Forfeiture of Certain Personal Property, In re
| Decision Date | 29 September 1992 |
| Docket Number | 93410,Nos. 93409,s. 93409 |
| Parties | In re FORFEITURE OF CERTAIN PERSONAL PROPERTY. In re 5773 MARBLE DRIVE, TROY, MICHIGAN, et al. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., and Michael J. Modelski, Chief, Appellate Div., Pontiac, for Oakland County.
Anthony, Hearsch & Seibert by Robert J. Seibert, Mt. Clemens, for Chesterfield Tp. Police.
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Carl Marlinga, Pros. Atty., and Diane M. Hathaway, Asst. Pros. Atty., Mt. Clemens, for Macomb County.
The issue presented by the application for leave to appeal filed by the Oakland County Prosecutor is whether the proceedings to forfeit cash and other items of personal property on the ground that they were related to drug trafficking should be conducted in the Oakland Circuit Court or the Macomb Circuit Court. The Court of Appeals concluded that the case should proceed in the Macomb Circuit Court. We reverse.
On February 22, 1989, the Hazel Park Police Department (Oakland County) responded to a report of a disturbance and discovered 2.8 kilograms of cocaine in the trunk of an automobile that was registered to Robert Joseph Darcy. The officers seized the cocaine, as well as $12,770 in cash and $10,104.80 in cashier's checks and money orders. Ultimately there was an Oakland County citizens' grand jury investigation into the possible drug-trafficking activities of Mr. Darcy. Cooperating in the effort were the Hazel Park Police Department, the Troy Police Department, and the Oakland County Prosecutor's Office. The investigation led the authorities to conclude that Mr. Darcy was the ringleader of a drug distribution network and conspiracy in Oakland County. Large quantities of cocaine were allegedly stored at his Troy residence.
On December 19, 1989, the grand jury returned indictments that charged Mr. Darcy, Robert Jessman, and a number of other persons with various drug-related offenses. Warrants were issued, and several of those charged were arrested later that day.
Two of those who were not initially apprehended were Robert Joseph Darcy and Robert Jessman. The circumstances surrounding their later arrest are the source of this appeal.
At approximately 2:00 a.m. on December 21, 1989, Chesterfield Township (Macomb County) police officers were on routine patrol when they noticed a woman and two men acting suspiciously near the fence of a motel parking lot. When the officers approached, the woman and one of the men attempted to flee. The man was apprehended, along with the man who did not flee. They were identified as Robert Joseph Darcy and Robert Jessman. They were taken to police headquarters, along with a suitcase and a briefcase. Officers obtained a search warrant for the cases, which were found to contain approximately $580,000 in cash, 1 jewelry, and gold coins.
Officers from several Oakland County jurisdictions went to the Chesterfield Township Police Station. They identified Mr. Darcy and Mr. Jessman and arrested them pursuant to the grand jury indictments. They also requested the items that had been seized from the men, but Chesterfield Township Police refused to turn them over.
Shortly after 8:00 a.m. that same morning, the Chesterfield Police Department obtained from the Macomb Circuit Court an ex parte order that is entitled, "Order: Maintaining Status Quo." It provided:
On December 28, 1989, the Oakland County Prosecutor filed an appearance and a notice of claim in the Macomb Circuit Court action with regard to the items seized by Chesterfield Township and covered by the status quo order.
At 9:00 a.m. on January 2, 1990, the Oakland County Prosecutor filed in Oakland Circuit Court a complaint for forfeiture, which stemmed from the ongoing Oakland County drug investigation. It listed thirty-six items, including those seized by Chesterfield Township Police. 2
That morning, an Oakland Circuit judge issued a temporary restraining order and an order to show cause, which provided, inter alia, that the items seized by the Chesterfield Township Police Department be turned over to the Oakland County Prosecutor's Office for examination as possible evidence and for deposit. The order further provided that Robert Joseph Darcy and the Chesterfield Township Police Department appear on January 10, 1990, to show cause why the prayed-for preliminary relief should not be granted.
The complaint for forfeiture and the Oakland Circuit Court order were served on the Macomb County Prosecutor shortly thereafter. At 3:40 p.m. that same day, January 2, 1990, the Macomb County Prosecutor filed in Macomb Circuit Court his own complaint for forfeiture of the items seized by the Chesterfield Township Police Department.
An additional filing in the Macomb Circuit Court on January 2 was Oakland County's motion to dissolve the December 21 "status quo" order. On January 4, 1990, the Macomb Circuit Court denied the motion to dissolve and held that the Macomb County Prosecutor's complaint for forfeiture should be tried in Macomb County. The court permitted the Oakland County Prosecutor to obtain the seized property temporarily, for evidentiary purposes, but directed that it be returned to the Chesterfield Township Police Department. The court also directed that the "status quo" case be consolidated with the forfeiture case that had been initiated by the Macomb County Prosecutor.
Oakland County filed an application for leave to appeal the denial of the motion to dissolve the status quo order. The Court of Appeals granted leave on March 7, 1990.
On March 19, 1990, cross-motions for summary disposition brought by Oakland County and Chesterfield Township were heard in the Macomb forfeiture case. The court stayed all proceedings pending the Court of Appeals decision on the appeal.
On May 9, 1990, the Oakland Circuit Court denied Chesterfield Township's motion for summary disposition, which had sought elimination from the Oakland County forfeiture complaint of those items that had been seized by the Chesterfield Township Police on December 21, 1989.
The township appealed, and the Court of Appeals granted leave to appeal on July 13, 1990. The Court consolidated the appeal with the appeal of Macomb's action and stayed any further proceedings in the Oakland Circuit Court.
In an opinion dated February 18, 1992, the Court of Appeals affirmed the Macomb Circuit Court order that had denied the motion to dissolve the status quo order, and reversed the Oakland Circuit Court order that had denied the township's motion for summary disposition. The panel remanded for proceedings consistent with the opinion. It did not retain jurisdiction. 193 Mich.App. 132, 483 N.W.2d 650 (1992).
The Court of Appeals first observed that forfeiture actions are in rem proceedings. In re Forfeiture of $28,088 of United States Currency, 172 Mich.App. 200, 203, 431 N.W.2d 437 (1988). In rem jurisdiction over personal property within Michigan lies with courts of record in this state. M.C.L. Sec. 600.755; M.S.A. Sec. 27A.755. Accordingly, both the Macomb Circuit and the Oakland Circuit Courts have jurisdiction over the items seized by the Chesterfield Township Police.
The panel said that the determination of jurisdiction does not end the analysis, however. Venue must be determined. Venue involving claims concerning the recovery of personal property lies in the county in which the subject of the action is situated. M.C.L. Sec. 600.1605; M.S.A. Sec. 27A.1605. 3 Property taken or detained pursuant to forfeiture proceedings is deemed to be in the custody of the seizing agency. M.C.L. Sec. 333.7523(2); M.S.A. Sec. 14.15(7523)(2). 4
Turning to Oakland County's argument that venue should be in Oakland because the Macomb County action involves claims arising from the same transaction or occurrence as the Oakland County action, and that Oakland County is where most of the property is situated, the Court of Appeals observed that Oakland County had not asked the Macomb Circuit Court to join the claims or to change venue. Issues and arguments raised for the first time on appeal are not subject to review. Bloemsma v. Auto Club Ins Ass'n (After Remand), 190 Mich.App. 686, 692, 476 N.W.2d 487 (1991).
Finally, the Court of Appeals rejected Chesterfield Township's argument that only it had standing to bring forfeiture proceedings regarding the property seized on December 21, 1989. Agencies "substantially involved in effecting the forfeiture" are to participate in the equitable distribution of forfeited assets. M.C.L. Sec. 333.7524(1)(b)(ii); M.S.A. Sec. 14.15(7524)(1)(b)(ii). 5 193 Mich.App. at 136, 483 N.W.2d 650.
The Oakland County Prosecutor seeks leave to appeal in this Court.
The position of the Oakland County Prosecutor is that because his forfeiture complaint was filed earlier, on January 2, 1990, than the complaint filed by the Macomb County Prosecutor, it is the Oakland Circuit Court that has exclusive jurisdiction. Chesterfield Township, on the other hand, argues that the Macomb Circuit Court's December 21, 1989, "status quo" order constituted the taking of jurisdiction over the res, precluding another court from doing so.
Each party relies on cases that have held that courts may not assume in rem jurisdiction over a res that has already come under the jurisdiction of another court--i.e., the doctrine of prior exclusive jurisdiction. 6 The doctrine of prior exclusive jurisdiction has long been recognized in Michigan. Generally, once a court has exercised its jurisdiction over an item, other courts "of co-ordinate...
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