Opinion
Docket No. 95776.
Decided January 20, 1988.
Nathan T. Fairchild, Prosecuting Attorney, and Frank C. Riley, Assistant Prosecuting Attorney, for appellant.
Graham T. Teague, for appellee.
Before: HOOD, P.J., and R.M. MAHER and J.B. SULLIVAN, JJ.
The Lenawee County prosecuting attorney appeals as of right from a September 5, 1986, circuit court order dismissing his forfeiture action against a 1981 Buick two-door Riviera and a September 23, 1986, order denying his motion for reconsideration. The trial court held that, pursuant to MCL 333.7523; MSA 14.15(7523), forfeiture proceedings had not been instituted promptly and that the bond requirement in the forfeiture statute was unconstitutional. We affirm the trial court's dismissal of the action.
Factually, on November 7, 1985, Princilla Bryant Prince, one of the registered owners of the vehicle, was arrested for the delivery of a controlled substance, to wit, marijuana. At that time the vehicle was seized pursuant to MCL 333.7521(1)(d); MSA 14.15(7521)(1)(d).
On November 27, 1985, Prince, Frazier Walker and Charles Buie filed a claim of interest regarding the vehicle and requested that the vehicle be returned to its proper owner, Frazier Walker. Prince and Buie alleged that they were not the owners of the vehicle, as they had sold it to Walker on October 23, 1985. Walker, however, had not officially transferred title by November 7, 1985. In addition, the claimants alleged that they did not have $250 as required for bond and that the bond requirement was unconstitutional.
On January 2, 1986, the circuit court entered an order denying the motion to suspend bond. On January 6, 1986, the $250 bond was posted.
Prince, Buie and Walker then moved for summary disposition. The court entered an order on April 10, 1986, denying the motion and determining that Prince and Buie were owners of the seized vehicle on November 7, 1985.
The prosecutor commenced forfeiture proceedings on May 20, 1986. Prince, Buie and Walker moved to dismiss, alleging a failure to promptly institute proceedings. In a written opinion dated August 14, 1986, the court dismissed the action, concluding that the prosecutor had failed to institute forfeiture proceedings promptly, as required by the statute, and that the statutory bond requirement was unconstitutional as a denial of equal protection and due process of law.
The prosecutor's motion for reconsideration was denied on September 23, 1986.
The prosecutor argues that the trial court erred in dismissing the forfeiture proceedings for a failure to "promptly" institute proceedings as required by § 7523 of the Public Health Code, MCL 333.7523; MSA 14.15(7523), which provides in relevant part:
(1) In case of a seizure pursuant to section 7522, forfeiture proceedings shall be instituted promptly. If seizure is made without process as provided under section 7522, and the total value of the property seized does not exceed $100,000.00, the following procedure shall be used:
* * *
(b) Any person claiming an interest in property which is the subject of a notice under subdivision (a) may, within 20 days after the receipt of the notice or of the date of the first publication of the notice, file a claim with the local unit of government or the state expressing his or her interest in the property. Upon the filing of the claim, and the giving of a bond to the local unit of government or the state in the amount of $250.00 with sureties approved by the local unit of government or the state conditioned that in case the property is ordered forfeited by the court the obliger shall pay all costs and expenses of the forfeiture proceedings, the local unit of government or the state shall transmit the claim and bond with a list and description of the property seized to the attorney general, the prosecuting attorney for the county, or the city or township attorney for the local unit of government in which the seizure was made who shall promptly institute forfeiture proceedings after the expiration of the 20-day period. [Emphasis added.]
The prosecutor contends that forfeiture proceedings were instituted "promptly" on May 20, 1986, which was approximately forty days following the April 10, 1986, circuit court order determining ownership in the seized vehicle. By contrast, the claimants argue that the prosecutor was informed who claimed an interest in the vehicle by November 27, 1985, and should therefore have instituted forfeiture proceedings "promptly" after the claim of interest was filed.
The prosecutor counters that forfeiture proceedings could not have been properly commenced until the "true owner(s)" of the vehicle was determined. To do otherwise would needlessly draw unnecessary parties into litigation contrary to DR 7-102(A)(1). We find no merit to this claim. All interested parties, Prince, Walker and Buie, had already submitted to the jurisdiction of the court on November 27, 1985, by filing a claim of interest in the seized vehicle in accordance with § 7523. Contrary to the prosecutor's contention, a forfeiture action was precisely the procedure sought by the claimants. Thus, a forfeiture action would not serve to "harass" or "maliciously injure another."
We also conclude that the prosecutor failed to file the instant forfeiture action promptly. The statute, in clear and unambiguous language, requires that the prosecuting attorney or other designated official "shall promptly institute forfeiture proceedings after the expiration of the 20-day period." We agree with prior decisions that use of the word "shall" connotes a mandatory duty imposed by law. Southfield Twp v Drainage Bd for Twelve Towns Relief Drains, 357 Mich. 59, 76; 97 N.W.2d 821 (1959); Sharp v Huron Valley Bd of Ed, 112 Mich. App. 18, 20; 314 N.W.2d 785 (1981). If a statute is clear and unambiguous on its face, judicial interpretation to vary the plain meaning of the statute is precluded; the Legislature must have intended the meaning it plainly expressed, and the statute must be enforced as written. Nerat v Swacker, 150 Mich. App. 61, 64; 388 N.W.2d 305 (1986), lv den 426 Mich. 857 (1986); Todd v Textron, Inc, 140 Mich. App. 412, 419; 364 N.W.2d 718 (1985), lv den 423 Mich. 852 (1985); Hiltz v Phil's Quality Market, 417 Mich. 335, 343; 337 N.W.2d 237 (1983).
In the instant case, the vehicle was seized on November 7, 1985. Claimants filed a claim of interest on November 27, 1985, and posted bond on January 6, 1986. However, forfeiture proceedings were not instituted until May 20, 1986, 6 1/2 months after the vehicle was seized, six months after the claim of interest was filed and 4 1/2 months after the final requirement of posting bond was met. We find that even a strained construction of the statute could not encompass such a time period as being "prompt." Consequently, the trial court did not err in dismissing this case.
The prosecutor's reliance on People v One 1979 Honda Auto, 139 Mich. App. 651; 362 N.W.2d 860 (1984), is unavailing. In that case, there was a 2 1/2-month delay between seizure of the vehicle and the commencement of forfeiture proceedings. By contrast, in the present case over 6 1/2-months elapsed between the time the vehicle was seized and the time the proceedings were instituted.
As this case was properly dismissed for the aforementioned reasons, we find it unnecessary to address the constitutionality of the statutory bond requirement.
Affirmed.