suggested that a proof of service be filed with the court in the event there is a future dispute regarding any deadline.
The offer of judgment is further defined in subprovision (A) as “the offeror’s willingness to stipulate to the entry of a judgment in a sum certain.” The offer must be for stipulation of a judgment, which is distinct from an offer for settlement. A “sum certain” must be for a specific monetary amount.
The offeree has four options pursuant to MCR 2.405(A)(2) and subprovision (C) for responding to a judgment of offer: accept the offer, reject the offer, make a counter-offer, or make a new offer. The offeree accepts the offer of judgment by serving a written notice of agreement on the other parties within 21 days after service of the offer. The requirements for effectuating an acceptance are distinct from making an offer of judgment in one particular respect; the written notice of acceptance and proof of service must be filed with the court. If the offeree wants to reject the offer of judgment, then such party may either do so in writing or simply do nothing and let the 21-day period for accepting the offer lapse. A counter-offer must also be made within twenty-one days of the offer. The method for accepting or rejecting a counter-offer is the same as acceptance or rejection of the offer.
If the adjusted verdict is greater than the average offer, then the offeree must pay the offeror’s actual costs for prosecuting or defending the civil action. The terms “average offer,” “verdict,” and “adjusted verdict” are defined in subprovision (A). Most importantly, the term “actual costs” includes reasonable attorney fees for services incurred by failure to stipulate to the entry of judgment. The request for actual costs must be filed and served within 28 days after entry of the judgment or entry of an order denying a timely motion for a new trial or to set aside the judgment.
The offeree may also be awarded actual costs for prosecuting or defending the civil action if the adjusted verdict is more favorable to the offeree than the average offer. However, the offeree may not recover actual costs unless a counter-offer was made. The exception to the foregoing rule is applicable where the offer was made less than 42 days before trial.
There are some additional considerations for the civil litigator to keep in mind when contemplating the use of offers of judgment. First, an offer of judgment that is accepted and entered in one cause of action operates as a full and final adjudication on the merits and precludes pursuit of a separate cause of action for damages arising from the same incident and injuries against alleged joint tortfeasors. Second, if each party makes an offer of judgment to the other party that is neither accepted nor countered within the requisite 21-day response period, then the “average offer” for each party is that party’s respective offer.
Offers of judgment are particularly useful to the party with a strong case but no contractual or statutory right to an award for reasonable attorney fees. Any civil litigator representing a party to a civil action not being submitted to case evaluation is strongly encouraged to evaluate whether an offer of judgment should be made to the offeree in order to facilitate a settlement or discourage protracted litigation. Mr. Maquera is an associate with the law firm of O’Reilly Rancilio P.C. in Sterling Heights specializing in general civil, commercial, and probate litigation.
MCR 2.403(A)(1).
MCR 2.403(A)(2).
MCR 2.403(A)(3).
MCL § 600.8301.
MCR 2.403(I) and (J).
Sanders v Monical Mach Co, 163 Mich App 689, 692; 415 NW2d 276 (1987).
Wilkins v Gagliardi, 219 Mich App 260, 274; 556 NW2d 171 (1996).
Magnuson v Zadrozny, 195 Mich App 581, 588; 491 NW2d 258 (1992).
Id.
2 Henry Langberg, Michigan Civil Procedure § 11.90 (Kathleen A. Lang, et al, eds, 2007).
MCR 2.405(A)(1).
Haberkorn v Chysler Corp, 210 Mich App 354, 378; 533 NW2d 373 (1995).
Hessel v Hessel, 168 Mich App 390, 395; 424 NW2d 59 (1988); Central Cartage Co v Fewless, 232 Mich App 517, 532; 591 NW2d 422 (1998).
2 Henry Langberg, Michigan Civil Procedure § 11.93 (Kathleen A. Lang, et al, eds, 2007).
MCR 2.405(C)(1).Id.
MCR 2.405(C)(2).
Beveridge v Shorecrest Lanes & Lounge, Inc, 204 Mich App 466, 469-470; 516 NW2d 117 (1994).
MCR 2.405(C)(3).
MCR 2.405(D)(1).
MCR 2.405(A)(3)-(5).
MCR 2.405(A)(6).
MCR 2.405(D).
MCR 2.405(D)(2).
Id; Lamson v Martin, 216 Mich App 452, 462; 549 NW2d 878 (1996).
MCR 2.405(D)(2).
Hanley v Mazda Motor Corp, 239 Mich App 596, 598; 609 NW2d 203 (2000).
See Beveridge v Shorecrest Lanes & Lounge, Inc, 204 Mich App 466, 470; 516 NW2d 117 (1994).
Civil Forefeiture of Motor Vehicles Seized in Drunk Driving Arrests By Patrick D. Ball, Ball & Ball LLP
Twice within the last year I have had the same problem. A mother lets her son use her car. On both occasions, the son while driving home in his mother's car gets ?stopped for drunk driving and the police seize the mother’s car. The Police serve an OWI Forfeiture/Nuisance Abatement Notice of Seizure and Intent to Forfeit. The notice tells the son, he can settle the case by paying the Prosecuting Attorney $900.00 or risk forfeiture. The money is then paid to the Prosecutor to avoid the risk of forfeiture even though the owners/mothers were innocent and didn’t know their sons’ were going to drink and drive.
The reality of today’s heightened concern over drunk driving leads to aggressively prosecuting drunk drivers. Aggressive prosecution leads to seizing and forfeiting not only vehicles owned by drunk drivers, but also vehicles driven by drunk drivers but owned by others who are innocent of wrongdoing. This article examines whether civil forfeiture is a legitimate basis to seize and forfeit an innocent owner’s vehicle.
Mom will either pay to get it back or it will be forfeited. To understand mom’s conundrum, one must first understand that Michigan’s Drunk Driving Legislation does not authorize forfeiting mom’s vehicle.
The Motor Vehicle Code, MCLA 257.625 provides for “[f]orfeiture of the vehicle if the defendant owns the vehicle in whole or in part.”1
The only penalty imposed by the Motor Vehicle Code, on an owner non-driver is under MCLA 257.625(2). This section criminalizes authorizing a drunk driver to drive when you know he/she is drunk. The penalty is a 93-day misdemeanor, two-year felony, or a five-year felony under MCLA 257.625(10)(A)(B)(C). Forfeiture is not even listed as a possible penalty even though the focus is on an owner who is not innocent of wrongdoing.
This leaves one legal basis to seize and forfeit mom’s (innocent owner) vehicle - civil forfeiture.
Civil forfeiture is authorized by Chapter 600 of the Revised Judicature Act. MCLA 600.3801 provides for the abatement of nuisances, when any:
“building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution, or used by, or kept for the use of prostitutes or other disorderly persons or used for the unlawful manufacture, transporting, sale, keeping for sale, bartering…of any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors…a nuisance….”2
Section 38 also provides a specific procedural method for providing due process. It requires that an action be filed in the circuit court where the nuisance is located, seeking abatement of the nuisance.3
Does mom’s vehicle become a nuisance subject to abatement? It is hard to logically apply mom’s predicament to the nuisance abatement statute. The vehicle was not used to transport alcohol; the son drank before driving; the vehicle was not used to warehouse alcohol; it was not used for prostitution or assignation. Thus, one has to scratch their head and say, “how could this be?”.
It could be because both the Sixth Circuit Court of Appeals and the United States Supreme Court, in dissimilar cases dealing with prostitution, set out a road map of how to seize and forfeit mom’s vehicle. Expansive policy statements in these cases has led to applying legal precedent to dissimilar facts: innocent owners of OUIL vehicles, not innocent owners of vehicles used in prostitution.
Both cases arise out of prostitution vice stings in Detroit. Bennis v. Michigan4 and Ross v. Duggan.5 In Bennis,6 husband John took the family vehicle to Detroit, owned jointly with his wife, Tina, and picked up a prostitute. He was caught engaging in fellatio by police. The police seized the family vehicle. The Attorney General show caused Tina under the Civil Forfeiture Act, and the Wayne Circuit Judge forfeited Tina’s interest, even though she was an innocent owner, who did not know of or encourage her husband’s escapade. The case worked its way through the state and federal system, to the U.S. Supreme Court. At the end of the day, the Supreme Court pronounced that Tina, an innocent owner, had no gripe because the vehicle was a nuisance, it was used as a four-wheel bawdy house.
In the second case, Ross,7 nine people sued Benny Napoleon, Detroit Police Chief, and Michael Duggan, Wayne County Prosecutor. The Detroit Police seized up to 500 vehicles a year in “Operation Push,” a prostitution vice sting. Among the nine plaintiffs there were innocent owners who allowed a defendant to use a vehicle. At the time of the arrest and seizure, each driver was given a notice form. It advised the defendant that unless a civil fee was paid to settle the case, a petition to forfeit the vehicle would be filed under Michigan Nuisance Abatement Statute.
The notice also told the defendant that a show cause hearing would be scheduled about one week after the abatement action was filed. The owner could instead settle by paying civil fees and get the vehicle back. The civil fees of $900.00 paid to prosecutor Duggan were divided, $250.00 to the Prosecutor’s Office and $650.00 to the Detroit Police Department. Plaintiffs claimed the entire procedure was a sham, to extract fees and violated procedural due process. Federal Judge Zatcoff, dismissed all nine counts of the plaintiffs’ complaint. Relying on Bennis, the court held that engaging in prostitution in a vehicle turned it into a four-wheel brothel. Thus the nine plaintiffs’ vehicles in Ross were four-wheeled brothels and subject to abatement. The U.S. Court of Appeals affirmed, agreeing that a four-wheel bawdy house was a nuisance, that required abatement.
Michigan prosecutors and police departments routinely seize and forfeit vehicles driven by drunk drivers using the same method approved in these prostitution cases. The legal problem is driving a vehicle after drinking is not the same as using a vehicle for sex with a prostitute. The proffered use of the nuisance abatement statute even in this era of aggressive drunk driving prosecution, does not hold water.
First, is this a questionable and perhaps illegal seizure and forfeiture? The purpose of the nuisance abatement statute is to eliminate the use of property for or in connection with prostitution, gambling and the illicit possession or transfer of intoxicants.8 Not the transport of persons who drank before driving.
Second, the Legislature approved forfeiture under the Motor Vehicle Code9 in 1996, and amended the provision in 1998.10 Yet each time the Legislature did not include any provision for seizing the vehicle of an owner who was not a defendant in the OUIL prosecution. Even MCL 257.625n(12) effective October 1, 1999, does not allow innocent owner forfeiture.11
Third, subjecting an innocent owners’ vehicle to seizure and forfeiture is bad public policy. It will cause innocent owners to loose their vehicles, disrupt their ability to use the vehicle and prevent them from working.
Fourth, the Motor Vehicle Code tells the state how to deal with a complicit owner. Prosecute him/her for knowingly authorizing the use of the vehicle by the drunk driver, but don’t take mom’s car.Conclusion Michigan’s Nuisance Abatement Statute does not provide a legitimate basis to seize or forfeit an innocent owners’ vehicle. If the legislature wants to authorize the forfeiture of innocent owners’ vehicles, it should pass appropriate legislation to do so. Current seizure and forfeiture of innocent owner’s vehicles is not legal under the Motor Vehicle Code or under the Revised Judicature Act.
1 MCL 257.625n(1)(a)
2 MCL 600.3801
3 MCL 600.3805.
4 516 U.S. 442, 116 S. Ct. 994, 134 L. Ed. 2d 68 (1996).
5 402 F.3d 575 (6th Cir. 2004).
6 516 U.S. 442.
7 402 F.3d 575.
8 See People ex rel. Wayne County Prosecuting Attorney v. Sill, 310 Mich. 570, 576 (1945).
9 MCL 257.625n
10 1998 Mich. Pub. Acts 349.
11 MCL 257.625n(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.”). There is no other law authorizing forfeiture of an innocent owner’s vehicle. Thus this section provides no basis to claim there is legislative intent under MCL 257.625n allowing seizure of the vehicles of innocent owners.
