Tag: property rights

Supreme Court Wastes Time, Money, and Opportunity to Protect Property Rights and Due Process

Yesterday the Supreme Court released its first four opinions in cases argued this term, the latest first-opinion release in recent history.  The only one that interests me – and it’s not Justice Sotomayor’s maiden effort – is the civil forfeiture case, Alvarez v. Smith.

Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various legal and policy issues — from property rights to due process.  The question in Alvarez was the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.

I blogged about the case here, and Cato adjunct scholar Ilya Somin wrote about it here. Cato’s also filed a brief in the case supporting the individuals whose property was seized.

Unfortunately, because all underlying disputes had been resolved by the time of oral argument – cars had been returned and the individuals have either forfeited their cash or accepted the state’s return of some of it – the Court determined the case to be moot.  It thus vacated the lower court’s opinion and remanded with instructions for that court to dismiss the case.

And that’s a shame.  While the dispute does seem to be moot with respect to the particular petitioners, this is obviously a situation “capable of repetition” but “evading review” – along the lines of that little-known case of Roe v. Wade.  That is, just like the case of a pregnant woman is moot within nine months, disputes over civil forfeiture get resolved one way or the other long before the slow turn of litigation reaches the Supreme Court.  By avoiding the merits of this case, the Court guarantees that the important constitutional questions presented by this case remain perpetually unresolved.

What is more, by vacating the Seventh Circuit’s opinion – an extraordinary remedy – the Court deprives Illinoisans of a well-reasoned and just ruling that could be used as precedent in future cases.  It also – and this is no small matter – wastes the time, effort, and resources of the parties and their attorneys, taxpayers (who obviously paid for the petitioners’ legal work here, as well as that of the judiciary), and, of course, amici (including Cato).

Justice Stevens was correct in his partial dissent: if the Court disagrees with the argument I made in the preceding paragraph, it should have applied the general rule against vacating judgments that have become moot because the parties settled.  The proper disposition here would have been to DIG the case – dismiss the writ of certiorari as improvidently granted (which allows the lower court ruling to remain on the books undisturbed).

A Victory for Property Rights

Ilya Shapiro warns us that the U.S. Supreme Court probably will not uphold property rights in a case involving Florida beachfront property.  But property rights did receive an unexpected boost in New York yesterday, where an appeals court overturned a taking for the benefit of Columbia University.

Reports the New York Times:

A New York appeals court ruled Thursday that the state could not use eminent domain on behalf of Columbia University to obtain parts of a 17-acre site in Upper Manhattan, setting back plans for a satellite campus at a time of discord over government power to acquire property.

In a 3-to-2 decision, a panel of the Appellate Division of State Supreme Court in Manhattan annulled the state’s 2008 decision to take property for the expansion project, saying that its condemnation procedure was unconstitutional.

The majority opinion was scathing in its appraisal of how the “scheme was hatched,” using terms like “sophistry” and “idiocy” in describing how the state went about declaring the neighborhood blighted, the main prerequisite for eminent domain.

The $6.3 billion expansion plan is not dead; an appeal has been promised, and Columbia still controls most of the land. But at a time when the government’s use of eminent domain on behalf of private interests has become increasingly controversial, the ruling was a boon for opponents.

“I feel unbelievable,” said Nicholas Sprayregen, the owner of several self-storage warehouses in the Manhattanville expansion area and one of two property owners who have refused to sell to the university. “I was always cautiously optimistic. But I was aware we were going against 50 years of unfair cases against property owners.”

New York state is not a particularly friendly venue to property rights, but the judges rightly saw through the claims made by state official to justify seizing property from a private person for the benefit of a private organization.  The ruling could be reversed, but nevertheless is an important affirmation that property rights warrant constitutional and legal protection even in New York.

Likely Supreme Court Tie Would Be a Loss to Property Owners

Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).

Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had – exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property.  After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.

As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”

I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat.  That is, Justice Stevens recused himself – he owns beachfront property in a different part of Florida that is subject to the same renourishment program – and the other eight justices are likely to split evenly.  And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.

By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here).  Justice Alito was fairly quiet but is probably in the same category as the Chief Justice.  Justice Thomas was typically silent but can be counted on to support property rights.  With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote.  Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.

For more analysis of the argument, see SCOTUSblog.  Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.

More Trade News

My colleague Dan Griswold pointed out yesterday some unfortunate editing in the Washington Post. Here are a couple of other trade-related items in the news recently:

  • Sen. Max Baucus (D, MT and Chairman of the Senate Finance Committee) has seemingly thrown his weight behind the idea of “border measures” (i.e., carbon tariffs).  After paying the semi-obligatory lip service to the United States’ obligations under international trade law – and I say only “semi-obligatory” because some U.S. lawmakers appear not to care about it at all – Baucus goes on to deliver this rhetorical gem:

    I think often the United States has to lead,” Baucus said, noting that what lawmakers come up could be used as a model for other countries to copy.

    So the U.S. would saddle its consumers with higher prices in exchange for little benefit environmentally and in the process risk retaliation and alienating countries who it insists are necessary for global cooperation on climate change?

    Some leadership.

    And it may well be that the Chinese have the jump on the United States here, in any case. They’re proposing to introduce a carbon tax of their own, to prevent double-taxation in the form of carbon tariffs by the developed countries (banned under WTO rules) and to keep the carbon tax revenue – collected, remember, from U.S. consumers! – for themselves, all while seeming to play nice on climate change. I bet those who proposed carbon tariffs are sorry they spoke out now. (HT: Scott Lincicome)

  • Brazil has published a list of over 200 mostly consumer and agricultural goods that would be subject to retaliatory tariffs as part of the on-going dispute over U.S. cotton subsidies (an excellent backgrounder to that dispute is available here).

    I note with sorrow that the list also contains intermediate goods, which of course would mean saddling Brazilian manufacturers with higher prices. Even if the Brazilian government isn’t too concerned about  burdening its consumers with extra taxes, rarely a concern of politicians apparently, you’d think they would hesitate to impose higher costs on manufacturers, who employ people.

    Again, it is important to draw a distinction here between the mercantalist political logic of retaliatory tariffs and the economic insanity of increasing costs to your own people in “retaliation” for the harm another country’s policies have done to you. (And no, I don’t count the “game-theory” argument as an “economic” one here. That is a fancy way of saying that in an international relations, i.e. political, sense, retaliation can bring about the desired change.  I’m talking about the fact that costs to consumers from tariffs – whatever their rationale – far outweighing the benefits that producers derive from protection). But this latest development is a sign that Brazil is serious about getting the U.S. to reform its agricultural policies, something it should be doing anyway.

    Brazil was, it should be noted, given permission from the WTO to suspend intellectual property rights protections as a form of retaliation, a new but increasingly attractive way of exacting retribution, but only after a certain amount of damages had been collected the usual way.

  • Thursday Links

    • Cato’s David Rittgers debates troop build up in Afghanistan.

    Due Process Case to be Decided on Procedural Grounds

    Yesterday I went to the Supreme Court to watch the argument in Alvarez v. Smith, a case about civil forfeiture in which Cato filed an amicus brief

    Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various of legal and policy issues – from property rights to due process.  The question in Alvarez is the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge. 

    Illinois’ forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for “good cause.” The six plaintiffs in Alvarez — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney.

    Cato’s brief, joined by the Goldwater Institute and Reason Foundation, supports the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation’s leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State’s comparison of the time limits in CAFRA with those in its own law is misleading.

    Unfortunately, though some justices appeared at argument inclined to rule that at least some prompt process was due – many other states require that the police quickly come before a judge to make a showing equivalent to the one necessary to get a search warrant – several seemed to want to avoid the due process question for another day because Alvarez was procedurally flawed, so to speak.  That is, Justice Scalia pointed that none of the six plaintiffs have a live claim any more – three have had their cars returned, two defaulted on their claims, and the State reached agreement with one – so the case was “moot.”  And Justice Stevens noted that the appellate court left it to the trial court to determine the details of the hearing to which the plaintiffs were entitled.  (Of course, if the latter “problem” ends up being the key to the case, the Court will simply dismiss the appeal and let the Seventh Circuit’s ruling stand, which is good news – but only for people in Illinois, Indiana, and Wisconsin.)

    For more on the case, see George Mason law professor and Cato adjunct scholar Ilya Somin’s oped, and his related blog post at the Volokh Conspiracy.

    A New Court Term: Big Cases, Questions About the New Justice

    Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term.  The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.

    In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already.  Fortunately, unlike last year, we’ll see many blockbuster cases, including:

    • the application of the Second Amendment to state gun regulations;
    • First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
    • an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
    • federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
    • a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
    • judicial takings of beachfront property; and
    • notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.

    Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

    Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court.  While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity.  Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.

    Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right.  We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.

    In short, it’s the first day of school and I’m excited.