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.
EH says:
Ah, the age-old dilemma, to include oneself in a spammer’s link-farm or not.
December 8, 2009, 1:19 pmIlya Somin says:
I have deleted an obvious spam comment above. One of the very rare cases where I delete a comment.
December 8, 2009, 1:30 pmJosh Blackman says:
Ilya, thanks for the hat tip :). What do you make of Justice Stevens’s concurrence? Would dismissing the case as improvidently granted have been a better option? Or do you think the Court just disagree with the lower court, and did not want to decide it on the merits?
December 8, 2009, 1:49 pmDr. Patent says:
Does the vacating the 7th Circuit opinion affect the car owners’ ability to seek attorneys’ fees as a prevailing party?
December 8, 2009, 2:02 pmIlya Somin says:
Does the vacating the 7th Circuit opinion affect the car owners’ ability to seek attorneys’ fees as a prevailing party?
I would think so, but I am not expert in that area of law.
December 8, 2009, 2:05 pmOut of Iowa says:
This seems to me to fall under two exceptions to the mootness doctrine: 1) capable of repetition but avoiding review and 2) voluntary cessation. See Defunis. Also, it is my understanding that when mootness occurs due to settlement the usual practice is to not vacate the previous decisions of the lower courts. See US Bancorp Mortage Co. v. Bonner Mall. Which in this case would leave the circuit court’s ruling intact… and the only reason I know this is because I just got out of my Federal Jurisdiction final
December 8, 2009, 2:08 pmIlya Somin says:
What do you make of Justice Stevens’s concurrence? Would dismissing the case as improvidently granted have been a better option? Or do you think the Court just disagree with the lower court, and did not want to decide it on the merits?n
I think a DIG would have been a better option. Even better would have been to dismiss as moot without vacating the lower court opinion (since the case was not moot at the time the 7th Circuit issued its decision). It’s certainly possible that the Supreme court majority just disagreed with the lower court. But if they ultimately vacated the 7th Circuit decision for that reason, they should have waited for a non-moot case to express that view.
December 8, 2009, 2:09 pmShelbyC says:
This wouldn’t apply to mootness via settlement, would it?
December 8, 2009, 2:15 pmOut of Iowa says:
I suppose it would apply if the Plaintiffs could make a sufficient showing that an unlawful seizure could potentially happen to them again. This would probably run into standing problems i.e. the ability to show that the harm is imminent but I guess it is possible. Otherwise, I don’t think it would be much different than the situations that the exceptions were meant to guard against in the first place. For instance, the ability of corporations to “buy” favorable law by settling with potential plaintiffs after they get an adverse ruling but before final review. In this case, if the exception didn’t apply, Illinois could avoid any constitutional challenges to their program by returning any seized property whenever they lose at the circuit court level, thus avoiding Supreme Court review.
December 8, 2009, 2:27 pmJay says:
Out of Iowa–That assumes that every time they lost at the circuit, they could get the SC to repeatedly grant cert, hear argument, and then dismiss the cases as moot, which seems unlikely. If they failed to get cert granted, the precedential circuit opinion would stay on the books.
December 8, 2009, 2:34 pmOut of Iowa says:
True. But the real problem is the fact that they’ve managed to do it once is probably enough. They got an unfavorable ruling at the circuit level and were essentially able to get it wiped off the books. At the very least, the Supreme Court should not have vacated the lower ruling. I agree it seems unlikely for another case to go that far and be deemed moot again. However, it could be well into the future before another case gets back to the circuit court level and there is always the possibility that the plaintiffs could lose the next time around.
December 8, 2009, 2:39 pmSoronel Haetir says:
I thought the capable of repetition mootness exception required that the future action be between the same parties. That would seem like a hard case to make here.
December 8, 2009, 2:50 pmVadim says:
The “capable of repetition, yet evading review” exception is generally associated with abortions and elections. I’m not sure how else it’s been applied, but those are the clear examples of where it would be implemented.
As for the voluntary cessation argument: I would think that settlement resoundingly defeats that as well.
It must be incredibly frustrating to prevail in the 7th circuit and get within reach of SCOTUS just to have all your clients settle. But technically this is a moot claim. I just can’t understand the Court’s reasoning in overturning the lower court decision.
December 8, 2009, 3:03 pmOut of Iowa says:
Soronel Haetir- That’s the point I was attempting to make earlier:
December 8, 2009, 3:04 pmVadim says:
Under current precedent, these claims would simply be too speculative to satisfy the injury-in-fact requirement. See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983). There’s no way this claim isn’t moot after the plaintiffs settled.
December 8, 2009, 3:18 pmOut of Iowa says:
Vadim-
You’re probably right. I was only tossing out additional arguments that they could have been made. My main point was that I still have no idea why they decided to vacate the lower ruling. See US Bancorp Mortgage Co. v. Bonner Mall, 513 US 18 (1994) (Scalia, J.) (holding mootness by reason of settlement does not justify vacatur of judgment under review) available at http://supreme.justia.com/us/513/18/
December 8, 2009, 3:28 pmSuperSkeptic says:
Must have been a damn good settlement, as one might just have the righteous indignation after such offenses to continue the suit in order to set the po-po straight…
As for mootness and it’s exceptions, it’s hard to analyze them legally precisely because when they are used, they are clearly used quite often by the Court as manipulative tools – despite being “jurisdictional” and all that good technical Art. III “case or controversy” business…
December 8, 2009, 3:36 pmJay says:
Out of Iowa–Well, the opinion does address the US Bancorp issue; it’s the topic of Stevens’s dissent, which is rebutted towards the end of the Court’s opinion. Slip Op. at 6-9. Not saying whether it’s right or not, but they did think about it.
December 8, 2009, 3:53 pmOut of Iowa says:
Thanks. I haven’t read that far yet.
December 8, 2009, 4:03 pmShelbyC says:
But if you settle, you’re not evading review, correct? The parties have agreed on a disposition of the case, presumably enforcable by the court, and if the problem happens again, the parties can go back to court and appeal as far as they like. The instance of “capable of repition but evading review” that I’m familliar with (Roe) involved a situation where the case would always be moot after 9 months, so the plaintif would never get to appeal her denial of relief.
December 8, 2009, 4:31 pmFelix Culpa says:
Probably, but the settlement would surely address this if it were at all important to the plaintiffs and/or their attorneys. Otherwise, there would be little or no incentive to settle.
December 8, 2009, 5:02 pmKharn says:
I bet Chicago decided to settle to evade review and declaration of their money maker as unconstitutional.
December 8, 2009, 6:27 pmreadery says:
Professor Volokh argued below that government subsidies don’t violate the Free Exercise Clause. Perhaps so, but beside the point. Government subsidies of religious groups (as distinct from prohibitions on religious practice like the one in Smith) generally implicate the Establishment Clause rather than the Free Exercise Clause. I would recommend Professor Volokh address and focus on the Establishment Clause issue.
December 8, 2009, 9:04 pmThe Watcher says:
The Watcher is looking forward to the Detroit case. As she recalls, the Morality Police Task Force (the Watcher wishes she was joking here) was out busting johns and hookers with cars again, to seize the cars.
American Red Cross worker, in uniform, dropped her co-worker off at the bank and was waiting for her friend to emerge.
Her looks at the bank door, which was on the curb/sidewalk area, met the checklist for hooker activity so her car was seized.
Thus far the local judges have let the case go forward, based mostly on ‘You have got to be kidding me’ –and only the Detroit prosecutor is defending the actions and she is widely seen as a racist dimwit.
However, the Watcher expects the IACP will enter the scene soon and get this thing kicked.
December 8, 2009, 9:24 pmWednesday Round-up | SCOTUSblog says:
[...] had already resolved underlying disputes concerning ownership; also reporting on Alvarez, the Volokh Conspiracy observes that in its ruling, the Court avoided the “potentially important” constitutional [...]
December 9, 2009, 9:54 amtedmajor.net · Police and Thieves says:
[...] once again, DAFPA is valid law, and Chicago police can steal people’s cars with impunity. As The Volokh Conspiracy points out, the Court’s decision shows a disregard for Constitutional property rights and is almost [...]
December 9, 2009, 3:56 pmTweets that mention The Volokh Conspiracy » Blog Archive » Supreme Court Dismisses Potentially Important Property Rights Case as Moot -- Topsy.com says:
[...] This post was mentioned on Twitter by and Eugene Volokh, Eugene Volokh. Eugene Volokh said: Supreme Court Dismisses Potentially Important Property Rights Case as Moot: The Supreme Court has dismissed as .. http://bit.ly/7Evs1y [...]
December 9, 2009, 9:10 pmRich says:
Mooting the case while preserving the decision below (the first suggestion by Stevens and the one Ilya endorses) would have been bad precedent. The forfeiture proceedings may or may not have been settled in light of the federal litigation, but if Stevens’s argument prevailed, it would have made for some pretty bad incentives. In the future, the government would probably stay all proceedings while the case is litigated in order to avoid mootness and maintain its appeal. If this were the case, none of the property owners would get their cars back until the supreme court ruled on the merits! The better result would have been to simply dig it (Stevens’s second suggestion) and let the record develop in the district court. Then the government would be free to appeal (and hopefully lose), and we wouldn’t have to start from scratch. Anyway, I hope DAFPA goes down. That is a really bad law.
January 8, 2010, 4:29 amRich says:
One other thing: the way you make sure to avoid mootness is by filing a class action and making sure to appeal any denial of the class certification. Then the plaintiffs are free to “sub in” class members with standing if the named plaintiffs get their property back.
January 8, 2010, 4:39 amThe Volokh Conspiracy » Blog Archive » Asset Forfeiture: “A License to Steal” says:
[...] which bars state seizures of “property” without “due process of law.” The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out [...]
February 1, 2010, 2:46 amThe Volokh Conspiracy » Blog Archive » Asset Forfeiture: “A License to Steal” says:
[...] which bars state seizures of “property” without “due process of law.” The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out [...]
February 1, 2010, 2:46 amThe Volokh Conspiracy » Blog Archive » Asset Forfeiture: “A License to Steal” says:
[...] which bars state seizures of “property” without “due process of law.” The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out [...]
February 1, 2010, 2:46 amThe Volokh Conspiracy » Blog Archive » Institute for Justice Report on Asset Forfeiture says:
[...] I have previously criticized the asset forfeiture system here, here, and here, pointing out how it violates constitutional property rights. The Supreme Court had an opportunity to curb some of the more extreme violations of constitutional rights created by asset forfeiture laws in Alvarez v. Smith, a case it ended up dismissing on procedural grounds. [...]
April 6, 2010, 11:11 pm