Posted by Ilya Somin:
A Much Better Sotomayor Property Rights Opinion:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243370699
In my previous post, I criticized Judge Sotomayor's flawed ruling
property rights ruling in Didden v. Village of Port Chester. It is
only fair that I point out that, in 2002, she wrote a much better
opinion in another significant property rights case, [1]Krimstock v.
Kelly. In Krimstock, Sotomayor wrote an opinion invalidating New York
City's policy of seizing and holding vehicles owned by suspects
accused of DUI and other offenses, and then retaining them for years
at a time without allowing the defendants to challenge the seizures in
any kind of legal proceeding. The city had not yet initiated any civil
forfeiture proceedings against them. Sotomayor correctly ruled that
this policy violates the Due Process Clause of the Fourteenth
Amendment, which mandates that citizens cannot be deprived of property
without "due process of law." It may not be clear how much process is
"due" in any given case under the Amendment. But seizure of property
for up to several years at a time with no process at all is surely too
little.
The Krimstock case is similar to the recent 7th Circuit decision in
Alvarez v. Smith, which [2]I blogged about in February. Krimstock may
actually have been slightly less egregious because three the owners of
the vehicles in Alvarez had not even been charged with a crime, while
the seven plaintiffs in Krimstock had pleaded guilty to the charge of
driving while impaired (though forfeiture of property was not part of
the legally mandated sentence for this offense). It's hard to dispute
Sotomayor's conclusion that:
A car or truck is often central to a person's livelihood or daily
activities. An individual must be permitted to challenge the City's
continued possession of his or her vehicle during the pendency of
legal proceedings where such possession may ultimately prove
improper and where less drastic measures than deprivation pendente
lite are available and appropriate.
What does Krimstock say about Sotomayor's broader attitude towards
constitutional property rights? I tend to doubt that it tells us very
much. For reasons I elaborated more fully in [3]my post on Alvarez, I
think these cases are relatively easy. Surely holding onto valuable
property for years at a time with no legal process at all is not "due
process" under any defensible definition. However, the fact that the
Supreme Court granted cert in Alvarez and may end up reversing it
suggests that the state of protection for constitutional property
rights is so bad that we can't take anything for granted. Therefore,
Sotomayor does deserve some substantial credit for her opinion in this
case. I do not believe that it fully outweighs what she did in Didden,
however. In her time on the Second Circuit, Sotomayor ruled on two
important property rights issues where the case against the government
was overwhelmingly strong. A 50% batting average in such situations is
a lot better than 0%, but is still troubling.
References
1. http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=369
2. http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235552057
3. http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235552057
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