Last month, the SCOTUS ruled in Timbs v Indiana that a state's fine or forfeiture scheme may be excessive and thus unconstitutional under the 8th Amendment of the United States Constitution. This ruling means that persons convicted of crimes under state law, or found responsible under a municipal ordinance, can challenge the ultimate fine on the new-found constitutional grounds that the fine is excessive.

Tyson Timbs, an Indiana man, was convicted by his own plea of dealing in a controlled substance and conspiracy to commit theft. After he was arrested and charged, the police seized his Land Rover SUV for which he paid approximately $44,000. This forfeiture seemed unfair considering the express prohibition of excessive fines in the 8th Amendment.

Ill-Gotten Gains Can Be Forfeited

The uncontested facts in the case are that Timbs used proceeds he received from his father's life insurance policy to purchase the vehicle. One of the chief rationales underpinning state forfeiture laws is to punish felons for using ill-gotten gains to purchase assets that often assist them in their chosen criminal enterprise.

In this case, Timbs successfully challenged Indiana's forfeiture statute that allowed the state to attach his expensive Land Rover SUV. Timbs argued that the forfeiture was excessive relative to his drug conviction.

The state court agreed that taking the Land Rover was excessive considering that the maximum fine for heroin possession was less than 25% of the value of the vehicle. Of course, the State of Indiana appealed but the trial court was affirmed; the forfeiture was deemed excessive. At the Indiana Supreme Court, however, Timbs lost when the trial court and intermediate appellate court were reversed.

In granting certiorari, the SCOTUS examined whether the 8th Amendment's prohibition against "excessive fines". The 8th Amendment reads, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Application to States as well as the Federal Government

During oral argument in the case last November, Indiana's Solicitor General went toe-to-toe with Justices Gorsuch and Kavanaugh. Indiana argued that the 8th Amendment ban on "excessive fines" applied only to the federal government; not to the states. Gorsuch and Kavanaugh we not having it, asserting that in 2019, all of the rights contained in the Bill of Rights -the first 10 amendments to the Constitution- applied to states as well as to the federal government.

Indiana also asserted that a "forfeiture" was distinct from a fine or other sanction. The SCOTUS shot that argument down too, but on technical grounds. 

Justice Ruth Bader Ginsburg wrote the majority opinion, noting that the State of Indiana did not raise the forfeiture vs fine argument in its brief filed in the Indiana Supreme Court thus, it could not argue the point to the SCOTUS. We here at the Law Blogger are thinking that the proverbial heads rolled in Indianapolis over that non-preserved argument. The SCOTUS routinely avoids deciding weighty issues on technical grounds.

Whenever litigants pose weighty issues that can be decided narrowly, without a constitutional basis or rationale, the SCOTUS usually takes the bait and declines to make momentous constitutional decisions. 

Justice Ruth Bader Ginsburg's Opinion

This case was an example of this principle. In her opinion, Justice Ginsburg, having recovered from her lung operation, put together a veritable tour de force to frame the issue:

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” "[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. When James II was overthrown in the Glorious Revolution, the  attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. (“[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.”). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. [Citations omitted.]

Justice Ginsburg next examined several instances of state law schemes over the centuries and in more recent decades where fines seemed excessive, despite the 8th Amendment. She cited to the excessive post-Civil War fines in the South designed to subjugate newly freed slaves and maintain the racial hierarchy.

Citing the landmark case, Harmelin v Michigan, Justice Ginsburg continued:

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” [Citations also omitted.]

Her opinion next focused on the 14th Amendment's Due Process clause, which requires that the Bill of Rights, the first 10 amendments to the U.S. Constitution, apply to the states. She rejected Indiana's argument that the forfeiture law was civil in nature and, as such, was not a fundamental right.

The bottom line: Indiana's civil forfeiture laws are invalidated. This holding has implications for forfeitures here in Michigan. Justices Gorsuch and Thomas concurred in the result but wrote separately.

We Can Help

We here at the Law Blogger have had many cases where, as a part of a felony arrest, cash, a vehicle, or other asset -even a house- was forfeited under Michigan's forfeiture statute. The SCOTUS' Timbs decision will now throw some shade on the forfeiture process here in Michigan.

If you or a family member have experienced an excessive fine or a similar forfeiture like in the Timbs case, contact our law firm for a free consultation. We can assess your legal options.

Post #623
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With rumors flying about Justice Anthony Kennedy's imminent retirement, and with Justice Ruth Bader Ginsburg determined to hang-on through the Trump Administration, an interesting same-sex case involving a wedding cake has made its way to the SCOTUS.

The case, Masterpiece Cakeshop -v- Colorado Civil Rights Commission, pits gay rights against religious freedom. An otherwise amiable cake shop owner was sued under Colorado's public accommodation law when it refused to accommodate a same-sex couple's request for a gay-themed wedding cake. The shop owner's refusal was based on his sincerely held religious beliefs against gay marriage.

We've seen these cake cases percolating through the legal systems of various states for the past half decade. This one from Colorado was just recently granted certiorari by the SCOTUS after a lengthily delay.

Asserting his First Amendment right to freedom of religion, the shop owner and petitioner, who characterizes himself as a "cake artist", claims that the Colorado law is unconstitutional to the extent that it forces him to accommodate customers in the violation of his religious beliefs. The lower court decision of the Colorado Court of Appeals held that the baker illegally discriminated against a gay couple under the Colorado law.

SCOTUS denied a similar petition for cert three years ago and watchers of the High Court, seeing the extended delay in acting on the petition, anticipated another rejection from the SCOTUS. Surprisingly, the Court granted certiorari and the case will be argued this fall, with a decision on the merits expected next spring.

The case received the four votes required to grant certiorari. This fall, it will be interesting to see how the newly-configured Court will handle this civil rights dispute. Depending on the judicial fates of Justices Kennedy and Ginsburg, President Trump may have the opportunity to bolster the conservative wing of the High Court.

Meanwhile, these gay-themed cake cases are gaining traction within our culture. Currently, a play in Los Angeles, "The Cake", has adopted the theme of these cases: pitting a shop owner against gay customers who ask the owner to do something with which the owner disagrees on moral and religious grounds.

With all that we have swirling around Washington at the moment, some of our legal friends have already commented on this post that SCOTUS has way more on its plate than to decide this case. On the other hand, religious beliefs run deep and affect our souls.

So, we will do what we always do here at the Law Blogger: keep you posted...

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Post #598

At age 80, Justice Kennedy certainly would be well within his right to retire from the SCOTUS. Rumors flew again this week when Kennedy's annual law clerk reunion was advanced to early June, fueling speculation that he will not be on the bench for the October term.

For his part, Justice Kennedy is not saying anything about retirement, leaving it to speculation as to when, if ever, he may retire.

Justice Kennedy's retirement would provide President Trump another opportunity to bolster the conservative block on the court. And when Kennedy retires, could Justice Ruth Bader Ginsburg be far behind. President Trump could possibly fill three seats on the court in his first year in office.

While all this is going on, many court observers have noted Chief Justice John Roberts' slow and quieet slide to the center. A George Bush appointee, Justice Roberts has disappointed some conservatives by becoming the new "median vote"; a role long-held by Justice Kennedy.

If Trump appointees make-up a third of the High Court, many legal scholars expect a renewed legal battle over women's right to abortion. With 5 solid conservative justices on the High Court, the seminal case of Roe v Wade could be in jeopardy.

Stay tuned; we will continue to track the rumors and innuendo emanating from the SCOTUS this summer.

Post #589
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United States Supreme Court Justice Ruth Bader Ginsburg, sometimes known by her tag Notorious RBG, has been mixing it up of late, openly trashing Republican presidential nominee Donald Trump in a series of interviews. She asserts Trump is uniquely disqualified to be President and that the exercise of his powers of appointment under Article II of the U.S. Constitution would be catastrophic for the federal judiciary and the SCOTUS.

Now, full disclosure: if you were to stroll down the halls of our law firm, you'd bump into a few card-carrying Republicans, but you would not likely find a Trump supporter among them. Nevertheless, we here at the Law Blogger do find it disturbingly distasteful whenever a SCOTUS justice speaks their mind about a sitting President or, more generally, partisan politics.

There are good reasons for that. The federal judiciary is designed to remain independent of the other two branches of government. Recognizing that partisan politics are alive and well at the High Court and throughout the federal courts across the nation, legal professionals still count on the judges assigned to their cases to bring an unbiased and neutral mindset to the decisions they make based on the evidence presented in the cases.

When justices speak out publicly, it shatters this illusion. Who could forget election night 2000 when Justice Sandra Day O'Connor, the first woman appointed to the SCOTUS, infamously quipped that it was "terrible" that Al Gore was apparently heading for victory and then, months later, participated in one of the more historically partisan decisions ever to be issued by the High Court.

The code of judicial ethics only binds lower federal court judges; one tenet proscribes a federal judge from commenting on a presidential election. While this ethical code does not bind justices of the Supreme Court, there is nevertheless a powerful custom, usually observed by the justices, requiring them to maintain a safe distance from the partisan politics in which the other  two branches marinate.

Predictably, Trump immediately called upon RBG to resign following her public commentary on his candidacy. Democrats have been calling for the 83 year old justice to resign since 2010, long before President Obama became a lame duck, now powerless to appoint a successor to the Notorious One.

Post #552

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Ruth Bader Ginsburg in 1953

By: Timothy P. Flynn

Three years ago, when sworn into the SCOTUS Bar in Washington, D.C., I was lucky enough to get a seat toward the front of the Court's chamber to observe the nine Justices, all still on the court today, up-close and personal. Literally, to the far left on the bench was a diminutive woman; Justice Ruth Bader Ginsburg.

Appointed in 1993 under President Clinton, Justice Ginsburg just recently turned 80. When I saw her listen as the High Court's newest opinions were read to the gathered public a few years ago, she was slouched over in her big black leather chair as if asleep.  Later in the session, I realized she was listening closely and taking notes.

At 80, Justice Ginsburg is sharp, on her game, and regularly in the legal news.  Physically, while she admitted wistfully to the New York Times that her "water-skiing" days are over, she is a  proud survivor of cancer [twice] who has maintained a clean bill of health from the National Institute of Health; the NIH tracks her soundness very closely.

SCOTUS retirement politics runs in cycles across the decades, as Justices age and retire or, rarely, die on the bench like Justice William Rehnquist in 2005.  In the late 1990s, for example, rumors circulated every fall about the health of Justice William Brennan, Jr. who remained on the bench well into his eighties.

It seems that when a Justice hits 80, with a president in the White House that has compatible jurisprudential views, legal scholars and politicians of the same bent emphasize the significance of a compatico-appointment; get while the gettin's good, so to speak.  This is now happening to Justice Ginsburg who, amid a growing chorus to step-aside, states publicly that having a Democrat in the White House will not factor into her decision when to retire.

Justice Ginsburg went on a bit of a publicity tour this spring, giving speeches and interviews to Tier One law schools, lawyers' groups and newspapers on the seminal decisions of the 2012 term.  Of particular note, Justice Ginsburg commented on the same-sex marriage DOMA decision, saying she did not think SCOTUS should create a constitutional right to gay marriage, like the High Court did with abortion in Roe v Wade in 1973; far too activist she says.

A little-known secret to those outside the legal industry is that Justices do not always pan-out according to the hopes and wishes of the President that appoints them.  President Regan's appointment of Justice Anthony Kennedy, the centrist on the current SCOTUS, is the most notable example of recent decades.

Not so with Justice Ginsburg.  President Clinton knew her liberal roots were sunk deep and she has not disappointed.  Justice Kennedy's "swing-vote" centrism, and Justice Ginsburg's senior liberalism is what gives the current Court it's 5-4 flavor on the seminal cases it has been deciding over the past few years.

Every fall, as the High Court begins its work of listening to the oral arguments of the selected cases, and drafting the decisions opinions, there is perennial commentary about the degree of activism of the Court. According to Justice Ginsburg, the Roberts' Court is among the most activist she has seen during her tenure on the bench.

Liberals fear that unless Justice Ginsburg steps-down soon, a Republican President may likely have the opportunity of appointing a conservative justice mid-decade.  These are the ways politics affect our delicate social fabric on the major legal issues of our time.

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We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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