Culley v. Marshall: Separate preliminary hearing not required in forfeiture cases, but five justices suggest other forfeiture challenges
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
Due process does not require a separate preliminary hearing to determine whether the Government may retain property before a pending forfeiture hearing, the U.S. Supreme Court held May 9 in Culley v. Marshall.
But five justices suggested forfeiture proceedings may be subject to challenge on other grounds.
Halima Culley loaned her car to her adult son. Police found drugs in the car during a traffic stop.
Police seized the car incident to the son’s arrest, and sought forfeiture of the car.
Under Alabama law, police could seize the car so long as the State “promptly” initiated a forfeiture proceeding.
At the forfeiture hearing, the owner can prevail if they prove they lacked knowledge of the car’s connection to a drug crime.
Culley eventually prevailed at a forfeiture hearing more than one year after her car’s seizure.
Culley then filed a class-action suit under Sec. 1983 in U.S. District Court, claiming State officials violated her due process rights by retaining her car during the forfeiture process without holding a preliminary hearing.
She argued a preliminary hearing was required under the Matthews v. Eldridge due process test, at which a court would balance the private interests at stake, the value of added procedures, and the burdens on the government from the added procedures.
The District Court dismissed her complaint.
The Eleventh Circuit affirmed.
The Supreme Court granted cert. to resolve a circuit split.
Holding
The Court, in a 6-3 opinion, held that due process does not require a separate preliminary hearing pending the forfeiture hearing.
The Court began by noting that Culley was not directly challenging the timeliness of her forfeiture hearing. But due process does require a “timely post-seizure forfeiture hearing”, the Court said.
Instead, Culley challenged the lack of a separate preliminary hearing, in which the court would focus on the “probable validity” of the forfeiture.
Culley’s “argument for a separate preliminary hearing appears in many respects to be a backdoor argument for a more timely hearing so that a property owner with a good defense against forfeiture can recover her property more quickly”, the Court said.
“But the Court’s precedents already require a timely hearing”, the Court said.
Further, “there is no good reason to think that the Matthews balancing test would yield a different result here,” the Court said. “A timely forfeiture hearing protects the interest of both the claimant and the government.”
An additional preliminary hearing “would interfere with the government’s important law-enforcement activities in the period after the seizure and before the forfeiture hearing,” the Court said.
Last, the Court noted that “historical practice” supports holding that due process doesn’t require a separate preliminary hearing.
“Since the Founding era, statutes have authorized the Government to seize personal property and hold it pending a forfeiture hearing without a separate preliminary hearing”, the Court said.
“The absence of separate preliminary hearings in civil forfeiture proceedings – from the Founding until the late 20th century – is weighty evidence that due process does not require such hearings”, the Court concluded.
Five Justices Suggest Other Challenges
Justice Gorsuch, joined by Justice Thomas, concurred in the opinion, but wrote separately to “agree with the dissent that this case leaves many larger questions unanswered about whether, and to what extent, contemporary civil forfeiture practice can be squared with the Constitution’s promise of due process.”
Gorsuch noted that “as commonplace as these civil forfeiture laws may be, most are pretty new”, and arose in the 1970s and 1980s as part of the “War on Drugs”.
Civil forfeiture has “altered law enforcement practices across the Nation in profound ways”, Gorsuch said.
He noted that to secure a criminal penalty such as a fine, the Government was required to prove a defendant’s guilt beyond a reasonable doubt at a trial, but civil forfeiture takes place “under a far more forgiving burden of proof.”
The Fifth and Fourteenth Amendments’ guarantee that property not be taken without due process of law historically meant that the Government could not deprive a person of property until after a trial, Gorsuch said.
Gorsuch noted that, historically, forfeiture only applied in narrow circumstances, such as admiralty. And those laws only applied to the instruments of an offense, not all property “facilitating” the offense, as well.
That “is the difference between being able to confiscate the materials and equipment used to produce an illicit drug and being able to confiscate someone’s car after he used it as the site to conduct a single drug transaction”, Gorsuch said.
“Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have led to egregious and well-chronicled abuses,” Gorsuch asked.
“Perhaps it has something to do with the relative lack of power of those on whom the system preys”, he said. “Perhaps the government agencies’ increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle.”
Gorsuch concluded by emphasizing the right to a jury trial before the government may take property “has always been the rule.”
Gorsuch hoped to review such issues “in future cases, with the benefit of full briefing.”
Justice Sotomayor dissented, joined by Justices Kagan and Jackson.
The majority opinion relates “only to retention hearings”, Sotomayor emphasized. “It does not foreclose other potential due process challenges.”
“For instance, such claimants could challenge notice of a forfeiture posted only in a newspaper, the lack of a neutral adjudication at an initial hearing, or the standard of proof necessary to seize a car”, she said.
“Lower courts remain free to apply Matthews to those claims”, Sotomayor said.