Civil asset forfeiture. Court fines and fees. Property tax foreclosure laws.
All are things local governments in Michigan use to operate and fund themselves. And all could be changed by a new U.S. Supreme Court ruling.
The case had to do with whether police in Indiana could seize a man’s car after he was charged with selling heroin.
Even though the man was convicted, the court ruled the seizure was illegal because the car was worth many times more than the maximum fine for the crime. In other words, it was an excessive fine or fee—the kind prohibited by the Constitution’s 8th Amendment.
By ruling unanimously that the 8th Amendment clause is applicable to state and local governments, the Supreme Court ruled that “forfeitures are unconstitutional when they are excessive,” says ACLU of Michigan attorney Daniel Korobkin.
“Even if you’re not being sent to jail or prison, imposing crippling fees or fines or forfeitures that are way out of proportion to the seriousness of whatever offense got someone into court in the first place is also unconstitutional,” he says.
Korobkin says this has implications for a number of practices that Michigan’s local government agencies have come to rely on for funding. Among them are court fees and other costs tacked onto the cost of doing business with the criminal justice system, even for minor infractions like traffic violations.
This ruling gives a “yellow light or yield sign when it comes to courts imposing forfeitures on people for minor offenses, which can lead to devastating debts, court costs and fines for minor offenses” that burden the poor the most, Korobkin said.
Courts statewide generated about $41 million in court fees in 2017. Michigan Supreme Court Chief Justice Bridget McCormick tweeted this on Wednesday:
Good morning state courts.
"Protection against excessive punitive economic sanctions secured by the
Clause is, to repeat, both “fundamental to our scheme of
ordered liberty” and “deeply rooted in this Nation’s history
and tradition.”" https://t.co/KGVQz2V2Ff
— Chief Justice McCormack (@BridgetMaryMc) February 20, 2019
Another straightforward implication of the ruling could be for civil asset forfeiture laws, the process that local Indiana police used to seize the plaintiff’s car.
Jarrett Skorup of the Mackinac Center for Public Policy says police are only supposed to seize property that’s implicated in illegal activity. But in Michigan, people don’t have to be charged with a crime to have property confiscated by police.
According to a Michigan State Police report, the state’s police agencies seized more than $13 million worth of assets through civil forfeiture in 2017. But fewer than half the people who had property seized have been convicted of a crime. The state Legislature is currently debating bills that would require a conviction for asset seizures to be valid.
Even in cases where someone is convicted, Skorup says the Supreme Court ruling strongly suggests that civil asset forfeiture is potentially in for big changes.
“Just because somebody is guilty of an illegal activity, that doesn’t necessarily mean their property is subject to forfeiture,” Skorup said. “They could be convicted, but that doesn’t mean that law enforcement can necessarily seize their home, or seize hundreds of dollars from their bank account.”
The gist of the court’s ruling is that government fines or fees can’t be disproportionate to the offense that was committed. And that could also have significant implications for Michigan’s property tax foreclosure laws.
Those laws currently allow counties to seize tax-foreclosed homes after taxes are delinquent for three years, sell those homes, and pocket any proceeds from the sale. Counties across the state, particularly Wayne County, have used the program to fund government operations or projects.
But Michigan’s law is being challenged in several lawsuits as an example of the government taking private property without just compensation. Those lawsuits argue that counties should only be able to recoup the cost of delinquent taxes, and owe foreclosed homeowners any remaining equity in their homes.
That kind of practice is “exactly the kind of thing the court is talking about here,” Korobkin said. “The government’s ability to seize and forfeit property and sell it at a value that greatly exceeds whatever the person could have been punished with in terms of a fine or a fee, that will also come under the 8th Amendment ruling.”
The court’s ruling is unlikely to have any immediate effect on these practices. But it bolsters legal efforts to challenge them, and signals the court is unlikely to look kindly on cases where local governments use significant fines, fees, and forfeitures to self-fund.