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Judges Bush and Thapar on Due Process and Forfeiture
Michael Ramsey

In the recent decision Ingram v. Wayne County, a panel of the Sixth Circuit (per Judge Bush) held that Wayne County's policy of denying hearings while deciding whether to initiate forfeiture proceedings violates due process, with originalist analysis.  From the opinion:

Unlike plaintiffs here, property owners in the early American Republic had two avenues of recourse against the government. First, they could obtain a judicial order compelling the government to bring the forfeiture suit if it wished to retain the property. As Chief Justice Marshall stated in Slocum v. Mayberry, 15 U.S. 1 (1817), “If the seizing officer should refuse to institute proceedings to ascertain the forfeiture, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the seizure.” Id. at 10.

Second, under the Remission Act of 1790, the property owner could petition the Secretary of the Treasury to have the forfeiture remitted in whole or in part, “upon such terms or conditions as he may deem reasonable and just,” provided that the forfeiture did not result from “wilful [sic] negligence or any intention of fraud.” See Act of May 26, 1790, ch. 12, § 1, 1 Stat. 122, 122–23 (repealed 1797); Calero-Toledo, 416 U.S. at 689 n.27. Congress enacted the Remission Act after lobbying from Alexander Hamilton, the first Secretary of the Treasury, who reported to the House of Representatives “instances which have come under his notice, in which considerable forfeitures have been incurred, manifestly through inadvertence and want of information.” ...  

The early federal remission process essentially provided “an alternative mechanism for contesting government seizures,” and “in most cases a claimant filed a petition immediately after the government filed suit.” Arlyck, supra, at 1485. The court proceedings were “stayed pending Treasury’s disposition of the petition (though generally without entry of a formal stay).” Id. Through the administrative proceeding, property owners could obtain earlier relief than what might be available through the courts. See id. (“[N]othing in the [Remission Act] required a claimant to wait until judgment in court against them to file a petition.”). And the remission process had teeth: the Treasury Secretary’s remission power served essentially “as a constitutional safety valve,” given the “very high rate of success for remission petitions.” Id. at 1514.

These protections of property owners’ rights in federal forfeiture proceedings were in place by the time the Fifth Amendment was ratified in 1791. The procedural framework for early forfeiture actions, therefore, provides evidence of the process that the ratification generation understood to apply to forfeiture of property under the Fifth Amendment’s Due Process Clause: “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law,” U.S. Const. amend. V. See generally New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022) (noting that a “focus on history . . . comports with how we assess many . . . constitutional claims”). Likewise, history and tradition are relevant for our interpretation of the Fourteenth Amendment’s Due Process Clause, which applies to the States and uses language that is parallel to the Fifth Amendment’s due process guarantee: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV.

This history and tradition suggest that the constitutional adopters and ratifiers understood due process to encompass the principle that property owners have recourse when the government drags its heels in a forfeiture action. ...

The panel applied the balancing test from Mathews v. Eldridge to rule for the claimants.  Judge Thapar concurred, arguing:

Squishy standards like Mathews don’t provide sufficient guidance for anyone. Not for government officials. Not for lower courts. And, most importantly, not for the people whose rights the Constitution protects.


Fortunately, we aren’t stuck with Mathews. Time and again, the Supreme Court has disregarded balancing tests when history and tradition supply a more rights-protective framework. It’s done so for the Second Amendment. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2127–30 (2022). And the Fourth Amendment. See, e.g., United States v. Jones, 565 U.S. 400, 406–07 (2012). And, most significantly for our purposes, the Due Process Clause of the Fourteenth Amendment. Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2039–40 (2023) (plurality op.); Burnham v. Superior Ct. of Cal., 495 U.S. 604, 619 (1990) (plurality op.). So to determine the meaning of the Due Process Clause, we should look beyond Mathews to our nation’s history and tradition.

A survey of that history reveals two key insights. First, property and liberty have always been intertwined. Second, speedy process was an important protection for both rights. The Supreme Court has translated these deeply rooted values into a bright-line rule to protect liberty: the government must hold a preliminary hearing within 48 hours of arresting someone. I would apply the same rule to Wayne County’s seizure of the plaintiffs’ property.

Judge Thapar similarly relied on early history:

Early in our nation’s history, the remedy for illegal government seizures was a replevin action—a lawsuit for the return of unlawfully obtained property. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 43–44 (2018). According to Blackstone, this action was “a tedious method of proceeding.” 3 William Blackstone, supra, at *147. “[G]oods were long detained from the owner, to his great loss and damage.” Id. To avoid such delays, Parliament passed statutes that provided for the immediate return of property after someone filed a writ of replevin (although the petitioner also had to guarantee that he would pay to return the property if he lost). John W. Patton, The New Replevin in Pennsylvania, 54 Am. L. Register 123, 124 (1906).

Not to be outdone by English Parliament, in 1790, Congress passed a landmark statute to protect property: the Remission Act. The Act responded to Alexander Hamilton’s fear of “heavy and ruinous forfeitures.” Kevin Arlyck, The Founders’ Forfeiture, 119 Colum. L. Rev. 1449, 1482–85 (2019); see Alexander Hamilton, Report on the Petition of Christopher Saddler (Jan. 19, 1790), in 6 The Papers of Alexander Hamilton 191, 191–92 (Harold C. Syrett & Jacob E. Cooke eds., 1962). It promised speedy process in property-forfeiture cases. Act of May 26, 1790, ch. 12, § 1, 1 Stat. 122, 122 (requiring that when a person challenges a fine or forfeiture, a judge “shall inquire in a summary manner” into the case). And most claimants capitalized on that process, filing their petitions as soon as they could. Arlyck, supra, at 1485. In sum, English and early American history reveal how our law protected property in large part through speedy process.

Speedy process was just as important a protection for liberty as it was for property. For more than 800 years, the greatest protection for liberty, the writ of habeas corpus, has allowed prisoners being held without process to challenge their detention. Clark D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev. 1079, 1089 (1995). And,  unsurprisingly, timely action on the writ was always critical. Two seventeenth-century English statutes required either the government or the courts to act within a few days. Habeas Corpus Act, 16 Car. 1, c. 10 (1641); Habeas Corpus Act, 31 Cha. 2, c. 1 (1679). Many early state constitutions and laws included the same or similar requirements. By the mid-nineteenth century, speedy process was the national standard in habeas proceedings. See Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385, 386. See also Act of Mar. 3, 1791, ch. 15, § 43, 1 Stat. 199, 209 (“That it shall be lawful for the judge of the district within which such penalty or forfeiture shall have been incurred . . . to inquire in a summary way into the circumstances of the case.”).

Why such a rush? Because we shouldn’t allow an innocent man to be wrongfully imprisoned. 4 Blackstone, supra, at *352 (“[I]t is better that ten guilty persons escape, than that one innocent suffer.”). And one of the best ways to avoid that is speedy process. Similarly, one of the best ways to ensure that someone isn’t wrongfully deprived of property is speedy process.

(Thanks to Alan Beck for the pointer.)