Supplemental Brief — City of Kent, Washington, Petitioner v. Adrian Jacobo-Hernandez

No. 21-1491

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CITY OF KENT,

Petitioner,

v.

ADRIAN JACOBO-HERNANDEZ,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Court Of Appeals

Of The State Of Washington, Division I

---------------------------------♦--------------------------------SUPPLEMENTAL BRIEF FOR PETITIONER

---------------------------------♦--------------------------------BIJAN T. HUGHES

Counsel of Record

CITY OF KENT

OFFICE OF THE CITY ATTORNEY

220 Fourth Avenue South

Kent, WA 98032-5838

(253) 856-5770

BHughes@KentWA.gov

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

SUPPLEMENTAL BRIEF ...................................

1

1.

2.

3.

4.

The nature of the Court’s past errors in its

Excessive Fines forfeiture cases are foundational ......................................................

3

The reasoning of Austin relies on a false

equivalency ................................................

6

“Gross disproportionality” is not a workable standard ...............................................

9

The error has had dire effects on other

areas of law ................................................ 11

5. There are no concreate reliance interests ....

12

CONCLUSION..................................................... 12

ii

TABLE OF AUTHORITIES

Page

CASES

Austin v. United States, 509 U.S. 602, 113 S. Ct.

2801 (1993) ...................................................... passim

Bennis v. Michigan, 516 U.S. 442 (1996) .............. 11, 12

Dobbs v. Jackson Women’s Health Organization,

142 S. Ct. 2228 (2022) ..................................... passim

Glossip v. Gross, 576 U.S. 863 (2015) ...........................1

Planned Parenthood v. Casey, 505 U.S. 833

(1992) ................................................................... 1, 11

Roe v. Wade, 410 U.S. 113 (1973) .......................... 1, 4, 5

Solem v. Helm, 463 U.S. 277 (1983) ........................ 2, 10

The Palmyra, 25 U.S. (12 Wheat.) 1, 6 L.Ed. 531

(1827) .......................................................................11

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) .............. 2, 11

Timbs v. Indiana, 139 S. Ct. 682 (2019)............. 4, 6, 11

United States v. Bajakajian, 524 U.S. 321

(1998) ............................................................... passim

United States v. Mann, 26 F. Cas. 1153

(C.C.D.N.H. 1812) (No. 15,718) (Story, J.) ................8

CONSTITUTIONAL AUTHORITY

U.S. Const. amend. VIII ...................................... passim

U.S. Const. art. III, § 3 ..................................................7

iii

TABLE OF AUTHORITIES – Continued

Page

CODES, STATUTES AND RULES

Act of Apr. 30, 1790, ch. 9, § 24, 1 Stat. 117 .................5

Bill of Rights of 1689, 1 William & Mary Sess. 2,

c. 2 ............................................................................11

Wash. Rev. Code § 69.50.505 (2013) ......................... 3, 5

OTHER AUTHORITIES

Kevin Arlyck, The Founders’ Forfeiture, 119

COLUM. L. REV. 1449 (2019) ......................................5

1 William Blackstone, Commentaries on the

Laws of England (1765) ............................................1

3 E. COKE, THE INSTITUTES OF THE LAWS OF ENGLAND (London 1644)...................................................1

3 William Blackstone, Commentaries on the

Laws of England (1768) ............................................7

4 William Blackstone, Commentaries on the

Laws of England (1769) ........................................ 3, 7

Craig S. Lerner, Does the Magna Carta Embody

a Proportionality Principle? 25 GEO. MASON U.

CIV. RTS. L.J. 271 (2015) .........................................10

Anthony F. Granucci, ‘Nor Cruel and Unusual

Punishments Inflicted:’ The Original Meaning,

4 CAL. L. REV. 839 (1969) ..........................................9

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SUPPLEMENTAL BRIEF

On June 24, 2022, this Court issued its decision in

Dobbs v. Jackson Women’s Health Organization, 142

S. Ct. 2228 (2022). That case presented a question of

whether stare decisis should be maintained when predicate authority was inconsistent with the history of the

common law. Using a five-part test, the Court found

that the step of review created by the Court in Roe v.

Wade, 410 U.S. 113 (1973), and maintained in Planned

Parenthood v. Casey, 505 U.S. 833 (1992), was infirm

because such review was unfaithful to the legislature’s

historically unfettered punitive power.

Indeed, in the history of our common law: the most

serious class of crime could be anything; 3 E. COKE,

THE INSTITUTES OF THE LAWS OF ENGLAND 104 (London

1644) (describing felonious crime of “conveying a living

sheep from the Realm”); and the punishment could be

everything. 1 William Blackstone, Commentaries on

the Laws of England 289 (1765) (describing social contract theory of forfeiture of estate). See also Glossip v.

Gross, 576 U.S. 863, 895 (2015) (describing argument

that the Eighth Amendment prohibited the death penalty of a convicted defendant as “gobbledy-gook”)

(Scalia, J., concurring).

This case cleanly presents a vehicle to address

whether the Court’s historically questionable creation

of a step of judicial review for the forfeiture of a felon’s

chattel under the Excessive Fines Clause should also

be discarded. See United States v. Bajakajian, 524 U.S.

2

321, 340 (1998); Austin v. United States, 509 U.S. 602,

622 (1993).

In light of the Court’s decision in Dobbs, the already-strong case for certiorari here to address the circuit splits created by Austin and Bajakajian, Pet.8-14,

is now all the more compelling as these splits flow from

decisions which are “remarkably loose in [their] treatment of the constitutional text.” Dobbs, 142 S. Ct. at

2245. “The Court must not fall prey to such an unprincipled approach.” Id. at 2248. Here, “it is therefore important to set the record straight.” Id. at 2249.

Respondent admitted to hiding 8 pounds of methamphetamine in his car and transporting that car

across state lines, with the intention to distribute the

drugs in Petitioner’s community. Pet.App.14-15, 37.

The lower court has held that the U.S. Constitution requires the man be returned his car, so that he may be

better equipped to resume his life after incarceration

and deportation. Pet.App.22. In doing so, the lower

court engaged in an “unrestrained imposition of its

own extraconstitutional value preferences.” See Dobbs,

142 S. Ct. at 2271, citing Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747,

794 (1986) (White, J., dissenting).

In our system, there is a separation of powers. The

legislature is vested with responsibility to make decisions of preemptive authorization – to set penalties for

hypothetical conduct. Solem v. Helm, 463 U.S. 277, 290

n.16 (1983); Bajakajian, 524 U.S. at 336 (“judgments

about the appropriate punishment for an offense

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belong in the first instance to the legislature”). The executive is vested with responsibility to take action – to

effectuate the law through investigation, enforcement,

incarceration, and re-entrance. Cf. R.C.W. 69.50.505.

The judiciary is vested with responsibility to evaluate

whether those actions and authorizations align. Dobbs,

142 S. Ct. at 2278 (“Our sole authority is to exercise

‘judgment’ – which is to say, the authority to judge

what the law means and how it should apply to the

case at hand.”). The judiciary intrudes on the legislature when it limits its power, at a step in the process

that it was not asked to intervene in.

Under the five-part analysis used in Dobbs, both

Austin and Bajakajian should be overruled.

1. The nature of the Court’s past errors in its

Excessive Fines forfeiture cases are foundational.

Since before written law, in our legal tradition the

total alienation of a felon from their property has been

definitional. 4 Blackstone, Commentaries 95, 97. Felony and forfeiture are “synonymous.” Id. Yet here, the

lower court has found that the history of the common

law compels the conclusion that an instrumentality of

a felony must be returned to the convicted felon, because it is his last possession. Pet.App.22.

This anomalous outcome is the result of the judiciary having created a step of review in a punitive process, which it did not historically possess. “But we

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cannot exceed the scope of our authority under the

Constitution. . . .” Dobbs, 142 S. Ct. at 2278.

Austin, Bajakajian, and Timbs, feature lengthy citations to relevant history of limitations on pecuniary

penalties, but much of their discussion is irrelevant,

and the Court made no effort to explain how limits on

pecuniary penalties connected to chattel forfeit as a

consequence of a crime. See also Dobbs, 142 S. Ct. at

2267 (“Roe featured a lengthy survey of history, but

much of its discussion was irrelevant, and the Court

made no effort to explain why it was included.”). Indeed historically, the total alienation of a felon’s chattel

property is a consequence within the legislature’s punitive power. Pet.24-26.

The fact that the state and federal governments in

the 18th through early 20th century did not fully utilize the punitive forfeiture power does not mean that

anyone thought the legislatures lacked the authority

to do so. See also Dobbs, 142 S. Ct. at 2255 (“the fact

that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does

not mean that anyone thought the States lacked the

authority to do so”).

Forfeiture is nothing new. Cf. Magna Carta Chapter 32. It has been addressed by the common law for

centuries, and the fundamental moral questions that

it poses is ageless. See also Dobbs, 142 S. Ct. at 2258

(“Abortion is nothing new. It has been addressed by

lawmakers for centuries, and the fundamental moral

question that it poses is ageless.”). The limited use of

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this authority by the federal government was a mutable policy decision of the First Congress. See Act of Apr.

30, 1790, ch. 9, § 24, 1 Stat. 117. See generally, Kevin

Arlyck, The Founders’ Forfeiture, 119 COLUM. L. REV.

1449, 1505 (2019) (discussing use of discretion of early

federal government in revenue forfeiture cases). In

passing the Comprehensive Drug Abuse Prevention

and Control Act of 1970, the U.S. legislature decided to

tap this font of power for drug crimes. Bajakajian, 524

U.S. at 332 n.7 (noting legislative intent to revive common law power). The Washington legislature followed

in suit. R.C.W. 69.50 (“Uniform Controlled Substances

Act”).

Respondent and the lower court make important

policy arguments, but support of continued use of Austin and Bajakajian requires a showing that this Court

has the authority to weigh those arguments and decide

how the legislature may exercise its punitive power.

See also Dobbs, 142 S. Ct. at 2259 (“Both sides make

important policy arguments, but supporters of Roe and

Casey must show that this Court has the authority to

weigh those arguments and decide how abortion may

be regulated in the States.”).

The nature of the error is a violation of the separation of powers. History does not support a judicial

review of excess for the forfeiture of a felon’s chattel.

Pet.24-26. Fabricated within living memory, the Bajakajian test is sold as an ancient relic. See Dobbs, 142

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S. Ct. at 2246-47.1 This case is a good vehicle to revisit

the reasoning of this test and “set the record straight.”

Id. at 2249.

2. The reasoning of Austin relies on a false

equivalency.

The quality of the reasoning in Austin does not

support its continued use – the thin reed on which the

decision rests is a false equivocation that “Fines” implicitly includes all forms of forfeiture. 509 U.S. at 614

n.7; see also id. at 334 (“the forfeiture of respondent’s

currency constitutes punishment and is thus a ‘fine’ ”).

The over inclusiveness of this interpretation is easily

spotted upon review of the entirety of the Magna Carta

and the English Bill of Rights of 1689. Pet.21-24.

In Dobbs the Court advised that:

Constitutional analysis must begin with ‘the

language of the instrument,’ Gibbons v. Ogden, 9 Wheat. 1, 186-89 (1824), which offers a

‘fixed standard’ for ascertaining what our

founding document means, 1 J. Story, Commentaries on the Constitution of the United

In dicta in Dobbs this Court stated that “Timbs . . . concerned the question whether the Fourteenth Amendment protects

rights that are expressly set out in the Bill of Rights.” 142 S. Ct.

at 2246-47. This case presents an opportunity to correct this

statement by noting that a right to judicial review of forfeit chattel is, in fact, not expressly set out in the Bill of Rights. Such a

right has been implicitly read into the document by the Court –

notwithstanding nearly 700 years of Anglo-American common

law tradition allowing for the total alienation of property from a

convicted felon.

1

7

States §399, p.383 (1833). The Constitution

makes no express reference to a right to obtain an abortion, and therefore those who

claim that it protects such a right must show

that the right is somehow implicit in the constitutional text.

142 S. Ct. at 2245.

So too here, the text of the Constitution only presents a single explicit protection from forfeiture of a

felon’s property – in the case of treason, where the defendant has already died. U.S. Const. art. III, § 3. Anyone who would claim that the Constitution provides

additional protections to the chattel of felons, “must

show that the right is somehow implicit in the constitutional text.” Dobbs, 142 S. Ct. at 2245.

The Court in Austin used weak reasoning to find

this implicit right – it read “Fines” to implicitly include

“forfeiture,” on the basis that sometimes the word “forfeiture” was used in the context of pecuniary penalties.

509 U.S. at 614 n.7.2 This ignored that the English Bill

In addition to this false equivocation, the Court in Austin

did not meaningfully distinguish between penal forfeitures related to non-criminal revenue laws, and criminal forfeitures made

pursuant to the longstanding legal tradition of forfeiture as a consequence of felony. 509 U.S. at 615-18 (discussing forfeiture cases

based on penal statute violations, in deciding the justiciability of

forfeiture based on criminal conduct). Compare 4 Blackstone,

Commentaries 379 (“I here omit the particular forfeitures created

by the statutes . . . because I look upon them rather as a part of

the judgment and penalty, inflicted by the respective statutes,

then as consequences of such judgment; as in treason and felony

they are.”); with 3 Blackstone, Commentaries 262 (describing forfeitures under “a penal statute.” Noting “forfeitures of the goods

2

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of Rights of 1689, which the founders copied in creating

the Excessive Fines Clause, refers to “forfeitures” and

“fines” as distinct concepts, in different sections of the

document. Pet.22.

The Court in Austin found an implicit protection

by equivocating terms which had distinct and separate

meanings within the primary historical document being reviewed by the Court.

The text of the instrument does not support a right

to judicial review of forfeitures of chattel for excess,

where a felon has been convicted and the legislature

has provided authority.

With “Fines” serving as a too wide of an umbrella,

the Court in Bajakajian then “adopt[ed] the standard

of gross disproportionality articulated in our Cruel and

Unusual Punishments Clause precedents.” 524 U.S. at

336.

Despite very different historical pedigrees, the Excessive Fines Clause shares a test with the Cruel and

Unusual Punishment Clause, but “the basis for this

test [is] obscure.” See Dobbs at 2271. “Excessive Fines”

is a term originating from the English Bill of Rights of

1689, which was transposed into colonial documents,

themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of

the customs and excise”). See also e.g., United States v. Mann, 26

F. Cas. 1153, 1154 (C.C.D.N.H. 1812) (No. 15,718) (Story, J.) (distinguishing between “pecuniary forfeitures” and “seizures,” as

well as “penal statutes from criminal statutes,” and noting as true

that “the court of exchequer ha[d] no criminal jurisdiction”).

9

and was considered “constitutional boilerplate.” E.g.,

Granucci, Anthony F., ‘Nor Cruel and Unusual Punishments Inflicted:’ The Original Meaning, 4 CAL. L. REV.

839 (1969).

A clause with roots in the Magna Carta and the

English Bill of Rights of 1689 shares a 20th century

created test for a clause which derived from the

founders’ misreading of a 18th century legal encyclopedia. E.g., Granucci, supra at 840. The equivocating

between an arbitrary term and a term of art has broadened the latter’s meaning. The Excessive Fines Clause

protects from the perils of abuse possible when pecuniary penalties have no upper limit – but by sharing a

standard with the more open-ended protection of the

“cruel and unusual punishment” the Court has expanded the clause beyond its text or historical roots.

3. “Gross disproportionality” is not a workable

standard.

From 1993 onward, courts for the first time in the

history of the common law were asked to determine

whether seizure of the chattel of felons was “excessive.”

But this is a determination for the legislature, which

preemptively authorizes the executive to take action

in response to conduct, and which is capable of identifying questions and opportunities for the judiciary to

consider. Bajakajian acknowledges this, yet nonetheless created an ambiguous standard to limit that

legislative power based on the general principle of proportionality. 524 U.S. at 336 (“judgments about the

10

appropriate punishment for an offense belong in the

first instance to the legislature”).

By opening the door to review of felony chattel forfeiture in Austin and Bajakajian, the Court has invited

a decision like the lower court’s which relies on nonspecific historical citations, without firm examples of

application.

The lower court’s decision relies on Bajakajian’s

progeny, and in turn offers no guidance or specificity.

Pet.App.20-22. The lower court had no test with limiting principles or meaningful parameters to apply, despite the authority its relying on being supposedly of

ancient vintage, because there is no historic test to apply to a felon’s seized chattel.

The guarantee of the Magna Carta relied on by the

lower court and the sources which it cites to relates to

“amercements,” which were utilized by the state to

correct minor social transgressions and not felonies.

Craig S. Lerner, Does the Magna Carta Embody a Proportionality Principle? 25 GEO. MASON U. CIV. RTS. L.J.

271, 283-91 (2015) (distinguishing amercements from

serious penalties); but see Solem, 463 U.S. at 284, (citing to Magna Carta 20, to support review of criminal

sentence).

The “gross disproportionality” standard is inherently imprecise and seems only to serve as a potential

judicial veto of punishment which offends a reviewing

court’s sensibilities, notwithstanding the judgment of

the legislature. It is not carefully crafted to produce

consistent results. The Court’s limitation of state

11

legislative power through an ambiguous “undue burden” standard in Casey, is not functionally different

than the Court’s limitation of the state’s legislative

power through an ambiguous “gross disproportionality”

standard in Bajakajian. They were both an “exercise of

raw judicial power,” which curtailed powers historically held be the legislature. See also Thornburgh, 476

U.S. at 794 (White, J., dissenting).

4. The error has had dire effects on other areas

of law.

The error made in Austin has been used to justify

the degradation of historic rights. The English Bill of

Rights is not only a set of enumerated rights but is a

recitation of unwritten rights that had existed long before its creation. Timbs v. Indiana, 139 S. Ct. 682, 695,

(Gorsuch, J., concurring) (2019). The English Bill of

Rights of 1689 § 12 guarantees no forfeiture prior to

conviction – a clear due process right. Pet.24-26. See

also The Palmyra, 25 U.S. (12 Wheat.) 1, 15 (1827) (limiting holding that conviction was not necessary for

forfeitures in “cases of this nature,” i.e., matters historically heard in Exchequer for non-criminal, penal

violations of revenue laws).

Nonetheless, citing to Austin the Court in Bennis

found that a forfeiture made against a non-convicted,

innocent owner, did not violate the Due Process Clause.

Bennis v. Michigan, 516 U.S. 442, 451-53 (1996) (“cases

authorizing actions of the kind at issue are ‘too firmly

fixed in the punitive and remedial jurisprudence of the

12

country to be now displaced.’ ”); id. at 454 (Thomas, J.,

concurring) (“This case is ultimately a reminder that

the Federal Constitution does not prohibit everything

that is intensely undesirable.”).

However, “[w]hen vindicating a doctrinal innovation requires courts to engineer exceptions to longstanding background rules, the doctrine has failed to

deliver the principled and intelligible development of

the law that stare decisis purports to secure.” Dobbs,

142 S. Ct. at 2276 (quotations and citations omitted).

5. There are no concreate reliance interests.

There are no concrete reliance interests here. The

forfeiture of property is generally “unplanned activity,”

which is reactive to the commission of a crime. Id. at

2276. Such that future proceedings “could take virtually immediate account of any sudden restoration of

state authority” to alienate felons from their property

to the degree the people see fit. Id.

---------------------------------♦---------------------------------

CONCLUSION

This case is an ideal vehicle to squarely flesh out

under which circumstances the Court is able to create

limitations on the state legislature’s exercise of its historic punitive powers. The total alienation of an individual of their chattel property is more engrained in

the historical record as a legislative power than the

ability to regulate gestation, such that stare decisis

13

need not be observed in a similar situation where the

judiciary has unilaterally altered long standing rules

as to the executive’s use of a legislatively authorized

power.

“There are occasions when past decisions should

be overruled . . . this is one of them.” Id. at 2261. “When

one of our constitutional decisions goes astray, the

country is usually stuck with the bad decision unless

we correct our own mistake.” Id. at 2262. Only this

Court can correct its errors; it should grant certiorari

here and do so.

Respectfully submitted,

BIJAN T. HUGHES

Counsel of Record

CITY OF KENT

OFFICE OF THE CITY ATTORNEY

220 Fourth Avenue South

Kent, WA 98032-5838

(253) 856-5770

BHughes@KentWA.gov