# Amicus Curiae Brief — Ethicon, Inc. v. Eisenmenger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0621%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 919

## Text

Supreme “ourt, US |
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——— i

In The

Supreme Court of the United States
October Term 1995
.

TINA B. BENNIS,

Petitioner,

STATE OF MICHIGAN ex rel. WAYNE
COUNTY PROSECUTOR,

Respondent.

— ¢

On Writ Ot Certiorari To The
Michigan Supreme Court

+

BRIEF OF THE INSTITUTE FOR JUSTICE
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

+

INSTITUTE FOR JUSTICE

*WituaM H. Me tor III

Cunt Bouck

Scott G. BuLLock

1001 Pennsylvania Avenue, NW
Suite 200 South

Washington, DC 20004

(202) 457-4240

Attorneys for Amicus Curiae

*Counsel of Record

COCKLS LAay SEP PeRTIp SS OD, Gee ibenes
OR CALL COLLECT (402) 342-283

TABLE OF CONTENTS

Page
INTEREST OF AMICUS CURIAE .................. 1
SE GO MI eh Se Piws ccc cceccdscccccstes 1
SUMMARY OF ARGUMENT....................... 3
PEGE WS wha Peete Feb ct Peis nccvidoeees 4

5.

Il.

THE GOVERNMENT’S ZEALOUS USE OF
CIVIL FORFEITURE LAWS, AND THEIR
APPLICATION TO INNOCENT PROPERTY
OWNERS, SERIOUSLY UNDERMINES PRI-
VATE PROPERTY RIGHTS. ...................

ALTHOUGH CIVIL FORFEITURE IS A CENTU-
RIES-OLD DOCTRINE, IT HAS BEEN
RELEASED FROM ITS HISTORICAL MOOR-
INGS AND IS NOW USED IN A VARIETY OF
INAPPROPRIATE CONTEXTS. ................

THE APPLICATION OF CIVIL FORFEITURE TO
INNOCENT PROPERTY OWNERS VIOLATES
THE DUE PROCESS CLAUSE OF THE FOUR-
TEENTH AMENDMENT AND THE TAKINGS

A. Unless An Owner Negligently Entrusts His
Property To Another, The Forfeiture of An
Innocent Owner’s Property Is Unduly
ye Ain: And Violates The Due Process
Clause Of The Fourteenth Amendment. ...

B. Forcing Ms. Bennis To Bear The Costs of
Addressing Urban Problems When She Is
Entirely Innocent Of Wrongdoing Violates
The Takings Clause Of The Fifth Amend-

14

15

ii
TABLE OF AUTHORITIES
Page
Cases
Armstrong v. United States, 364 U.S. 40 (1960)..... 20, 21
Austin v. United States, 113 S. Ct. 2801 (1993)..3, 14, 20
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

663 (19FO)... oo ccscccccccccccscansaveueueneneee passim
Dolan v. City of Tigard, 114 S. Ct. 2309 (1994)......... 6
Eide v. Sarasota, 908 F.2d 716 (11th Cir. 1990)........ 15

In re Metmor Financial, 819 F.2d 446 (4th Cir. 1987) .... 22

Lucas v. South Carolina Coastal Council, 112 S. Ct.
2886 (1992)... cccccccccccscavdeuacnseneenenn nae 24

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980).......... 13
Miller v. United States, 78 U.S. (11 Wall.) 268 (1871) .... 10

Monroe Savings Bank v. Castalano, 733 F. Supp. 595
(W.D.N.Y. 1990) ..ccccccccctosctessie neuen . 22

Moore v. City of East Cleveland, 431 U.S. 494 (1977) 15

National Board of Y.M.C.A. v. United States, 395 US

85 (1969) 21
Nollan v. California Coastal Commission, 483 US

R25 (1 9R7) 21
Norris v. Doniphan, 61 Ky. (4 Met.) 385 (1863)
People ex rel. Arcara 0 Clowd Books, Inc. 480 2d

NE
1oRo (NY 1085 rev 2d om otmer grounds “seus

*)

iii

TABLE OF AUTHORITIES - Continued

Page
Sinaloa Lake Owners Association v. City of Simi Val-
ms a 882 F.2d 1398 (9th Cir. 1989), ae denied sub
nom. Doody v. Sinaloa Lake Owners Association,

110 S. Ct. EE EE ee 15
Sinclair v. Croom, 8 S.E.2d 834 (N.C. 1940)........... 19
State ex rel. Carrol v. Gatter, 260 P.2d 360 (Wash.

EE SS EE EEET OTT ETETTTT TATE TT 23
State ex rel. W Cty. Prosecutor v. Bennis, 447

td eeeadcinad de deneccncsescccece 2, 23
The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) ............ 8
Tumey v. Ohio, 273 U.S. 510 (1927) ...............5.. 13
United States v. Brig Malek Adhel, 43 U.S. (2 How.)

ae wn nn ccncecccccese: 9, 10
United States v. One 1936 Model Ford V-8 Deluxe

eG ES 11
U.S. v. One 1957 Rockwell Aero Commander, 671 F.2d

Ee ek eee ees ocncecee cece: 16
U.S. » $6,700, 615 F.2d 1 (ist Cir. 1980) 16
LULS. & james Daniel Good Real Property, 114 S. Ct

492 (1993) 5. 6, 11, 13
US. & Ome Mercedes Benz 380 SEL. 604 F Supp

1M7 SDNY 1984) 16
Ward o Village of Monroeville, 9 US 5S’ (1972) 13

StaruTss
Act of August 4. 1790. | Seat 145 8

Act of August 6 1861. 12 Stat 319

iv

TABLE OF AUTHORITIES ~- Continued

Page
Act of July 17, 1862, 12 Stat. 589...........6-eeeeees 10
Act of July 31, 1789, 1 Stat. 29.......... cece eee eeeees 8
Civil Asset Forfeiture Reform Act of 1995, H.R.

1916, 104th Cong., Ist Sess... ... 6.6.66 e cece eeeeeee 6
Michigan Comp. Laws § 600.3801 ...........-+++0055 1
MISCELLANEOUS

Boudreaux & Pritchard, Civil Forfeiture and the War
on Drugs: Lessons from Economics & History
(forthcoming). ......cccccccccccccccecccecceseccees 12
Brazil & Berry, Tainted Cash or Easy Money?,
Orlando Sentinel Trib., June 14-15, 1992.......... 5, 6
Buchanan, Constitutional Economics (1991)............ 12
Bullock, Filling the Coffers with Civil Forfeitures,
Legal Times, Nov. 1, 1993 ..........--ceeeeeeeeeees 5
Epstein, Takings: Private Property and the Law of
Banieged Daememsite CGE: . .
‘ é hecause that property was

through no fault of the

Ren nis aims that the forfeiture of
rormomie she co-owned with her
vw Process Clause of the Four-

the Takings Clause of the Fifth
‘as recogruzed that property

: ‘ose ‘ Ms Benmis. should not be
fa poor relahon im comparison

nal rughts. See Dolan ov City of Tigerd
794) The Michigan Supreme Court
mandate in an anc undermined

Il. ALTHOUGH CIVIL FORFEITURE IS A CENTU-
RIES-OLD DOCTRINE, IT HAS BEEN RELEASED
FROM ITS HISTORICAL MOORINGS AND IS
NOW USED IN A VARIETY OF INAPPROPRIATE
CONTEXTS.

The forfeiture power has roots in common law and
even predates the founding of this country. Early forfei-
tures, however, were of limited use and application.
Property owners in the twentieth century have witnessed
the virtually unbounded expansion of civil forfe**ture
laws far beyond their common law origins. Therefore, it
is important to explore the history of civil forfeiture in
order to distinguish between constitutional applications
of a long-established, limited governmental power and
unwarranted and unconstitutional applications of its
vastly expanded incarnation.

In his seminal work, The Common Law, Oliver Wen-
dell Holmes traced the origin of American civil forfeiture
law to the ancient law of deodands.' For several decades,
Holmes’ historical view of civil forfeiture prevailed.?
However, recent scholarship disputes Holmes’ perspec-
tive. Schecter, Fear and Loathing and the Forfeiture Laws, 75
Corn. L. Rev. 1151, 1154 (1990) (hereinafter “Schecter”);
Maxeiner, Bane of American Forfeiture Law — Banished at

! Deodand, derived from the Latin “deo dandum,” means
“to be given to God.” Pearson, 416 U.S. at 681. It represents the
oldest form of civil forfeiture and embodied the notion that the
“thing” was guilty of illegal activity.

2 This Court in Pearson relied in part on Holmes’ history of
the rise of American forfeiture law. Id. at 681.

Last?, 62 Corn. L. Rev. 768, 772 (1977) (hereinafter “Max-
einer”). According to this scholarship, American forfei-
ture law arose not from ancient deodand law, but from
English admiralty procedures. Piety, Scorched Earth: How
the Expansion of Civil Forfeiture Doctrine Has Laid Waste to
Due Process, 45 U. Miami L.Rev. 911, 935-42 (1991).

Early American forfeiture statutes trace their origins
to the British Navigation Acts of the mid-1600s. The Acts
were passed during England’s vast expansion as a mar-
itime power. The Acts required imports and exports from
England to be carried on British ships. If the Acts were
violated, the ships or the cargo on board could be seized
and forfeited to the crown regardless of the guilt or

innocence of the owner.®

Using the British statutes as a model, the first United
States Congress passed forfeiture statutes to aid in the
collection of customs duties, which provided 80-90% of
the finances for the federal government during that time.
Act of August 4, 1790, 1 Stat. 145; Act of July 31, 1789, 1
Stat. 29; Maxeiner, 62 Corn. L. Rev. at 782 n.86. Civil or
“in rem” forfeitures were introduced in American law
through these early customs statutes. The forfeiture
power was challenged and upheld in The Palmyra, 25 U.S.
(12 Wheat.) 1 (1827). The owner of a shipping vessel
asserted that an in rem forfeiture could not occur unless

> Although the Acts were worded in absolute terms, juries
nevertheless acquitted shipowners if it could be shown that they
had taken all reasonable steps to ensure that the ship not be
used for illegal purposes. Maxeiner, 62 Corn. L. Rev. at 774.

he was convicted of criminal wrongdoing. However, Jus-
tice Story held that the “proceeding in rem stands inde-
pendent of, and wholly unaffected by any criminal
proceeding in personam.” Id. at 15. Consequently, “[t]he
thing is here primarily considered as the offender, or
rather the offence is primarily attached to the thing... . ”
Id. at 14. Despite the sweep of the Palmyra language, it is
clear from a careful reading of the case that the holding
was plainly limited to in rem forfeitures under the admi-
ralty jurisdiction.

This Court clarified the government's forfeiture
power in the landmark case, United States v. Brig Malek
Adhel, 43 U.S. (2 How.) 210 (1844). The case presented the
question of whether an innocent owner of a ship could
have his property forfeited due to the illegal and
unauthorized acts of the master. Justice Story, once again
writing for the majority, upheld the forfeiture under the
same rationale developed in The Palmyra.

The most important aspect of these early forfeiture
cases is the justification provided for the expansion of
civil forfeiture to innocent property owners. This Court
held that the forfeitures were closely tied to the func-
tional necessities of enforcing admiralty, piracy, and cus-
toms laws. In rem forfeiture permitted courts to obtain
jurisdiction over property when it was virtually impossi-
ble to obtain in personam jurisdiction over the property
owners. Therefore, the government could ensure that cus-
toms laws were enforced even if the owner of the ship or
the cargo was outside the court's jurisdiction. Justice
Story wrote that the “vessel which commits the aggres-
sion is treated as the offender, as the guilty instrument or

0

‘Tung amech the *orterture attaches etthowt amy reter-
ence whetsoever to the Character of conduct of the
~wner” Sng Malet Adhel 43 US at 133 Howewer, Story
usnhhed Set 9? lp 1888 the Sepeeee Cour
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at Madison described as such as petitioner in the instant case.

14

Ill. THE APPLICATION OF CIVIL FORFEITURE TO
INNOCENT PROPERTY OWNERS VIOLATES
THE DUE PROCESS CLAUSE OF THE FOUR-
TEENTH AMENDMENT AND THE TAKINGS
CLAUSE OF THE FIFTH AMENDMENT.

This Court in Pearson recognized, albeit in dicta, two
instances where the application of civil forfeiture to inno-
cent owners may raise serious constitutional concerns:
forfeitures where the wrongdoer obtained the property
without the consent of the owner and those situations
where an innocent owner demonstrated not only that he
was unaware of the property’s illegal use, but that he had
done all that could reasonably be expected to prevent its
illegal use. Id at 689. In those situations, it would be
difficult to conclude that the forfeiture was not “unduly
oppressive.”” Id. at 690. The instant case squarely pre-
sents one of the situations alluded to in Pearson — the case
of the entirely innocent owner. This Court should adopt
as law, with the modifications outlined below, the Pearson
dicta. As the following sections set forth, the nuisance
abatement statute’s lack of any “innocent owner” excep-
tion to forfeiture violates both the Due Process Clause of
the Fourteenth Amendment and the Takings Clause of the
Fifth Amendment to the United States Constitution.

7 Likewise, this Court in Austin, 113 S.Ct. at 2809, reiterated
the Pearson dicta by declaring that forfeitures have never been
applied “when the owner had done all that reasonably could be
expected to prevent the unlawful use of his property.”

15

A. Unless An Owner Negligently Entrusts His
Property To Another, The Forfeiture of An
Innocent Owner’s Property Is Unduly Oppres-
sive And Violates The Due Process Clause Of
The Fourteenth Amendment.

The Due Process Clause protects individuals from
malicious, arbitrary, and irrational deprivations of prop-
erty. Moore v. City of East Cleveland, 431 U.S. 494 (1977);
Eide v. Sarasota, 908 F.2d 716 (11th Cir. 1990); Sinaloa Lake
Owners Ass‘n v. City of Simi Valley, 882 F.2d 1398 (9th Cir.
1989), cert. denied sub nom. Doody v. Sinaloa Lake Owners
Ass'n, 110 S.Ct. 1317 (1990). Not providing innocent
owners any relief whatsoever from the application of civil
forfeiture laws results in arbitrary and “unduly oppres-
sive” forfeitures in violation of due process guarantees.
See Pearson, 416 U.S. at 689. If there were ever an example .
of an “unduly oppressive” forfeiture, it is the forfeiture of
Ms. Bennis’ interest in the automobile of which her hus-
band was a co-owner. Ms. Bennis is, unquestionably, an
innocent owner; she had absolutely no knowledge of, nor
did she consent to, her husband’s illegal use of their
property. Current Michigan law, however, provides no
recourse for innocent owners such as Ms. Bennis.

Because the Pearson language setting forth what
would constitute an “unduly oppressive” forfeiture was
dicta, several courts, including the Michigan Supreme
Court, have refused to provide any relief to innocent
owners. At a minimum, this Court should adopt as law
the Pearson dicta in order to prevent “unduly” oppressive
forfeitures such as the forfeiture of Ms. Bennis’ auto-
mobile.

16

Even when courts have applied the Pearson dicta,
however, the lack of clarity concerning what constitutes
reasonable steps a property owner must take to prevent
the illegal use of his property has led to particularly
harsh applications of the forfeiture power. See, e.g., U.S. v.
One 1957 Rockwell Aero Commander, 671 F.2d 414 (10th Cir.
1982) (upholding forfeiture of an aircraft for non-compli-
ance with Customs Service regulations even though air-
craft was stolen and owner was unaware of its activities);
U.S. v. $6,700, 615 F.2d 1 (1st Cir. 1980) (affirming forfei-
ture of cash brought into United States illegally even
though the cash was embezzled from the owner’s estate);
U.S. v. One Mercedes Benz 380 SEL, 604 F. Supp. 1307
(S.D.N.Y. 1984) (upholding forfeiture of an automobile
used in drug transaction even though car had been
loaned to third person in whose care owner had left the
car and owner had no knowledge of drug activity). As
these cases and many others demonstrate, a strict inter-
pretation of the Pearson suggestion that a private party
must take “all” reasonable precautions against illegal use
places both onerous and vague duties on private parties
to pro-actively police the actions of others.

Such a burden is especially troubling in the context of
family relationships, where the government has tradi-
tionally not intervened to impose obligations on family
members to probe into the activities of one another.
indeed, it would be difficult to imagine any steps Ms.
Bennis could have reasonably taken to prevent the illegal
use of her property when she had no previous knowledge
© reason to believe that her property was going to be
sed illicitly What precautions should a woman take
before letting her heretofore law-abiding husband use the

17

family car? Even outside the special context of a mar-
riage, if a property owner has no knowledge or reason to
believe that someone will engage in illegal activity with
particular property, then why would one take steps to
prevent its illegal use?

Other innocent owners, such as mortgagees, pur-
chasers, lessors, and landlords also have to walk a very
fine line. They subject themselves, on the one hand, to
possible physical harm or legal action (by prying too
closely into the affairs of others) or, on the other hand,
the possible forfeiture of valuable property (by not pry-
ing closely enough). Moreover, the imposition of affirma-
tive law enforcement obligations on private parties runs
counter to traditional Anglo-American criminal law doc-
trine that has refused to place such duties on individuals.
Hart, Variety of Responsibility, 83 Law Q. Rev. 346, 354-55
(1967). Innocent property owners “should not forfeit their
property for failing to act as a private police force which
searches every person who borrows, leases, or is invited
into a vehicle.” Schecter, 75 Corn. L. Rev. at 1180.

In order to prevent the application of civil forfeiture
to unquestionably innocent owners, this Court should
adopt the Pearson dicta as a constitutional rule. However,
the Pearson rule should be clarified and strengthened by
adopting a rule of negligent entrustment when forfeiture
is used against innocent owners.* Drawn from traditional

* Indeed, this Court already has suggested such a rule
Sumilar to the negligent entrustment rule for civil forfeiture
suggested in the instant case, the Austin decision stated tha
holding the owner “accountable for the wrongs of others to
whom he entrusts his property” rests “on the notion that the

-

18

common law tort principles, the negligent entrustment
doctrine holds:

It is negligence to permit a third party to use a
thing .. . which is under the control of the actor,
if the actor knows or should know that such
person intends or is likely to use the thing . . . in
such a manner as to create an unreasonable risk
of harm to others.

Restatement of Torts (2d) § 308 (1965). As petitioner’s brief
more substantially sets forth, the substitution of the
words “in such a manner as to create an unreasonable
risk of harm to others” with the words “in a manner
proscribed by law” establishes a reasonable rule of care
when property owners allow their property to be used by
others.

The negligent entrustment doctrine would provide
clear guidance to lower courts where, as in the instant
case, forfeiture statutes provide no relief for innocent
owners. Under this doctrine, Ms. Bennis clearly did not
negligently entrust her property to her husband. There is
no evidence that Ms. Bennis “should have known” that
her car would be used by her husband for illegal pur-
poses. She never knew her husband to engage in such
conduct in the past nor did she have any reason to
suspect he was going to engage in such conduct that
night. Furthermore, since Mr. Bennis had equal access
and “control” over the vehicle and did not have to seek

owner has been negligent in allowing his property to be mis-
used and that he is properly punished for the negligence.” 113
S.Ct. at 2809.

19

his wife’s consent to use the car, Ms. Bennis could not
have taken reasonable steps to prevent its misuse.
Accordingly, the state has not met its burden of justifying
the forfeiture of Ms. Bennis’ property either under the
Pearson dicta language or the negligent entrustment doc-
trine.?

Without an innocent owner exception, the Michigan
nuisance abatement statute deprives individuals of prop-
erty without due process of law in violation of the Four-
teenth Amendment. Recognizing the inherent unfairness
of a rule which deprived individuals of property without
regard to wrongdoing or negligence, the Supreme Court
of North Carolina de-rlared that

a law which requires such a person at all times
to know what is being done with his property, in
other words, by the act of sale or lease to make a
public guaranty that it shall at all times be used
for a legitimate purpose, is opposed to common
experience and the necessity of commercial and
social intercourse, and is so obviously unjust as
to be arbitrary.

Sinclair v. Croom, 8 S.E.2d 834, 836 (N.C. 1940). Further-
more, the Pearson suggestion that an owner must take
“all” reasonable precautions imposes a far too onerous

% The Pearson dicta implies that property owners have the
burden of proving that they took all reasonable steps to prevent
the illegal use of their property. As petitioner’s brief more sub-
stantially sets forth, the negligent entrustment rule would place
the burden on the government to demonstrate that an owner
negligently allowed another to use his property for illegal pur-

poses.

20

burden on property owners and provides extremely nar-
row relief. The negligent entrustment doctrine provides a
workable rule when innocent owners are swept up in
civil forfeiture proceedings.

B. Forcing Ms. Bennis To Bear The Costs of
Addressing Urban Problems When She Is
Entirely Innocent Of Wrongdoing Violates The
Takings Clause Of The Fifth Amendment.

In addition to violating due process guarantees, the
application of Michigan’s nuisance abatement statute to
innocent property owners such as Ms. Bennis constitutes
a taking of private property without just compensation in
violation of the Fifth and Fourteenth Amendments to the
United States Constitution. While this Court held that the
forfeiture in Pearson did not constitute a taking, it left
open the question, later reiterated in Austin, of whether
“forfeiture of a truly innocent owner’s property” would
comport with the Constitution. Austin, 113 S.Ct. at 2809.
In the instant case, it is undisputed that Ms. Bennis acted
neither criminally nor negligently with her property. In
other words, she is a “truly innocent owner[].” Id. How-
ever, the Michigan nuisance abatement statute offers no
relief or exception for innocent property owners.

The Fifth Amendment to the United States Constitu-
tion states that “private property shall not be taken for
public use without just compensation.” Central to the
requirements of the Takings Clause is this Court’s hold-
ing that private parties cannot be forced to bear costs that
should in fairness and justice be borne by the public.
Armstrong v. United States, 364 U.S. 40, 49 (1960); see also

21

Nollan v. California Coastal Commission, 483 U.S. 825, 837
(1987); Epstein, Takings: Private Property and the Law of
Eminent Domain 42-44, 182-94 (1985). Significantly, the
plaintiff in Armstrong, like Ms. Bennis, was an innocent
owner. Armstrong was a subcontractor who furnished
material to a shipbuilding company. He attached valid
liens to the products he provided. The shipbuilding com-
pany had a contract with the government. When the
company went bankrupt, the government demanded and
secured the ships under its contract. The government
prevented Armstrong, however, from foreclosing on his
valid liens.

This Court held in Armstrong that while the govern-
ment was certainly entitled to foreclose and destroy liens,
it had to compensate the lienholders. Similarly, if the
government chooses to forfeit the Bennis automobile to
further the public purpose of law enforcement and
“cleaning up” Detroit, then it must compensate innocent
parties, like Ms. Bennis, who hold an interest in the
property. As discussed in Part A of this section, the
forfeiture of Ms. Bennis’ interest serves no remedial or
punitive purpose to take it outside the protection of the
Fifth Amendment’s Takings Clause. Furthermore, Ms.
Bennis was not the “intended beneficiary” of the govern-
ment action in this case. See National Board of Y.M.C.A. v.
United States, 395 U.S. 85 (1969) (no taking if government
destroys property when it acts primarily in defense of
plaintiffs’ property rather than primarily for public
good). Rather, the forfeiture of Ms. Bennis’ property
rights is a taking of property for a public purpose without
the payment of just compensation. As an unquestionably
innocent third party, Ms. Bennis should not bear the

22

financial burden of law enforcement activities designed
to address urban problems.

The destruction of an innocent owner’s interest has
been considered a violation of the Takings Clause in other
contexts. For instance, in In re Metmor Financial, 819 F.2d
446, 450 (4th Cir. 1987), the United States Court of
Appeals for the Fourth Circuit held that the forfeiture of
property could not change the nature of an innocent
mortgagee’s rights. The court held that “if viewed from
the perspective of a Fifth Amendment taking, for which
[an innocent owner] is entitled to ‘just compensation’ -
typically defined as ‘fair market value of the property on
the date it is appropriated’ —- the government must pay
[the innocent owner] the fair market value of the mort-
gage. ...” Id. at 450; see also Shelden v. United States, 7
F.3d 1022 (Fed. Cir. 1993); Monroe Savings Bank v. Cas-
talano, 733 F. Supp. 595 (W.D.N.Y. 1990). The court further
held that “the government can succeed to no greater
interest in the property than that which belonged to the
wrongdoer whose actions have justified the seizure.” Id.
at 448-49. Likewise, the government in the instant case
should not be allowed to deprive innocent third parties,
such as Ms. Bennis, of any legitimate interests in the
property.

Nor can the government escape the requirements of
the Takings Clause merely by characterizing the forfei-
ture as an abatement of a nuisance. Only a single act of
prostitution occurred in the Bennis car. A majority of the
Michigan Supreme Court, however, ruled that the car was
transformed into a nuisance because it occurred in a
neighborhood allegedly known as an area frequented by
those soliciting prostitutes.

23

Chief Justice Cavanaugh’s dissent clearly demon-
strates how the majority twisted the traditional rights and
responsibilities of property owners in an effort to address
an urban problem. Bennis, 44 Mich. at 744-51. At common
law, property could, under specific and limited circum-
stances, be declared a nuisance. 58 Am.Jur.2d, Nuisances,
§ 77. However, nuisance has always involved “continuity
or recurrence” of an offending practice. People ex rel.
Arcara v. Cloud Books, Inc., 480 N.E.2d 1089, 1095 (N.Y.
1985), rev'd on other grounds, 478 U.S. 697 (1986) (nuisance
is “a consistent pattern of conduct sufficient to prove that
the premises are being employed for a proscribed use”).
Under the common law, a “place” becomes a nuisance
when it has “absorbed and taken the character of the acts
committed.” State ex rel. Carrol v. Gatter, 260 P.2d 360, 364
(Wash. 1953).

The Michigan Supreme Court deviated widely from
the common law definition of a nuisance when it
attempted to demonstrate the continuity of supposed nui-
sance-like acts in a particular neighborhood or “place”
where prostitution occurs. However, it was the auto-
mobile and not the neighborhood that was forfeited.
Under the Michigan Supreme Court’s logic, property
rights are determined by the area in which property
happens to be located. If a property owner is unfortunate
enough to have property located in an area where “lewd-
ness” occurs on a regular basis, then his rights are signifi-
cantly diminished under the Michigan court’s novel and
unprecedented approach to property rights. Indeed,
under this view of property rights, a respectable hotel
that happens to be located in a neighborhood that has
“declined” could be forfeited if a single act of prostitution

24

occurred in one of the rooms without the knowledge of
the owner. That same act of prostitution could occur in a
more upscale neighborhood, however, and the hotel (or
automobile) could not be forfeited under the Michigan
Supreme Court’s rule.

These common law understandings of nuisance ~ and
the Michigan Supreme Court’s departure from them ~ are
significant in light of this Court’s decision in Lucas v.
South Carolina Coastal Council, 112 S.Ct. 2886 (1992). Lucas
recognized that a taking cannot be excused merely by a
legislature or a court attaching the nuisance label to the
government action:

Any limitation [on property] so severe cannot be
newly legislated or decreed (without compensa-
tion), but must inhere in the title itself, in the
restrictions that background principles of the
State’s law of property and nuisance already
place upon... ownership. A law or decree with
such an effect must, in other words, do no more
than duplicate the result that could have been
achieved in the courts — by adjacent landowners
(or other uniquely affected persons) under the
State’s law of private nuisance, or by the State
under its complimentary power to abate nui-
sances that affect the public generally, or other-
wise.

Lucas, 112 S.Ct. at 2900.

Under Lucas, a nuisance must be justified on common
law doctrines and principles rather than self-serving leg-
islation or novel judicial determinations of what consti-
tutes a nuisance. Use of the nuisance abatement statute to
forfeit Ms. Bennis’ interest in the automobile would be
extremely difficult to justify under common law nuisance

25

principles. A private party could not successfully file a
nuisance action against the automobile based upon a
single act of prostitution (although a private party could
probably successfully file such an action against a house
of prostitution that was causing significant and long-
standing problems in the neighborhood and interfering
with the owner’s use of his property). Moreover, the
automobile does not rise to the level of a public nuisance
at common law, which was generally a criminal action to
abate property uses that were injurious to the public at
large. See Lee & Lindahl, Modern Tort Law § 35.02 (1990)

(“[A] public nuisance . . . is an invasion of a right com-
mon to members of the public generally. . . . It is an
offense against the state. . . . It is a crime.”).

The Michigan Supreme Court has undermined prop-
erty rights and traditional property law principles in its
attempt to address vexing urban problems. Such prob-
lems cannot be ameliorated, however, at the expense of
private property rights. Ms. Bennis had absolutely no
knowledge of, nor did she consent to, the illicit use of the
automobile she co-owned with her husband. She should
not be punished for the behavior of her husband and,
even more importantly, the behavior of other men in a
particular neighborhood. The cost of cleaning up Detroit
cannot be thrust upon an individual who merely wishes
to retain property she rightfully owns.

SJ

26

CONCLUSION

For all the foregoing reasons, amicus curiae Institute
for Justice respectfully requests that this honorable Court
reverse the opinion below.

*Counsel of Record
Date: August 4, 1995

Respectfully submitted,

INSTITUTE FOR JUSTICE

*WituaAM H. Me tor III

Cunt Bouck

Scott G. BuLLock

1001 Pennsylvania Avenue, NW
Suite 200 South

Washington, DC 20004

(202) 457-4240

Attorneys for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0621%3A10. Public record. Not legal advice.