Legal Commentary

Supreme Court Dismisses Potentially Important Property Rights Case as Moot

By Ilya Somin

The Supreme Court has dismissed as moot, Alvarez v. Smith, a potentially important property rights case [HT: Josh Blackman]. As I explained in this Findlaw column, Alvarez involved an important issue in constitutional property law. The plaintiffs were property owners whose cars or other possessions had been seized by Chicago police and held for many months or years at a time, without the owners having any opportunity to challenging the seizure in any kind of judicial hearing, and in some cases without any criminal charges being filed against the owners by the government. The car owners argued that these seizures were a violation of the Fourteenth Amendment?s guarantee that states cannot seize private property without ?due process of law.?

The Court decided that the case was moot because the state had settled the case and returned all three cars to their owners prior to oral argument, and also reached settlement agreements addressing the other seized property. This is an understandable ruling. Far less defensible is the Court?s decision to vacate the Seventh Circuit Court of Appeals opinion that ruled in favor of the property owners. After all, the case clearly was not moot at the time the Seventh Circuit issued its decision in 2008. As Justice Breyer?s opinion for the Court points out, the Supremes don?t normally vacate a lower court opinion when a case is dismissed as moot because it has been settled. In this case, however, the Court relied on the rule that lower court opinions usually are vacated if the settlement occurred as a result of ?happenstance? for reasons unrelated to the existence of a federal case. This rule strikes me as a dubious rationale for vacating opinions that were issued before any settlement occurred. Whatever the parties? motives for settling later, the Seventh Circuit clearly had jurisdiction over the case at the time it was decided, and therefore its opinion should stand. Moreover, it is difficult to believe that the parties completely ignored the existence of a federal case in reaching their settlement agreements, since those settlements occurred after the Seventh Circuit had ruled in favor of the property owners.

Be that as it may, the Supreme Court?s decision not only avoids resolving the underlying constitutional issue, it also allows Illinois? egregious Drug Asset Forfeiture Procedure Act (DAFPA) to stand, since the Court vacated the lower court decision striking it down. As I explained here, DAFPA allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without allowing the owners to file for hearing challenging the seizure. Even after they are allowed to file, more months may pass before a hearing is actually held (over a year?s delay in all for some of the Alvarez plaintiffs). This is true even if the owners in question are never charged with any crime (as the three car owners involved in Alvarez were not), and even if the police don?t provide any proof that valuable evidence would be lost if the property is returned to the owners.

Of course, things could have been worse. When the Court initially agreed to hear this case, I thought it possible that it had decided to do so in order to reverse the Seventh Circuit on the merits. The fact that there was a serious likelihood that the Court might uphold this fairly blatant violation of Due Process Clause property rights is yet another indication of the second class status of constitutional property rights in the Court?s decision-making.

I suspect that this issue will eventually come before the Court again. As a result of the War on Drugs, these kinds of property seizures are common in many parts of the country. In some jurisdictions, police departments have incentives to seize property first and ask questions later, because they get to auction off property taken in drug investigations that lead to convictions, and keep the profits. Often, they can do this even if the property in question belonged to an owner who wasn?t convicted of anything himself.

Full post as published by The Volokh Conspiracy on December 08, 2009 (boomark / email).