Bill Bringing State Closer To Ending Asset Forfeiture Abuse Advances in Michigan
House considers bill to require a conviction before police can take and keep a person’s property in most cases
The Michigan House Judiciary Committee voted 8-1 with one member voting present on Tuesday to advance to the full House the main bill of a civil asset forfeiture reform legislative package.
House Bill 4158 would require a person be convicted of a crime before law enforcement agencies and prosecutors could take ownership of seized cash and other assets, as long as the property is valued at less than $50,000.
Rep. Jim Runestad, R-White Lake, who chairs the House Judiciary Committee, told Michigan Capitol Confidential that after more than a year and a half working on the legislation, he’s pleased that the bill passed out of committee.
“It’s a balancing act and I think the bill, as it stands now, is a good one,” Runestad said.
Runestad said House Republican leaders told him they are interested in the bill. He plans to take up another forfeiture bill that he sponsored as soon as next week, and work is continuing on two other reform bills that still lack a consensus.
Mackinac Center analyst Jarrett Skorup co-authored a study on Michigan civil asset forfeiture with Dan Korobkin, the ACLU of Michigan's deputy legal director. Skorup said the bill is a good step but believes the bill should be tweaked in some “small but significant ways.”
“This is a solid step in the right direction and lawmakers should be commended for taking it up. Hundreds of innocent Michigan citizens lose their property every year through civil asset forfeiture,” Skorup said. “We will encourage legislators to ensure that any assets gained without a criminal conviction – as abandoned or relinquished property – go to the state’s general fund rather than back to local law enforcement agencies. This will better protect individual rights and prevent policing for profit.”
House Judiciary Committee Minority Vice-Chair, Rep. Tim Greimel, D-Auburn Hills, was the only committee member to vote against House Bill 4158. Rep. Vanessa Guerra, D-Saginaw, voted “present.”
“The bill imperils public safety by making it much easier for criminals to operate and by draining funds from local police departments,” Greimel said in an emailed statement. He added, “Moreover, there are already due process protections in existing law: If someone objects to the civil forfeiture of their property, law enforcement must prove by clear and convincing evidence that the property forfeited is connected to a crime.”
Current law that would not change allows law enforcement to seize property at the scene or during an investigation when there is probable cause to believe a crime has been committed and the owner is involved. This is often but not always related to drug cases, and is not generally controversial.
Forfeiture happens later, under a legal process that lets law enforcement take permanent possession of a person’s property with a lower standard of proof than it would take to convict someone of a crime.
A criminal conviction requires the highest burden of proof — beyond a reasonable doubt. If the legislation reported by the House Judiciary Committee becomes law, on drug-related crimes the state must convict a person in a court of law before a civil court decides whether the assets were gained as a result of the illegal activity.
In 2016 the typical Michigan asset forfeiture proceeding involved about $500 worth of assets, usually cash and vehicles, according to data obtained through open records requests to the Michigan State Police. Given that low dollar value, critics of the current law say, it’s often not worth it for an individual to hire a lawyer to try to get the goods back.
Michigan State Police records indicate that in 2016 law enforcement used civil asset forfeiture to take ownership of property from more than 700 people who were either never charged with a crime, or were charged and found innocent. Out of the 5,290 forfeiture cases Michigan adjudicated in 2016, less than half involved someone who had already been convicted of a crime.
More than $15.3 million in cash, vehicles and other assets was forfeited throughout the state in 2016. Since 2000, the state has forfeited about $20 to $25 million worth of assets each year.
Since civil asset forfeiture has a lower standard of proof than a criminal conviction, at times, law enforcement officials have been able to use it to take property even when other charges are thrown out.
Over the past several years, some notorious cases have come to light and news reports from around the state have raised public awareness of this controversial law. Michigan Capitol Confidential has contributed to this record with stories involving a former detective, a college student, a 1965 Chevy Nova and a Traverse City couple, among others.
Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.
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The Battle Between Taxes and Fees in Storm Sewer Finance
Local governments should get popular support for fiscal policies
The Legislature is considering a bill to change the way local governments pay for storm sewers. Some local government officials want the bill so that they will avoid legal challenges to the way they assess sewer costs to property owners. The law’s drafters, on the other hand, seem less intent at avoiding litigation than they are at avoiding the popular votes required to approve new taxes.
When it rains, storm sewers in an area redirect the water to nearby bodies of water. This works to prevent flooding.
The systems cost money, which comes from local property taxes or fees on water and sewer bills. Local governments want to have the people who use the storm sewer pay in proportion to their use. That’s a difficult thing to ask, however, since property owners don’t control the weather. A landowner could make less use of a storm sewer (and thus pay the local government less), but that would require the onerous task of digging up pavement and installing rainwater collection devices.
Local governments themselves are major users of stormwater systems, since they manage local roads, parks and other properties that feed into them. A proportional system of financing them would also mean that the local government pays for the portion that it uses. Money for that would have to come from the government’s general revenues.
Birmingham city manager Joe Valentine testified in committee that his employer needs this legislation to avoid litigation from residents. It would, he said, give the city explicit authorization to assess users their proportion of the cost, something it doesn’t have under current laws. It is fine to authorize local governments to tie storm sewer costs to the people that directly benefit from them. But this assessment authorization should require a vote of residents. The legislation instead requires only a public notice and the approval of the local government’s board.
In the past, courts have ruled that attempts to raise local revenue by using proportional assessments run afoul of state laws about local government finance. Indeed, one ruling laid out the distinguishing features between a tax and a fee. This is an important distinction because taxes are subject to taxpayer protection laws and fees are not. Under a requirement state voters approved in 1978, voters must approve all new local government taxes.
Under this bill, lawmakers would let local governments avoid that requirement because it specifically calls the assessment of costs a fee and not a tax — and the Legislature gets to define what a tax is. The bill also spells out how cost assessments meet the court’s requirements to be considered a fee and not a tax.
Local governments should try to see whether residents want to assess stormwater taxes that attempt to put the greatest responsibility on people who use the systems the most. But under the proposed law, all a local unit of government would need to do to is hold a single board meeting.
Popular approval is important, however. Consider a local government that pays for its stormwater system with general funds, composed largely of property taxes. It then, under the proposed law, moves to a proportional assessment of the costs. Residents, businesses and other governments would pay new fees for the system, but they would also continue to pay general property taxes. The practical effect of the new assessment, then, would be that the local government gets to spend general taxpayer dollars on something other than the stormwater system. A local government would also have to lower property taxes in proportion to the level of new revenue if it wanted money from the new storm sewer tax to be used for storm sewers. Otherwise, the thing that is named a storm sewer tax would have the practical effect of funding the other parts of the local government.
A local government that financed its system with sewer bills, on the other hand, would better tie costs to usage. The fees are supposed to be in proportion to usage already; a more natural fit would be to raise storm sewer fees and lower water and sanitary sewer fees.
Regardless of the justification for the proposed law — to shift responsibility for financing infrastructure among users, or to let local governments spend more — local government services and finances should be subject to popular control. It’s disappointing that local officials want a law that would say otherwise.
Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.
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