Alvarez v. Smith

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Argued October 14, 2009. Decided December 8, 2009.

Authorship: Alexis Grant of the University of Michigan (with Akin Gump's Josh Friedman writing on the opinion)

Docket: 08-351

Issue: Whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property.

Contents

[edit] Briefs and Documents

[edit] Decision

VACATED AND REMANDED in an opinion by Justice Breyer. (December 8, 2009)

[edit] Oral Argument

Transcript (October 14, 2009)

[edit] Merits Briefs

[edit] Amicus Briefs

[edit] Certiorari-Stage Documents

[edit] Opinion Recap

On December 8, the Court held that the question presented by Alvarez v. Smith is now moot. As a result, it remains uncertain how long local law enforcement may hold seized property without providing administrative review.

In an opinion penned by Justice Breyer and joined by all eight Justices, the Court explained that the case no longer presented an Article III “case or controversy” because each of the underlying property disputes had been resolved, through either the return of the property or the forfeiture of claims for recovery. Though the parties continue to dispute their legal claims, the Court concluded that it would be inappropriate to resolve the dispute because it “is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.”

It is with perhaps a touch of irony then that the question of what to do with the opinion below was shrouded in (slight) controversy. The Court acknowledged that under its 1994 decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, a losing party forfeits its claim to the equitable remedy of vacatur when the case becomes moot by settlement. The Court distinguished Bancorp, however, on the ground that the question presented in that case was argued at every stage of the appeal and, ultimately, was itself resolved in the settlement agreement. The settlement here, by contrast, did not resolve the due process questions before the Court. Instead, that question was rendered moot by “the vagaries of circumstance”—here unrelated state court proceedings that addressed only the status of the property itself. The Court concluded that such unrelated and uncoordinated dispositions do not constitute the sort of “voluntary forfeit[ure]” that “tilted against vacatur.” It thus vacated the judgment of the Seventh Circuit and remanded the case with instructions to dismiss.

Justice Stevens, though agreeing that the case was moot, dissented from the Court’s decision to vacate the judgment below. He observed that Bancorp also instructs that vacutur should be informed by the “public interest,” which “is generally better served by leaving appellate judgments intact.” He reasoned that although the settlements in this case are different from those in Bancorp, they nonetheless represented “purposive and voluntary action that caused the mootness” of the type that would normally counsel against vacatur. Rather than vacate, Justice Stevens would have dismissed the writ of certiorari as improvidently granted and thus preserve the decision below.

[edit] Oral Argument Recap

During oral argument, the justices asked Paul Castiglione, arguing on behalf of petitioner Anita Alvarez, to address whether the conclusion of the forfeiture proceedings for each named plaintiff-respondent renders their claims moot. Castiglione argued that their case is not moot for two reasons. First, he posited that two of the six individual claims for injunctive relief (brought by individuals whose cash claims had defaulted) have not yet expired. As long as the State retains their property, the nature of their claims has not changed because they continue to seek the return of their property through injunctive relief. Second, plaintiffs filed an amended motion for class certification asking for damages and restitution, separate from the injunctive relief sought in the original complaint. The justices attacked the second line of reasoning, emphasizing that because the class had not yet been certified, the only claim before the Court is one for injunctive relief. During rebuttal, Castiglione argued in the alternative that if the Court were to find the case moot, petitioners would be entitled to a Munsingwear order vacating the decisions below. Challenging this position, Justice Scalia asserted that Munsingwear would not apply because the mootness would have resulted from voluntary settlement. In response, Castiglione characterized the plaintiffs’ settlement instead as the resolution of the underlying forfeiture case, rather than a response to federal litigation.

In addition to the mootness question, the justices focused on whether Illinois law provided owners whose personal property has been seized with an opportunity, prior to the forfeiture hearing on the merits, for a neutral official to determine whether there was probable cause to believe that the property was involved in illegal activity. Castiglione confirmed that State law provided no such procedure, nor did it provide a remission-type proceeding to balance the State’s need to hold the property and the individual’s need for it. According to Assistant to the Solicitor General William M. Jay, arguing on behalf of the United States as an amicus in support of petitioner Alvarez, the absence of these procedures is constitutionally justified by the several procedural steps under State law which ensure that owners receive due process.

On behalf of the respondents, Thomas Peters also argued that the case is not moot. Relying on the Court’s decision in United States Parole Commission v. Geraghty, he explained that the plaintiffs’ standing relates back to the time they initially filed their complaint. The justices countered, however, that this case is distinguishable from Geraghty because plaintiffs did not appeal the district court’s denial of their class certification. Next, the justices sought clarification with regard to the substance of the pre-forfeiture hearing respondents were requesting. In particular, they stressed the impracticality of requiring the State either to disprove the innocent owner defense or to provide a “remission-like proceeding” to mitigate damage during forfeiture. Although Peters assured them that the Seventh Circuit left open the question of what the hearing would require, Justice Ginsburg found this troubling as well: in her view, the Seventh Circuit decision would “cover[] the waterfront,” extending to cash and property.

[edit] Pre-Argument Articles

[edit] Argument Preview

On October 14, in No. 08-351, Alvarez v. Smith, the Court will consider whether the Due Process Clause provides individuals whose personal property was seized by government authorities pursuant to a state criminal forfeiture statute with the right to an interim probable-cause hearing before the actual forfeiture hearing.

Background

The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) permits the warrantless seizure of personal property involved in certain drug crimes as long as there is probable cause to believe it was involved in a drug crime and, therefore, subject to forfeiture. Although forfeiture proceedings are required under DAFPA, as many as 187 days can elapse between the seizure and the filing of judicial forfeiture proceedings.

The respondents in this case are six owners of personal property seized by Chicago Police pursuant to DAFPA. They filed a class action against the Cook County State’s Attorney, the City of Chicago, and its police superintendent under 42 U.S.C. § 1983, alleging that the defendants (petitioners here) had violated the Due Process Clause by holding their property “for more than 10 days without a probable cause to detain hearing.” The City and its officials filed a motion to dismiss, which the district court granted. They argued (and the claimants agreed) that the district court was bound by the Seventh Circuit’s decision in Jones v. Takaki, which held that a claimant is merely entitled to a timely forfeiture proceeding. In Jones, the Seventh Circuit – following the Supreme Court’s decision in United States v. $8,850 – applied the speedy trial test from Barker v. Wingo (1972) to determine whether the delay in the initiation of a forfeiture proceeding violated due process.

On appeal, the Seventh Circuit reversed, overruling Jones. The court declined to follow $8,850, which it regarded as addressing “the speed with which the civil forfeiture proceeding itself is begun” rather than “whether there should be some mechanism to promptly test the validity of the seizure.” To address the latter question, the Seventh Circuit applied the three-part test from Mathews v. Eldridge (1976). Relying in part on the hardship that could result from the seizure of an automobile, the Seventh Circuit held that DAFPA facially violated the Due Process Clause “given the length of time which can result between the seizure of property and the opportunity for an owner to contest the seizure under the DAFPA.” It remanded the case, directing the court below to provide “some sort of mechanism to test the validity of the retention of the property is required.”

The State’s Attorney filed a petition for certiorari, which was granted on February 23, 2009.

Petition for certiorari

In his petition, the State’s Attorney emphasizes that the Court should grant certiorari to resolve which test lower courts should apply to determine whether application of a forfeiture statute to a particular defendant violates the Due Process Clause.

The State’s Attorney argues that the Barker test as applied in $8,850 provides the proper analytical framework for assessing whether a civil forfeiture statute satisfies due process. Here, however, the Seventh Circuit erroneously employed the Mathews analysis and focused on whether due process requires an interim measure “to promptly test the validity of the seizure” prior to the actual forfeiture proceeding. The Seventh Circuit’s decision thus creates a split in the circuits (the majority of which apply the Barker/$8,850 test). Moreover, this question already was addressed in United States v. Von Neumann (1986), which flatly rejected the argument that that due process requires anything more than the forfeiture determination itself. Thus, the State’s Attorney concludes, “the existence or non-existence of this alternative mechanism is simply irrelevant”; the only question is whether the delay in initiating the forfeiture proceeding violates due process.

Opposing certiorari, the claimants first contend that the decision below did not create a circuit split because three Second Circuit decisions had already established that a prompt, postseizure hearing is required, and other circuits had similarly held that owners of a government-seized vehicle are entitled to a hearing shortly after seizure. Second, the decision below is consistent with established Supreme Court precedent not only in deciding that due process requires a pre-forfeiture hearing soon after personal property is seized, but also in relying on the Mathews criteria in order “to determine when the hearing must be held and to define the nature and scope of the hearing.” Third, the Supreme Court’s decision in United States v. James Daniel Good Realty (1993) demonstrates that the Mathews analysis “unquestionably” applies to forfeiture proceedings.

Although the Court in Good applied Mathews to the seizure of real property, once personal property is seized, the concerns distinguishing it from real property vanish and “the due process analysis is the same [for personal property] as it is for real property.” In both cases, the claimants assert, “a post seizure hearing is both feasible and necessary.” Fourth, this case is distinguishable from Von Neumann and $8,850 because the claimants here were seeking their due process right to interim relief, whereas the property owners in the latter cases already had access to post-seizure interim relief and were seeking outright dismissal of their forfeiture actions. According to Respondents, this distinction controls which due process analysis is applied. That is, property owners seeking interim hearings are subject to due process review under Mathews; and those seeking dismissal of their forfeiture actions should be analyzed under Barker. Fifth and finally, because DAFPA does not prohibit post-seizure hearings, the Due Process Clause entitles Plaintiffs to alternative, interim remedies that are in fact standard in Federal forfeiture laws.

Merits briefs

In the petitioner’s brief on the merits, Cook County State’s Attorney Anita Alvarez (the successor to Richard Devine, who filed the cert. petition) argues first that the decision below is not only inconsistent with common law origins of in rem forfeiture, but it also departs from the Court’s well-established precedent holding that a judicial forfeiture hearing alone is sufficient to ensure the reasonableness of the seizure.

According to Alvarez, nothing in the Constitution mandates a probable cause hearing prior to the actual forfeiture hearing. On the contrary, this additional procedural step would impose unnecessary costs on the State, as it would amount to no more “than a rushed version of the civil forfeiture hearing itself.” In concluding otherwise, the Seventh Circuit mistakenly equated personal property with personal liberty, which would require greater protection than what is provided currently under DAFPA. Moreover, the Seventh Circuit’s conclusion that the lack of a postseizure hearing qualified as a facial violation is inconsistent with the flexible, ad hoc approach as provided under the Barker framework.

Finally, Alvarez asserts that DAFPA’s constitutionality is further demonstrated by the fact that it was modeled after the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (CAFPA). DAFPA, for instance, provides a property owner the opportunity to seek the return of personal property at any time through judicial and statutory mechanisms that are comparable to the petition for remission procedure available under CAFPA. Moreover, CAFPA’s procedural timetable for forfeiture proceedings is potentially longer than that under DAFPA. In practical terms, Alvarez warns against mandating a prompt, post-seizure hearing, as it could impair the State’s ability both to pursue its investigation for the benefit of the in rem proceeding and to avoid “the release of potential evidence in a criminal action long before the criminal statute of limitations has run.”

[edit] Grant Write-up

The Fourteenth Amendment squarely prohibits the taking of property without “due process,” but defining the requirements of this nebulous concept has consistently plagued the courts. On February 23, the Court granted certiorari in Alvarez (Cook County State Attorney) v. Smith, No. 08-351, to determine what the government owes an owner whose property is seized, without a warrant, because police believe it was used in connection with a drug crime.

The State of Illinois, like most states and the federal government, authorizes police officers to seize vehicles and cash involved in certain drug crimes. Even if the owner of the vehicle did not participate in the crime, the Illinois Drug Asset Forfeiture Procedure Act allows the State to wait as many as 187 days before filing forfeiture proceedings, which test the legitimacy of the state’s seizure in court. This forfeiture proceeding may then be delayed indefinitely for “good cause,” or if there is a related proceeding in criminal court.

The six plaintiffs in Alvarez v. Smith – three of whom were never charged with a crime – allege that their cars or money were seized, without a warrant, for months or years without any judicial hearing related to the continued detention of their property. They brought a lawsuit contending that the Illinois statute is unconstitutional, and the Seventh Circuit agreed. It held that because there was considerable delay between the seizure and the forfeiture proceeding, the plaintiffs must be afforded an informal hearing in the interim to determine whether there is probable cause to detain the property.

Petitioner Anita Alvarez, the Cook County State Attorney, sought review of the Seventh Circuit’s decision, which in her view flouts Supreme Court precedent and creates a conflict among the circuits. Alvarez argued in the petition for certiorari that both Supreme Court precedent and authority from seven other circuits dictate that the courts ask only whether the delay before a forfeiture proceeding is unconstitutionally long and therefore requires dismissal of the proceeding. The brief in opposition submitted by the six plaintiffs counters that the Seventh and Second Circuits correctly add another inquiry: whether, even if dismissal of the forfeiture action is not required, the burden of the seizure is so onerous that a pre-forfeiture probable cause hearing must be held.

In resolving this case, the Court must decide which of its fractured lines of due process precedent to apply. It must determine whether or not to analogize this case to speedy-trial rights, and whether or not to distinguish the seizure of personal property, like automobiles, from the seizure of real property. The Court has the opportunity to clarify its due process precedent so that states can enact and follow seizure statutes with the confidence that they are constitutional.

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