MICHIGAN Ex Rel WAYNE COUNTY PROSECUTOR v. BENNIS

Cavanagh, C.J.

(dissenting). As Mr. Rogers would say, "It’s a wonderful day in the neighborhood.” In this public nuisance abatement case, the focus should be clear: Was the defendants’ vehicle an abatable public nuisance? I cannot agree with the lead opinion’s mystical concept that under the statute we can call the condition of an entire neighborhood a public nuisance. Nor can I agree with its invention that any vehicle contributing to this condition can be abated.

I remain unconvinced that the conduct at issue in the instant case comes within the scope of the public nuisance abatement statute. Assuming arguendo that it does, I do not believe that a single incident, absent circumstances giving rise to a reasonable inference of habitual and continuing nuisance activity, is sufficient to support abatement. Therefore I dissent.

I. THE SINGLE INSTANCE OF ACTIVITY ISSUE

Assuming arguendo that the conduct did fall within the scope of the public nuisance abatement statute, the issue becomes whether a single in*745stance of that conduct establishes an abatable public nuisance.

The lead opinion states:

[W]e must next determine whether an act of prostitution committed in a neighborhood known for illicit activity is within the purview of the statute. [Ante, pp 729-730.]

There are serious flaws with the mystical concept that follows. The lead opinion examines the evidentiary provision of the statute and finds the word "place.” Yet, "place” is already used in the statutory provision that defines an abatable public nuisance, i.e., § 3801: "Any building, vehicle, boat, aircraft, or place . . . .” MCL 600.3801; MSA 27A.3801.

The lead opinion reasons:

The nuisance abatement statute’s use of the disjunctive "or” allows us to consider the reputation of the vehicle or the place to determine whether a nuisance exists. [Ante, p 733.]

The lead opinion then relies on the dictionary definition of "place” to reach "neighborhood.” Relying on testimony about prostitutes in the neighborhood, the lead opinion concludes that this "condition” of the neighborhood is a public nuisance.

Note, the lead opinion would not hold that the vehicle is the nuisance. It cites People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570; 17 NW2d 756 (1945), as support. In Sill, the car that was used for gambling purposes was declared the nuisance. Id. at 572. It also cites State ex rel Wayne Co Prosecuting Attorney v Bernstein, 57 Mich App 204; 226 NW2d 56 (1974). In Bernstein, the bar where the prostitutes were soliciting was declared the nuisance. Id. at 205. It also relies on *746State ex rel Attorney General v Robinson, 250 Mich 99; 229 NW 403 (1930). There, the apartment where the act of prostitution occurred was declared the nuisance. Id. at 104. None of these cases supports the holding that the condition is the nuisance.

The lead opinion addresses the single incident issue in one short passage. It relies on State ex rel Attorney General v Robinson, supra.

In Robinson, the defendant’s building contained fifty apartments. The building had a reputation for prostitution. A police officer witnessed a solicitation outside the building, watched two persons go into the building, and arrested the pair when they came out of the building. The woman told the officer that they had used apartment 404. The trial court abated twenty-two of the apartments. This Court reversed the abatement order with respect to twenty-one of the apartments on the basis of the statutory provision that the nuisance activity must have occurred within thirty days of filing the complaint. Id. at 103. Since only the particular incident in apartment 404 had occurred within the thirty days preceding the filing of the complaint, the Court found that abatement of the other twenty-one apartments was improper. However, it abated apartment 404 on the basis of the incident observed by the police officer and because the Court found that the activity in that apartment was not an isolated event on the basis of the reputation of the building. Id. at 103-104.

Robinson is clearly distinguishable. The apartment was a permanent part of the building. Therefore, the reputation of the building is logically relevant to a permanent part of the building. Contrary to the statement of the lead opinion that the building in Robinson could not be abated, the Robinson Court stated that "if the apartment was *747not identified, then the whole house might be closed.” Id. at 104. Conversely, the vehicle in the instant case was not a permanent part of the "condition,” as the lead opinion defines it. Furthermore, because the proper focus in this case is on the vehicle that the plaintiff sought to abate, the reputation of the area is not relevant to whether this particular vehicle is a public nuisance where the vehicle was not permanently connected to the area. Additionally, there is no evidence that continuing nuisance activity was occurring in this vehicle.

In the instant case, the lead opinion would hold:

Where testimony surrounding proof of an incident of prostitution unequivocally establishes that the neighborhood has a reputation for prostitution, the property contributing to the continuance of the nuisance may be abated pursuant to the statute. [Ante, p 737.]

The subject of the holding, "property contributing to the continuance of the nuisance,” is far too broad and unlimited in scope.

The prosecutor brought this action to abate the defendants’ vehicle. The public nuisance abatement statute provides:

Any . . . vehicle, . . . used for the purpose of lewdness, assignation or prostitution ..., is declared a nuisance, . . . and all . . . nuisances shall be enjoined and abated as provided in this act and as provided in the. court rules. [MCL 600.3801; MSA 27A.3801.]

The prosecution established only one incident of sexual activity involving this vehicle. Further, there was no evidence to create a reasonable inference that the sexual activity in this vehicle was habitual or continuing.

*748The Court of Appeals majority followed the approach taken in State ex rel Oakland Co Prosecutor v Motorama Motel Corp, 105 Mich App 224; 307 NW2d 349 (1981), to find that a single incident of lewdness was not sufficient. The Bennis majority reasoned:

The Motorama approach best effectuates the purpose of the statute. The abatement statute was enacted to subject houses of prostitution to abatement as nuisances. State ex rel Wayne Co Prosecutor v Diversified Theatrical Corp, 396 Mich 244, 246-250; 240 NW2d 460 (1976). The purpose of the act has also been described as eliminating the use of property in connection with gambling, prostitution, and the illicit sale of liquor. People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 575; 17 NW2d 756 (1945); State ex rel Oakland Prosecuting Attorney v Ginell, 159 Mich App 679, 681-682; 407 NW2d 59 (1987). The statute is not intended to regulate the morality of individuals, or to prevent incidents of immorality in, for example, hotels that are otherwise respectable establishments. See Diversified Theatrical Corp, supra, 247.
As in Motorama, we hold that a single incident is insufficient to establish a nuisance. Further, the circumstances of this case do not permit a reasonable inference that the conduct was habitual. In this case, the prosecution has alleged only a single incident to support the contention that defendants’ car was a nuisance. While the prosecution discusses at length the reputation and record of . . . the woman found in the car with Mr. Bennis, this does not establish that defendants’ car was used on more than that occasion for lewdness, assignation, or prostitution. Similarly, testimony was presented that Mr. Bennis was seen on more than one occasion driving in that area and talking to women. Not only does this observed conduct not prove that defendant was involved in lewdness, assignation, or prostitution, there was no evidence to establish that this conduct, if it occurred, took *749place in the vehicle in question. In fact, defendants allegedly purchased the car only three weeks before the incident that gave rise to this action. [200 Mich App 675-676.]

In Motorama,1 the panel stated that "[a] nuisance involves the notion of repeated or continuing conduct and should not be based upon proof of a single isolated incident unless the facts surrounding that incident permit the reasonable inference that the prohibited conduct was habitual in nature.” Motorama at 229-230, citing People ex rel Wayne Prosecuting Attorney v Bitonti, 306 Mich 115, 119-120; 10 NW2d 329 (1943).

I would continue this limitation.2 The New York Court of Appeals similarly follows this approach:

[W]e do not hold, that any premises on which an isolated act of lewdness, assignation or prostitution occurs is subject to the remedies of [the houses of prostitution abatement statute]. Rather, we agree . . . that "the People will have to show a consistent pattern of conduct sufficient to prove that the premises are being employed for a proscribed use.” *750The most significant factors in making this factual determination will be the frequency of the conduct, the knowledge or even encouragement by the defendant of its existence, and the extent of the benefit, direct or indirect, derived by defendant from such activity. [People ex rel Arcara v Cloud Books, Inc, 65 NY2d 324, 331; 491 NYS2d 307; 480 NE2d 1089 (1985) (emphasis added) (citation omitted), rev’d on other grounds 478 US 697 (1986) (first amendment issue), modified on remand 68 NY2d 553; 510 NYS2d 844; 503 NE2d 492 (1986).][3]

Further, the public nuisance abatement statute is aimed at property that has become so associated with the activity that it has become part of the activity. In State ex rel Carroll v Gatter, 43 Wash 2d 153, 160; 260 P2d 360 (1953), the Washington Supreme Court construed its state’s "red-light” statute, which, like Michigan’s "red-light” statute, i.e., the public nuisance abatement statute, was derived from the Iowa abatement statute. 4 It explained the function of the statute:

To sustain the application of the act, it must be shown to the satisfaction of the court, by a preponderance of the evidence, that the premises were being used as a house of lewdness, assignation, or prostitution as that term is generally understood. The "use” of the premises of which the statute speaks, requires more than a showing that sporadic acts of prostitution occurred therein. . . .
The statute is not directed to the abatement of commercial eroticism—that is governed by the criminal statutes. It is directed to the abatement of premises which, by reason of sufficient happenings therein, have absorbed and taken the charac*751ter of the acts committed, and have in fact become houses of lewdness, assignation or prostitution. [Id. at 160. Emphasis added.]

Additionally, the use of the vehicle in the instant case is distinguishable from the use of vehicles in the "numbers racket” gambling cases because the use of the Bennis vehicle was not "essential” to the act of gross indecency. The vehicle was merely a convenient location. By contrast, this Court has held that in the numbers racket situation "[t]he use of automobiles as essential tools in this type of gambling is generally recognized.” Sill at 575 (emphasis added). Where the vehicle is an essential tool to accomplish continuing nuisance activity, the argument that a single act is sufficient is much stronger.

In the instant case, I would find that there was no evidence to support a reasonable inference of continuing or habitual illegal activity. Therefore, it was improper to abate the defendants’ vehicle.

II. THE KNOWLEDGE ISSUE

As explained above, I do not believe that the conduct at issue was within the scope of the public nuisance abatement statute, nor was it proven to be of a continuing nature. However, in anticipation of cases that do involve proscribed nuisance activity, I address the proof of knowledge issue.

Beginning with People v Schoonmaker, 241 Mich 177; 216 NW 456 (1927),5 two lines of contrary precedent have developed through Michigan *752case law regarding whether the plaintiff must show that the owner of the property knew that the nuisance activity was occurring before the property can be abated.6 In the instant case, the lead opinion addresses the issue and concludes that proof of knowledge is not required. The statute clearly provides that proof of knowledge is not required.7 And, although abating the property of innocent owners in forfeiture actions arguably does not violate an owner’s constitutional right to due process,8 that does not make such forfeitures fair or equitable.

*753The abatement of public nuisances is an equitable action. MCL 600.3805; MSA 27A.3805. See MCR 3.601; 58 Am Jur 2d, Nuisances, § 321, pp 911-912. As such, the trial court has broad discretion to fashion an appropriate remedy.9 58 Am Jur 2d, Nuisances, § 355, pp 946-947. Historically, an equity court would not enjoin criminal activity, except in nuisance cases. See Dobbs, Remedies (2d ed), § 2.9(3), p 169. One must remember that the public nuisance abatement action arose in equity because the available legal remedies, i.e., criminal penalties, were inadequate to stop future and continuing injury.10 Correspondingly, equity courts have shown reluctance to intervene where the activity is criminal. In People v Lim, 18 Cal 2d 872; 118 P2d 472 (1941), the California Supreme Court considered whether a gambling establishment could be abated in the absence of a specific statutory provision. It explained the reluctance of equity courts to intervene:

Conduct against which injunctions are sought in behalf of the public is frequently criminal in na*754ture. While this alone will not prevent the intervention of equity where a clear case justifying equitable relief is present . . ., it is apparent that the equitable remedy has the collateral effect of depriving a defendant of the jury trial to which he would be entitled in a criminal prosecution for violating exactly the same standards of public policy. . . . The defendant also loses the protection of the higher burden of proof required in criminal prosecutions and, after imprisonment and fine for violation of the equity injunction, may be subjected under the criminal law to similar punishment for the same acts. For these reasons equity is loath to interfere where the standards of public policy can be enforced by resort to the criminal law, and in the absence of a legislative declaration to that effect, the courts should not broaden the field in which injunctions against criminal activity will bé granted. [Id. at 880. Emphasis added.]

Particularly, where there is no evidence that the conduct at issue will be continuing in the future, the court should hesitate to exercise its equitable powers to abate the property.11

Consequently, I would hold that the trial court, exercising its equitable discretion, should consider the equities and circumstances of each case and tailor the remedy to fit the situation. See People ex rel Wayne Prosecuting Attorney v Tate, 306 Mich 667, 669; 11 NW2d 282 (1943) (the decision to deny an abatement order is within judicial discretion).

The Court in People v Garner, 732 P2d 1194 (Colo, 1987), illustrated the remedial possibilities for situations involving innocent parties.12 The *755Garner court noted the equitable powers of the trial court:

Our construction of the Public Nuisance Statute to require the forfeiture of a jointly owned vehicle determined to be a public nuisance, even though one of the co-owners is innocent of any wrongdoing, does not mean that the innocent party’s interest in the vehicle may not be recognized and conserved. On the contrary, an action for the abatement of a . . . public nuisance is equitable in nature, . . . and while a court in the exercise of its equity powers may not act contrary to statutory mandate, it does retain a considerable degree of discretion and flexibility in fashioning a decree that achieves a fair result under the particular circumstances of the case. ... In a forfeiture situation, therefore, a court retains the authority to protect, to the extent practicable and within the framework of the statutory dispositional alternatives, the interest of the innocent party. [Id. at 1197. Citations omitted.]

For instance, a trial court could order the property sold, with proportionate net proceeds to be paid to innocent owners, or the court could allow the innocent owners to bid at the sale and acquire full ownership interest, or the government agency itself could pay the proportionate net worth directly to the innocent owners. By leaving such a determination to the equitable discretion of the trial court, each case will be decided on its own merits._

*756In the instant case, the vehicle was jointly owned by Mr. and Mrs. Bennis. Mrs. Bennis had no knowledge that her husband used the vehicle to engage in an act of gross indecency. Assuming arguendo that his conduct came within the reach of the abatement statute, I would hold that the trial court should tailor a remedy to protect her property interest.

In reaching its conclusion that Mrs. Bennis’ property interest may be abated, the lead opinion cites People v One 1979 Honda Automobile, 139 Mich App 651; 362 NW2d 860 (1984), to support its proposition that proof of knowledge is not required. Its reliance is misplaced. There, the arrangement between the co-owners, a father and his daughter, was really a secured transaction.13 The father loaned his daughter money to purchase the car. The daughter was the sole driver of the car. The forfeiture action arose because of her use of the car to make a delivery of marijuana. In the drug statute forfeiture provisions there is an exemption for innocent owners. The issue was whether the father’s lack of knowledge exempted the vehicle from forfeiture. Instead, the panel focused on the daughter’s knowledge and found it sufficient to support forfeiture. The panel did not address the eifect of forfeiture on the father’s interest. Additionally, 1979 Honda did not arise under the nuisance abatement statute. Further, this case is factually distinguishable because Mr. and Mrs. Bennis owned the vehicle as joint owners —not as lender/borrower.

The lead opinion tries to distinguish In re Forfeiture of $53, 178 Mich App 480; 444 NW2d 182 *757(1989), because it was based on statutory construction—not constitutional violation. There, the panel thoroughly considered the statutory "innocent owner” defense found in MCL 333.7521; MSA 14.15(7521). The panel examined federal and state law interpretations. The panel concluded:

To summarize, we conclude that § 7521(l)(d)(ii) was intended to establish a separate defense for each claimant who has a personal interest in the property as an owner. Hence, where the prosecution commences an action against a conveyance that is used for unlawful narcotics activity, the forfeiture of the res is subject to the interest of a co-owner who proves that the proscribed act was done without his or her knowledge or consent, express or implied. The state may only forfeit the ownership interest of the noninnocent owner. If, for example, the innocent owner has a fifty percent interest in the vehicle, the property may be sold and the proceeds divided equally between the state and the innocent co-owner. [Forfeiture of $53 at 495-496. Emphasis added.]

Even though this Forfeiture of $53 arose under a different statute, I believe that it supports an approach that protects innocent co-owners.

In the case at bar, the lead opinion also cites In re 1976 Blue Ford Pickup, 120 Ariz 432; 586 P2d 993 (Ariz App, 1978). While it is true that the court upheld the forfeiture of the mother’s joint interest in the truck, the court did so after focusing on the unique facts of the case.14 Arguably, the case was the exception to the general rule. The vehicle was titled in the names of mother or son. Under Arizona law, such a title allows either joint owner to transfer complete ownership interest in *758the vehicle without consent of the other.15 Further, the son had exclusive possession of the vehicle in another state. Unfortunately for the mother, she could have preserved her interest had she been a secured creditor, rather than co-owner. Id. at 435.

Notwithstanding its determination of the outcome, the Blue Ford Pickup court cited with approval the general rule that innocent owners will not lose their interests:

"[A]n automobile may not be forfeited . . . unless the owner has some connection with the unlawful act, or intended to permit the automobile to be used by a third person in the commission of the unlawful act, or had knowledge it was to be so used. This is in line with the trend of the more recent decisions of the United States Supreme Court in the protection of constitutional rights, both of person and property.” [Id. at 434, quoting In re One 1965 Ford Mustang, 105 Ariz 293, 300; 463 P2d 827 (1970). Emphasis added.]

III. CONCLUSION

I disagree with the conclusion of the lead opinion that the "condition” of the "neighborhood” is the public nuisance. I also disagree with the position of the lead opinion that a single act of prohibited conduct is sufficient to support abatement, without evidence that the conduct is habitual or continuing. Public nuisances, by their very nature, imply a continuing condition. The public nuisance abatement statute is aimed at property that has become so associated with an activity that it has become part of the activity. In the instant case, the vehicle was only a convenient site for the activity to occur. This situation is far different *759from shutting down a building, i.e., a brothel or a crack house, that has become so associated with the illegal activity that it has become part of the activity. Here, the vehicle can be driven out of the "neighborhood” without becoming permanently tainted as a lewd or prostitution vehicle. Additionally, this situation is far different from shutting down a gambling operation that, as an essential part of its operation, uses the vehicles to transport betting slips and money.

In conclusion, I would hold that the activity that occurred in this vehicle is insufficient to subject it to abatement under the public nuisance abatement statute.

I would affirm the judgment of the Court of Appeals.

Levin and Brickley, JJ., concurred with Cavanagh, C.J.

In Motorama, the defendant’s hotel was across the street from a bar that was frequented by persons engaged in prostitution. The Court held that the single incident at the hotel was insufficient to support abatement of a nuisance.

See 58 Am Jur 2d, Nuisances, § 77, p 730:

Nuisance, as a general rule, involves the idea of continuity or recurrence; the maintenance of a nuisance ordinarily implies a continuity of action over a substantial period of time, and the continuance of the acts constituting the nuisance for an unreasonable period. Thus, it has been said that to constitute a nuisance there must be a continuousness or a recurrence of the acts by which it is created.

See, generally, Glesner, Landlords as cops: Tort, nuisance & forfeiture standards imposing liability on landlords for crime on the premises, 42 Case W Res LR 679, 716-737 (1992). "Arrests can constitute evidence of a nuisance, but they must be sufficiently frequent to establish a habitual illegal use of the property.” Id. at 732 (emphasis added).

See also New York City v Big Apple Spa, 130 Misc. 2d 920, 923; 497 NYS2d 988 (1986): "One incident of prostitution has been established. An isolated incident is, of course, not enough.”

See State ex rel Wayne Co Prosecutor v Diversified Theatrical Corp, supra at 246-247.

In Schoonmaker, the Court considered whether a public dance hall was an abatable public nuisance under an earlier version of this statute. The defendants did not serve alcohol on the premises, but some of their patrons secretly slipped outside the building during the dance to consume alcohol. The Court addressed the threshold of conduct required on the part of the defendant:

*752Defendants did not maintain a nuisance unless they permitted such illegal use of the premises; that is, consented to it or acquiesced, and whether they did so was a question of fact ....
One inviting the public to his place for commercial purposes must take care not to invite or acquiesce in transgressions of the law. That transgressions may happen is possible, but remain offenses of the wrongdoer unless tolerated by the occupant to the extent of permissive use of the premises for such purpose or indifference thereto. The statute does not deprive one person of the use of his property by reason of the illegal acts of another, unless the owner’s use bears a participating relation to the violation. [Id. at 181.]

See State ex rel Wayne Co Prosecuting Attorney v Levenburg, 406 Mich 455, 462, n 1; 280 NW2d 810 (1979); State ex rel Oakland Co Prosecutor v Motorama Motel Corp, supra at 228; State ex rel Wayne Prosecuting Attorney v Weitzman, 21 Mich App 705, 710-711; 176 NW2d 463 (1970).

Other cases held that the statute obviated the need for proof of knowledge. See Bitonti at 119 (plurality); Robinson at 103; State ex rel Oakland Prosecuting Attorney v Weaver, 74 Mich App 462, 464; 254 NW2d 68 (1977).

MCL 600.3815; MSA 27A.3815.

See Calero-Toledo v Pearson Yacht Leasing Co, 416 US 663; 94 S Ct 2080; 40 L Ed 2d 452 (1974).

In the instant case, after reviewing cases from the United States Supreme Court, the majority states:

The United States Supreme Court indisputably allows forfeiture of an innocent owner’s property, unless evidence was submitted that the property was stolen or used without the consent of the owner. [Ante, p 742.]

*753This statement sweeps too broadly. The statement should be limited to due process considerations. The United States Supreme Court has recently held that forfeitures of property under 21 USC 88Í, the drug forfeiture statute, are subject to the excessive fines constitutional provision. Austin v United States, 509 US —; 113 S Ct 2801; 125 L Ed 2d 488 (1993).

This Court has recognized this broad authority: "Of the transcendent power in an equity court, under its general jurisdiction, to restrain and abate a continuing public nuisance for which, by reason of its extent and nature, there is no plain and adequate legal remedy, there can be no question.” Detroit v Highland Park, 186 Mich 166, 182; 152 NW 1002 (1915).

See Marsland v Pang, 5 Hawaii App 463, 475-478; 701 P2d 175 (1985) (reviewing an equity action for nuisance abatement). See, generally, Patterson, California land use regulation post Lucas: The history and evolution of nuisance and public property laws portend little impact in California, 11 UCLA J of Envtl & Poly L 175, 186-197 (1993) (history of public nuisance). See Lucas v South Carolina Coastal Council, 505 US 1003; 112 S Ct 2886; 120 L Ed 2d 798 (1992).

See 58 Am Jur 2d, Nuisances, §324, p 913 ("injunctive relief against nuisances should be cautiously given”).

The Gamer court explained:

[T]he court in the exercise of its equity powers had the *755authority to order a sheriff’s sale of the vehicle on the condition that one-half of the proceeds of the sale, after deduction of fees and costs incident to the seizure and the abatement action, be paid to [the ex-wife], or that [the ex-wife] be given the opportunity to bid at the sheriff’s sale on the forfeited interest of [the husband] and thereby acquire the entire interest in the vehicle, or that the vehicle be delivered to the seizing agency . . . upon the agency’s payment of one-half of the fair market value of the vehicle to [the ex-wife]. [Id. at 1198-1199.]

A father and a daughter were co-title owners of the car. However, the father did not live with his daughter, his address was not on the registration, the daughter had sole possession of the car, and she paid all the insurance premiums.

The mother bought the car with her own money and originally titled the car in her name and her son’s name. The son moved to Arizona, and the title was changed to mother or son. Id. at 433-434.

The statute requires consent to such transfers at the time joint owners obtain such a certificate of title.