STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6582

May 17, 1989

DRUGS AND MEDICINE:

Allocation of forfeited controlled substance proceeds between state and local units of government

Award of forfeited controlled substance proceeds to attorney of defendant not authorized

Award of forfeited controlled substance proceeds to multilaw enforcement agency not involved in seizure

Payment of costs of forfeiture proceedings from proceeds of particular seizure

LAW ENFORCEMENT AGENCY:

Use of forfeited property seized in controlled substance enforcement only in controlled substance law enforcement activity

Use of proceeds of forfeited property to enhance controlled substance law enforcement

WORDS AND PHRASES:

"Enhance"

"Official use"

A court is without authority to order forfeited cash or other assets obtained from controlled substance forfeiture proceedings to be paid to the defendant's attorney for legal services rendered to his/her client.

MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(1)(b)(ii), does not authorize the distribution of controlled substance forfeiture proceeds to a multi-law enforcement agency task force arising out of the seizure of property in connection with controlled substance law enforcement where the task force was not involved in the seizure of the controlled substances.

As used in the controlled substance forfeiture provisions of Chapter 7 of the Public Health Code, the phrase "retain it for official use" permits the local units of government and the state to retain forfeited assets seized in connection with controlled substance law enforcement, provided that such assets are used only in controlled substance law enforcement activity.

The word "enhance" within the context of Article 7 of the Public Health Code means advancing in value, intensifying, increasing, improving or making better of law enforcement efforts pertaining to the enforcement of the controlled substance laws.

A court may not order available balances maintained by budgetary authorities from funds received from controlled substance forfeiture proceedings to be used to pay the cost incurred in separate controlled substance forfeiture proceedings where there are insufficient funds available to pay for the expenses of a particular controlled substance seizure under MCL 333.7524(1)(b)(i); MSA 14.15(7524)(1)(b)(i).

There is no authority after September 29, 1985 for a 25%-75% allocation of forfeited controlled substance forfeiture proceeds between the state and local governmental units, regardless of the date of seizure of the property.

Honorable Carolyn C. Kilpatrick

State Representative

The Capitol

Lansing, Michigan 48913

You have requested my opinion on six questions relating to the controlled substance forfeiture provisions in Article 7 of the Public Health Code, 1978 PA 368, MCL 333.7501 et seq: MSA 14.15(7501) et seq. Your questions will be addressed seriatim.

The forfeiture provisions of Article 7 of the Public Health Code, as most recently amended by 1988 PA 7, 60, and 139, provide for civil forfeiture of property of virtually any kind, including money, that is directly related to illegal controlled substance transactions. MCL 333.7521; MSA 14.15(7521), describes the property that is subject to forfeiture. Seizure of the property may be made upon process issued by the circuit court having jurisdiction over the property or without process in four specifically defined cases. MCL 333.7522; MSA 14.15(7522). The procedure for forfeiture proceedings is outlined in MCL 333.7523; MSA 14.15(7523), as last amended by 1988 PA 7.

When property has been seized, upon the entry of an order of forfeiture, the court is limited in terms of what it can do with the forfeited property. MCL 333.7524; MSA 14.15(7524), amended by 1988 PA 7, in pertinent part provides:

Examples of expenses of the proceedings for forfeiture and sale authorized by Article 7 are those "incurred during the seizure process, maintenance of custody, advertising, and court costs." MCL 333.7524(1)(b)(i); MSA 14.15(7524)(1)(b)(i). It would be inconsistent with the listing of law enforcement expenses set forth in MCL 333.7524(1)(b)(i); MSA 14.15(7524)(1)(b)(i), to imply as being included, without express statutory language, expenses for legal services being rendered on behalf of a defendant. Nowhere in the controlled substance forfeiture provisions of Article 7 of the Public Health Code, supra, is a court given authority to distribute forfeited cash or other assets to the defendant's attorney for legal services rendered to a client. Such a payment is not authorized.

It is my opinion, in answer to your first question, that a court is without authority to order forfeited cash or other assets obtained during controlled substance forfeiture proceedings be paid to the defendant's attorney for legal services rendered to his/her client.

Your second question is:

MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(1)(b)(ii), provides:

There is no provision in MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(1)(b)(ii), for law enforcement agencies which were not involved in the forfeiture process to share in the distribution of the forfeiture proceeds.

It is my opinion, in answer to your second question, that MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(1)(b)(ii), does not authorize the distribution of forfeiture proceeds to a multi-agency task force arising out of the seizure of property in connection with controlled substance law enforcement where the task force was not involved in the seizure of the property.

Your third question is:

MCL 333.7524(1); MSA 14.15(7524)(1), provides:

The phrase "for official use" is not defined in the Public Health Code. A similar phrase "official act" was defined in Bostatter v. Hinchman, 243 Mich 589, 594; 220 NW 775 (1928), to mean "an act done by the officer in his official capacity under color and by virtue of his office."

Where the meaning of a statutory term is unclear, the statute must be construed to give effect to the Legislature's intention in enacting the statute, as determined by the language employed and in light of such legislative history as is available. Miller v. State Farm Mutual Automobile Ins Co, 410 Mich 538, 556; 302 NW2d (1981). From its adoption in 1971 ⁽¹⁾ until 1982, the statute provided that all forfeited property was to be referred to the statute's administrator, the Michigan Board of Pharmacy, or its designated or established authority, which had several options as to the use of the forfeited property per MCL 333.7524; MSA 14.15(7524), which provided up until 1982 as follows:

Thus, under the statute as originally adopted, if property were retained by the Michigan Board of Pharmacy, as administrator, that property would be utilized by the board in its administration of law enforcement relating to controlled substances.

With the adoption of amendatory 1982 PA 251, the reference to the administrator in the introductory portion of MCL 333.7524(1); MSA 14.15(7524)(1), as set forth above, was deleted, and in its place, the Legislature provided for both the state and local units of government to receive forfeited property which had been seized by them in connection with controlled substance law enforcement. Subsection (1)(a) of MCL 333.7524; MSA 14.15(7524), was left unchanged. MCL 333.7524(1); MSA 14.15(7524)(1), now provides, in pertinent part:

In examining subparts (b), (c) and (d) of MCL 333.7524(1); MSA 14.15(7524)(1), which follow the "retention for official use" provision, it is noteworthy that the Legislature has provided that each option relates to controlled substance law enforcement. In subpart (b), the proceeds of any sale of forfeited property are to be used for (1) the payment of expenses of the forfeiture proceedings, and (2) the enhancement of law enforcement efforts pertaining to Article 7. Under subpart (c), the property may be turned over to the Michigan Board of Pharmacy, as administrator, as was the case for all such property prior to 1982 PA 251, for custody and disposition in accordance with law. Finally, subpart (d) provides that the forfeited property can be forwarded to the Drug Enforcement Administration for disposition. In none of these instances is provision made for the property to be used for general governmental purposes. ⁽²⁾

In this statutory context, the phrase "for official use" refers to activity recognized in the enforcement of controlled substance laws set forth in Article 7. This conclusion is consistent with the legislative requirement that the proceeds of forfeited property which has been sold must be used for law enforcement efforts pertaining to Article 7. It would be incongruous for a governmental unit to be able to keep property for general governmental use, but require that the proceeds of such property, if sold, be used only for law enforcement pertaining to controlled substances.

It is my opinion, in answer to your third question, that the phrase "retain it for official use" as used in Article 7 (Controlled Substances) of the Public Health Code, MCL 333.7524(1)(a); MSA 14.15(7524)(1)(a), permits the local units of government and the state to retain forfeited assets seized in connection with controlled substance law enforcement, provided that such assets are used only in controlled substance law enforcement.

Your fourth question is:

The Legislature has mandated that the proceeds from the sale of forfeited property "shall be used to enhance law enforcement efforts pertaining to this article." (Emphasis added.) MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(b)(1)(ii). Webster's Third New International Dictionary, Unabridged Edition (1964), defines the term "enhance" as to "advance, augment, elevate, heighten, or increase." Further, the term "enhance" is synonymous with the word "intensify." Black's Law Dictionary, 5th Edition, defines "enhanced" as "[m]ade greater; e.g., in value or attractiveness. This word, taken in the unqualified sense, is synonymous with 'increased' and comprehends any increase in value, however caused or arising." In State v Kaiser, 106 Idaho 501; 681 P2d 594, 595 (1984), vacated on other grounds 108 Idaho 17; 696 P2d 868 (1985), the court, in the context of enhancement of sentencing for certain crimes, defined the term "enhance" as to "simply make greater; it is synonymous with increase."

It is my opinion, in answer to your fourth question, that the word "enhance" within the context of Article 7 (Controlled Substances) of the Public Health Code means advancing in value, intensifying, increasing, improving or making better of law enforcement efforts pertaining to the enforcement of the controlled substance laws.

Your fifth question is:

MCL 333.7524(1); MSA 14.15(7524)(1), provides, in pertinent part, for disposition of the proceeds of the sale of forfeited property:

Rules for statutory construction were concisely summarized in Nicholas v Michigan State Employees Retirement Bd, 144 MichApp 70, 74; 372 NW2d 685 (1985):

MCL 333.7524(1)(b)(i); MSA 14.15(7524)(1)(b)(i), specifically identifies, as examples of appropriate expenses, the payment of "expenses incurred during the seizure process, maintenance of custody, advertising and court costs." The Legislature intended to limit payments in this subsection solely to the costs incurred by the government during the particular seizure and forfeiture process. If expenses are related to the particular seizure and forfeiture, legitimate associated costs incurred by the government may be reimbursed.

MCL 333.7524(1)(b); MSA 14.15(7524)(1)(b), must be considered on a case-by-case basis. When property is forfeited, expenses incurred during the seizure and forfeiture process in that particular case must first be paid. MCL 333.7524(1)(b)(i); MSA 14.15(7524)(1)(b)(i). After appropriate expenses are paid, any remaining balance is to be distributed pursuant to MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(1)(b)(ii), for the enhancement of "law enforcement efforts pertaining to this article." The statute makes no provision for the inability to pay all expenses associated with seizure and forfeiture. Conceivably, in some cases, the value of the forfeited property may not be sufficient to pay all expenses of the proceedings. Forfeiture proceedings must be considered separate and distinct actions; money obtained during one forfeiture proceeding may not be used to pay expenses in a separate and distinct proceeding.

In the event insufficient funds are available to pay costs in a specific case, no specific priorities are mentioned within the statute. However, the court may establish such priorities as it deems necessary or desirable in a particular case. Such discretion could be exercised to insure that forfeiture proceeds are first applied to the costs associated with asset preservation. Similarly, the court may wish to give a higher priority to the payment of court costs or prosecutorial expenses before investigative costs are reimbursed. The court may also exercise its discretion to provide a pro rata distribution of proceeds to partially cover all costs associated with the forfeiture. In this sense, the court would be applying principles associated with bankruptcy and receivership proceedings.

It is my opinion, in answer to your fifth question, that the court may not order available balances maintained by budgetary authorities from funds received pursuant to MCL 333.7524(1)(b)(ii); MSA 14.15(7524)(1)(b)(ii), to be used to pay for costs incurred in separate drug forfeiture proceedings where there are insufficient funds to pay for expenses of the particular seizure as provided by MCL 333.7524(1)(b)(i); MSA 14.15(7524)(1)(b)(i).

Your final question is:

MCL 333.7524(1); MSA 14.15(7524)(1) provides, in pertinent part, for application of the proceeds of the sale of forfeited property:

Prior to the adoption of 1985 PA 135, subsection (1)(b) of MCL 333.7524; MSA 14.15(7524), as expressed in 1982 PA 251, provided that the sale proceeds of forfeited property after payment of expenses relating to the forfeiture be divided between the state and the entity or entities having budgetary authority over the seizing agency. Under the statute (as set forth in 1982 PA 251) which was in force prior to the adoption of 1985 PA 135, the proportionate allocation was 25% to the state (to the credit of the Department of Public Health for substance abuse primary prevention services) and 75% to the entity or entities having budgetary authority over the seizing agency (for law enforcement efforts pertaining to Article 7). 1985 PA 135, which eliminated the foregoing percentage division between the state and the entity or entities having budgetary authority over the seizing agency, became effective on September 30, 1985.

A review of 1985 PA 135 discloses that there is no savings clause making the previous legislation applicable to pending forfeitures. By contrast, Article 7 utilized various savings clauses to make the prior law applicable to pending controlled substance enforcement actions at the time Article 7 was adopted. See MCL 333.7123; MSA 14.15(7123), particularly subsection (2) thereof which provides:

It is my opinion, in answer to your final question, that in the absence of an express savings clause pertaining to the disposition of the proceeds of forfeited property under Article 7 of the Public Health Code, there is no authority, after September 29, 1985, for a 25%--75% allocation of forfeiture proceeds between the state and local governmental units, regardless of the date of seizure of the property.

Frank J. Kelley

Attorney General