E. E. Borradaile, J.
The state was granted immediate consideration and leave to appeal the circuit court’s denial of its petition for an
ex parte
temporary restraining order. The state sought to restrain defendant, a resident of Southern Michigan State Prison, from negotiating or transferring a check for $4,035.49, received by defendant as earned contributions to a pension fund which was terminated by his incarceration.
The state seeks to proceed under the Prison Reimbursement Act (hereafter the act), MCL 800.401
et seq.;
MSA 28.1701
et seq.,
which requires wardens at the state prisohs at Jackson, Marquette, and Ionia to send to the auditor general certain records which include the financial status of all residents of the institutions. The check was discovered when defendant’s incoming mail was opened, allegedly for security reasons.
The circuit court, apparently relying on
Co-chrane v Westwood Wholesale Grocery Co,
394 Mich 164; 229 NW2d 309 (1975), denied the state’s request, finding that an
ex parte
order as requested would amount to prejudgment garnishment.
The state, limiting its appeal solely to the question of whether the granting of an
ex parte
temporary restraining order in conjunction with the Prison Reimbursement Act is tantamount to the issuance of a prejudgment garnishment, argues that the Legislature has made a resident of a state penal institution liable for the cost of his incarcer
ation, and that the state, through the act, occupies a superior position to an ordinary creditor. It distinguishes the garnishment situation where the alleged debtor is deprived of money or property without a prior determination of liability from the present case where defendant’s liability is statutorily determined and where defendant may obtain a hearing upon 24 hours notice. See GCR 1963, 718.2.
Defendant, who had counsel appointed for him after the state filed its application for an emergency appeal, now argues that the search and seizure of his check was unreasonable, that the state’s complaint fails to state a cause of action, that the act is unconstitutional in a number of regards, and that the state occupies the role of an ordinary creditor and thus is subject to the prejudgment garnishment rule.
We address only the final issue presented by defendant, since failure to raise the other issues in the trial court precludes appellate review. We find that the trial judge erred and reverse.
The Supreme Court in
Cochrane, supra,
relying on
North Georgia Finishing, Inc v Di-Chem, Inc,
419 US 601; 95 S Ct 719; 42 L Ed 2d 751 (1975), held that prejudgment garnishments were unconstitutional, except as provided by 1974 PA 371, § 1, eif April 1, 1975, as amended MCL 600.4011; MSA 27A.4011.
The state properly argues that § 4 of the act, MCL 800.404; MSA 28.1704, imposes a statutory duty on a resident of a state penal institution to pay for the cost of his incarceration.
The act
requires the auditor general or a prosecuting attorney for the county from which a prisoner is sentenced to file a petition praying for the appointment of a guardian if a prisoner is possessed of or becomes possessed of any estate. The circuit court from which the prisoner is sentenced and to which the petition must be made is then required to "issue a citation to show cause why the prayer of the petitioner should not be granted”. In the present case, no such hearing has yet been scheduled.
Section 4 does not provide any time limitation for the show cause hearing. However, GCR 1963, 718.2 permits hearings on motions to dissolve preliminary injunctions or restraining orders which were granted without notice, within 24 hours or less. Such motions are required to take precedence
over all matters except older matters of the same character.
The two cases which have dealt with the act,
Auditor General v Hall,
300 Mich 215; 1 NW2d 516 (1942), and
Auditor General v Olezniczak,
302 Mich 336; 4 NW2d 679 (1942), do not furnish much assistance in this case because the preliminary question involved here was not at issue in those cases, although
Hall, supra,
221, affirmed the statutory obligation of a prisoner to pay the expenses of his incarceration.
The United States Supreme Court, dealing with the due process issue of prejudgment property seizures in
Fuentes v Shevin,
407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972),
reh den
409 US 902; 93 S Ct 177; 34 L Ed 2d 165 (1972), and
Mitchell v W T Grant Co,
416 US 600; 94 S Ct 1895; 40 L Ed 2d 406 (1974), held that seizure of property in which the claimant has no interest without a bond requirement and without an opportunity for a
prompt hearing to test the merits of the claim and the validity of the seizure was a violation of due process. However,
Fuentes, supra,
did indicate that a summary seizure of property is allowed to collect governmental revenues. The Court stated:
"Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.” (Footnote omitted.)
Id.,
90-91.
In the strictest sense, a prejudgment garnishment is the process of attaching money or goods due a defendant in the hands of a third party. In this case, the effect of a restraining order is to prevent the alleged debtor from disposing of his property, pending a hearing to determine if he has property which "ought to be subjected to the claim of the state * * *”. MCL 800.404; MSA 28.1704. This provision is not unlike other
ex parte
restraining orders issued to prevent disposal of property while a case is pending.
An important governmental interest, a clearly expressed legislative intent that residents of correctional institutions reimburse the state for their incarceration if they are financially able to do so, is involved. Before the order can issue, a judicial officer is required to determine that the verified complaint or affidavit shows that immediate and
irreparable injury, loss, or damage will occur. A prompt hearing is required after the party restrained has actual notice of the order. See GCR 1963, 718.3, 718.9.
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E. E. Borradaile, J.
The state was granted immediate consideration and leave to appeal the circuit court’s denial of its petition for an
ex parte
temporary restraining order. The state sought to restrain defendant, a resident of Southern Michigan State Prison, from negotiating or transferring a check for $4,035.49, received by defendant as earned contributions to a pension fund which was terminated by his incarceration.
The state seeks to proceed under the Prison Reimbursement Act (hereafter the act), MCL 800.401
et seq.;
MSA 28.1701
et seq.,
which requires wardens at the state prisohs at Jackson, Marquette, and Ionia to send to the auditor general certain records which include the financial status of all residents of the institutions. The check was discovered when defendant’s incoming mail was opened, allegedly for security reasons.
The circuit court, apparently relying on
Co-chrane v Westwood Wholesale Grocery Co,
394 Mich 164; 229 NW2d 309 (1975), denied the state’s request, finding that an
ex parte
order as requested would amount to prejudgment garnishment.
The state, limiting its appeal solely to the question of whether the granting of an
ex parte
temporary restraining order in conjunction with the Prison Reimbursement Act is tantamount to the issuance of a prejudgment garnishment, argues that the Legislature has made a resident of a state penal institution liable for the cost of his incarcer
ation, and that the state, through the act, occupies a superior position to an ordinary creditor. It distinguishes the garnishment situation where the alleged debtor is deprived of money or property without a prior determination of liability from the present case where defendant’s liability is statutorily determined and where defendant may obtain a hearing upon 24 hours notice. See GCR 1963, 718.2.
Defendant, who had counsel appointed for him after the state filed its application for an emergency appeal, now argues that the search and seizure of his check was unreasonable, that the state’s complaint fails to state a cause of action, that the act is unconstitutional in a number of regards, and that the state occupies the role of an ordinary creditor and thus is subject to the prejudgment garnishment rule.
We address only the final issue presented by defendant, since failure to raise the other issues in the trial court precludes appellate review. We find that the trial judge erred and reverse.
The Supreme Court in
Cochrane, supra,
relying on
North Georgia Finishing, Inc v Di-Chem, Inc,
419 US 601; 95 S Ct 719; 42 L Ed 2d 751 (1975), held that prejudgment garnishments were unconstitutional, except as provided by 1974 PA 371, § 1, eif April 1, 1975, as amended MCL 600.4011; MSA 27A.4011.
The state properly argues that § 4 of the act, MCL 800.404; MSA 28.1704, imposes a statutory duty on a resident of a state penal institution to pay for the cost of his incarceration.
The act
requires the auditor general or a prosecuting attorney for the county from which a prisoner is sentenced to file a petition praying for the appointment of a guardian if a prisoner is possessed of or becomes possessed of any estate. The circuit court from which the prisoner is sentenced and to which the petition must be made is then required to "issue a citation to show cause why the prayer of the petitioner should not be granted”. In the present case, no such hearing has yet been scheduled.
Section 4 does not provide any time limitation for the show cause hearing. However, GCR 1963, 718.2 permits hearings on motions to dissolve preliminary injunctions or restraining orders which were granted without notice, within 24 hours or less. Such motions are required to take precedence
over all matters except older matters of the same character.
The two cases which have dealt with the act,
Auditor General v Hall,
300 Mich 215; 1 NW2d 516 (1942), and
Auditor General v Olezniczak,
302 Mich 336; 4 NW2d 679 (1942), do not furnish much assistance in this case because the preliminary question involved here was not at issue in those cases, although
Hall, supra,
221, affirmed the statutory obligation of a prisoner to pay the expenses of his incarceration.
The United States Supreme Court, dealing with the due process issue of prejudgment property seizures in
Fuentes v Shevin,
407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972),
reh den
409 US 902; 93 S Ct 177; 34 L Ed 2d 165 (1972), and
Mitchell v W T Grant Co,
416 US 600; 94 S Ct 1895; 40 L Ed 2d 406 (1974), held that seizure of property in which the claimant has no interest without a bond requirement and without an opportunity for a
prompt hearing to test the merits of the claim and the validity of the seizure was a violation of due process. However,
Fuentes, supra,
did indicate that a summary seizure of property is allowed to collect governmental revenues. The Court stated:
"Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.” (Footnote omitted.)
Id.,
90-91.
In the strictest sense, a prejudgment garnishment is the process of attaching money or goods due a defendant in the hands of a third party. In this case, the effect of a restraining order is to prevent the alleged debtor from disposing of his property, pending a hearing to determine if he has property which "ought to be subjected to the claim of the state * * *”. MCL 800.404; MSA 28.1704. This provision is not unlike other
ex parte
restraining orders issued to prevent disposal of property while a case is pending.
An important governmental interest, a clearly expressed legislative intent that residents of correctional institutions reimburse the state for their incarceration if they are financially able to do so, is involved. Before the order can issue, a judicial officer is required to determine that the verified complaint or affidavit shows that immediate and
irreparable injury, loss, or damage will occur. A prompt hearing is required after the party restrained has actual notice of the order. See GCR 1963, 718.3, 718.9. Though security is not required where the state is an applicant, the restrained party is protected by the state’s financial responsibility.
We are satisfied that an unusual situation referred to by the
Fuentes
Court,
supra,
exists in this case and that if the verified complaint or affidavit of the state complies with the requirements of GCR 1963, 718.2(1), issuance of an
ex parte
temporary restraining order is justified.
Reversed and remanded to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction except that this Court’s
ex parte
restraining order shall remain, in effect until the circuit court acts on plaintiffs complaint or affidavit.