Bennis v. Michigan
No. 94-8729
Argued November 29, 1995
Decided March 4, 1996
516 U.S. 442
CERTIORARI TO THE SUPREME COURT OF MICHIGAN
REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., and GINSBURG, J., filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined, post, p. 458. KENNEDY, J., filed a dissenting opinion, post, p. 472.
REHNQUIST, J., lead opinion
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. A Michigan court ordered the automobile forfeited as a public nuisance, with no offset for her interest, notwithstanding her lack of knowledge of her husband's activity. We hold that the Michigan court order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment.
Detroit police arrested John Bennis after observing him engaged in a sexual act with a prostitute in the automobile while it was parked on a Detroit city street. Bennis was convicted of gross indecency.{1} The State then sued both [516 U.S. 444] Bennis and his wife, petitioner Tina B. Bennis, to have the car declared a public nuisance and abated as such under §§ 600.3801{2} and 600.3825{3} of Michigan's Compiled Laws.
Petitioner defended against the abatement of her interest in the car on the ground that, when she entrusted her husband to use the car, she did not know that he would use it to violate Michigan's indecency law. The Wayne County Circuit Court rejected this argument, declared the car a public nuisance, and ordered the car's abatement.
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The Michigan Court of Appeals reversed, holding that regardless of the language of Michigan Compiled Law § 600.3815(2),{4} Michigan Supreme Court precedent interpreting this section prevented the State from abating petitioner's interest absent proof that she knew to what end the car would be used. . . .
The Michigan Supreme Court reversed the Court of Appeals and reinstated the abatement in its entirety. It concluded as a matter of state law that the episode in the Bennis vehicle was an abatable nuisance. Rejecting the Court of Appeals' interpretation. . ., the court then announced that, in order to abate an owner's interest in a vehicle, Michigan does not need to prove that the owner knew or agreed that her vehicle would be used in a manner proscribed by [law] when she entrusted it to another user. The court next addressed petitioner's federal constitutional challenges to the State's abatement scheme: the court assumed that petitioner did not know of or consent to the misuse of the Bennis car, and concluded, in light of our decisions in Van Oster v. Kansas, 272 U.S. 465 (1926), and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), that Michigan's failure to provide an innocent owner defense was "without constitutional consequence." . . .
We granted certiorari in order to determine whether Michigan's abatement scheme has deprived petitioner of her interest in the forfeited car without due process, in violation of the Fourteenth Amendment, or has taken her interest for public use without compensation, in violation of the Fifth Amendment as incorporated by the Fourteenth Amendment. We affirm.
The gravamen of petitioner's due process claim is not that she was denied notice or an opportunity to contest the abatement of her car; she was accorded both. . . .. Rather, she claims she was entitled to contest the abatement by showing she did not know her husband would use it to violate Michigan's indecency law. But a long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use.
Our earliest opinion to this effect is Justice Story's opinion for the Court in The Palmyra, 12 Wheat. 1 (1827). The Palmyra, which had been commissioned as a privateer by the King of Spain and had attacked a United States vessel, was captured by a United States war ship and brought into Charleston, South Carolina, for adjudication. On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that, in in rem admiralty proceedings, the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs. Harmony v. United States, 2 How. 210, 234 (1844).
In Dobbins's Distillery v. United States, 96 U.S. 395, 401 (1878), this Court upheld the forfeiture of property used by a lessee in fraudulently avoiding federal alcohol taxes, observing:
Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault . . . , and it has always been held . . . that the acts of [the possessors] bind the interest of the owner . . . whether he be innocent or guilty.
In Van Oster v. Kansas, 272 U.S. 465 (1926), this Court upheld the forfeiture of a purchaser's interest in a car misused by the seller. Van Oster purchased an automobile from a dealer, but agreed that the dealer might retain possession for use in its business. The dealer allowed an associate to use the automobile, and the associate used it for the illegal transportation of intoxicating liquor. Id. at 465-466. The State brought a forfeiture action pursuant to a Kansas statute, and Van Oster defended on the ground that the transportation of the liquor in the car was without her knowledge or authority. This Court rejected Van Oster's claim:
It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. . . .
It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment.
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In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the most recent decision on point, the Court reviewed the same cases discussed above, and concluded that "the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense." Petitioner is in the same position as the various owners involved in the forfeiture cases beginning with The Palmyra in 1827. She did not know that her car would be used in an illegal activity that would subject it to forfeiture. But, under these cases, the Due Process Clause of the Fourteenth Amendment does not protect her interest against forfeiture by the government.
Petitioner relies on a passage from Calero-Toledo, that t would be difficult to reject the constitutional claim of . . . an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property. But she concedes that this comment was obiter dictum, and "[i]t is to the holdings of our cases, rather than their dicta, that we must attend." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379 (1994). . . .
JUSTICE STEVENS' dissent argues that our cases treat contraband differently from instrumentalities used to convey contraband, like cars: objects in the former class are forfeitable "however blameless or unknowing their owners may be," but, with respect to an instrumentality in the latter class, an owner's innocence is no defense only to the "principal use being made of that property." However, this Court's precedent has never made the due process inquiry depend on whether the use for which the instrumentality was forfeited was the principal use. If it had, perhaps cases like Calero-Toledo, in which Justice Douglas noted in dissent that there was no showing that the "yacht had been notoriously used in smuggling drugs . . . and so far as we know only one marihuana cigarette was found on the yacht,"(opinion dissenting in part), might have been decided differently.
The dissent also suggests that The Palmyra line of cases "would justify the confiscation of an ocean liner just because one of its passengers sinned while on board." None of our cases have held that an ocean liner may be confiscated because of the activities of one passenger. We said in Goldsmith-Grant, and we repeat here, that "[w]hen such application shall be made, it will be time enough to pronounce upon it."
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In Austin [v. United States, 509 U.S. 602], held that because "forfeiture serves at least in part, to punish the owner," forfeiture proceedings are subject to the limitations of the Eighth Amendment's prohibition against excessive fines. There was no occasion in that case to deal with the validity of the "innocent owner defense," other than to point out that if a forfeiture statute allows such a defense, the defense is additional evidence that the statute itself is "punitive" in motive. In this case, however, Michigan's Supreme Court emphasized with respect to the forfeiture proceeding at issue: "It is not contested that this is an equitable action," in which the trial judge has discretion to consider "alternatives [to] abating the entire interest in the vehicle."
In any event, for the reasons pointed out in Calero-Toledo and Van Oster, forfeiture also serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses "both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable." Calero-Toledo, supra at 687. This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner's consent to use it, petitioner was also potentially liable for her husband's use of the car in violation of Michigan negligence law. Mich.Comp.Laws.Ann. § 257.401 (1990).
The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner.
Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.
We conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is therefore
Affirmed.
THOMAS, J., concurring
JUSTICE THOMAS, concurring.
I join the opinion of the Court.
Mrs. Bennis points out that her property was forfeited even though the State did not prove her guilty of any wrongdoing. The State responds that forfeiture of property simply because it was used in crime has been permitted time out of mind. It also says that it wants to punish, for deterrence and perhaps also for retributive purposes, persons who may have colluded or acquiesced in criminal use of their property, or who may at least have negligently entrusted their property to someone likely to use it for misfeasance. But, the State continues, it does not want to have to prove (or to refute proof regarding) collusion, acquiescence, or negligence.
As the Court notes, evasion of the normal requirement of proof before punishment might well seem "unfair." . One unaware of the history of forfeiture laws and 200 years of this Court's precedent regarding such laws might well assume that such a scheme is lawless -- a violation of due process. As the Court remarked 75 years ago in ruling upon a constitutional challenge to forfeiture of the property of an innocent owner:
If the case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the [statute at issue] with the accepted tests of human conduct. . . . There is strength . . . in the contention that . . . [the statute at issue] seems to violate that justice which should be the foundation of the due process of law required by the Constitution.
This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable. As detailed in the Court's opinion and the cases cited therein, forfeiture of property without proof of the owner's wrongdoing, merely because it was "used" in or was an "instrumentality" of crime has been permitted in England and this country, both before and after the adoption of the Fifth and Fourteenth Amendments. Indeed, 70 years ago, this Court held in Van Oster v. Kansas, 272 U.S. 465 (1926), that an automobile used in crime could be forfeited notwithstanding the absence of any proof that the criminal use occurred with "knowledge or authority" of the owner. A law of forfeiture without an exception for innocent owners, the Court said, "builds a secondary defense" for the State against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner.
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Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice. When the property sought to be forfeited has been entrusted by its owner to one who uses it for crime, however, the Constitution apparently assigns to the States and to the political branches of the Federal Government the primary responsibility for avoiding that result.
GINSBURG, J., concurring
JUSTICE GINSBURG, concurring.
I join the opinion of the Court and highlight features of the case key to my judgment.
The dissenting opinions target a law scarcely resembling Michigan's "red light abatement" prescription, as interpreted by the State's courts. First, it bears emphasis that the car in question belonged to John Bennis as much as it did to Tina Bennis. At all times, he had her consent to use the car, just as she had his. And it is uncontested that Michigan may forfeit the vehicle itself. The sole question, then, is whether Tina Bennis is entitled not to the car, but to a portion of the proceeds (if any there be after deduction of police, prosecutorial, and court costs) as a matter of constitutional right.
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Nor is it fair to charge the trial court with "blatant unfairness" in the case at hand. That court declined to order a division of sale proceeds, as the trial judge took pains to explain, for two practical reasons: the Bennises have "another automobile," and the age and value of the forfeited car (an 11-year-old Pontiac purchased by John and Tina Bennis for $600) left "practically nothing" to divide after subtraction of costs.
Michigan, in short, has not embarked on an experiment to punish innocent third parties. See post this page (STEVENS, J., dissenting). Nor do we condone any such experiment. Michigan has decided to deter Johns from using cars they own (or co-own) to contribute to neighborhood blight, and that abatement endeavor hardly warrants this Court's disapprobation.
STEVENS, J., dissenting
JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE BREYER join, dissenting.
For centuries, prostitutes have been plying their trade on other people's property. Assignations have occurred in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and back seats. A profession of this vintage has provided governments with countless opportunities to use novel weapons to curtail its abuses. As far as I am aware, however, it was not until 1988 that any State decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated.
The logic of the Court's analysis would permit the States to exercise virtually unbridled power to confiscate vast amounts of property where professional criminals have engaged in illegal acts. Some airline passengers have marijuana cigarettes in their luggage; some hotel guests are thieves; some spectators at professional sports events carry concealed weapons; and some hitchhikers are prostitutes. The State surely may impose strict obligations on the owners of airlines, hotels, stadiums, and vehicles to exercise a high degree of care to prevent others from making illegal use of their property, but neither logic nor history supports the Court's apparent assumption that their complete innocence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction.
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I
For purposes of analysis, it is useful to identify three different categories of property that are subject to seizure: pure contraband; proceeds of criminal activity; and tools of the criminal's trade.
The first category -- pure contraband -- encompasses items such as adulterated food, sawed-off shotguns, narcotics, and smuggled goods. With respect to such "objects the possession of which, without more, constitutes a crime," the government has an obvious remedial interest in removing the items from private circulation, however blameless or unknowing their owners may be. The States' broad and well established power to seize pure contraband is not implicated by this case, for automobiles are not contraband.
The second category -- proceeds -- traditionally covered only stolen property, whose return to its original owner has a powerful restitutionary justification. Recent federal statutory enactments have dramatically enlarged this category to include the earnings from various illegal transactions. The prevalence of protection for innocent owners in such legislation does, however, lend support to the conclusion that elementary notions of fairness require some attention to the impact of a seizure on the rights of innocent parties.
The third category includes tools or instrumentalities that a wrongdoer has used in the commission of a crime, also known as "derivative contraband," see One 1958 Plymouth Sedan, 380 U.S. at 699. Forfeiture is more problematic for this category of property than for the first two, both because of its potentially far broader sweep, and because the government's remedial interest in confiscation is less apparent. Many of our earliest cases arising out of these kinds of seizures involved ships that engaged in piracy on the high seas, in the slave trade, or in the smuggling of cargoes of goods into the United States. These seizures by the sovereign were approved despite the faultlessness of the ship's owner. Because the entire mission of the ship was unlawful, admiralty law treated the vessel itself as if it were the offender. Moreover, under "the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability."
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While our historical cases establish the propriety of seizing a freighter when its entire cargo consists of smuggled goods, none of them would justify the confiscation of an ocean liner just because one of its passengers sinned while on board. See, e.g., Phile v. Ship Anna, 1 Dall. 197, 206 (C.P.Phila.Cty. 1787) (holding that forfeiture of a ship was inappropriate if an item of contraband hidden on board was "a trifling thing, easily concealed, and which might fairly escape the notice of the captain"); J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 512 (1921) (expressing doubt about expansive forfeiture applications). The principal use of the car in this case was not to provide a site for petitioner's husband to carry out forbidden trysts. Indeed, there is no evidence in the record that the car had ever previously been used for a similar purpose. An isolated misuse of a stationary vehicle should not justify the forfeiture of an innocent owner's property on the theory that it constituted an instrumentality of the crime.
This case differs from our historical precedents in a second, crucial way. In those cases, the vehicles or the property actually facilitated the offenses themselves. . . . Our leading decisions on forfeited conveyances, for example, involved offenses of which transportation was an element. In Van Oster v. Kansas, 272 U.S. 465 (1926), for example, the applicable statute prohibited transportation of intoxicating liquor. . . . [S]imilarly, a yacht was seized because it had been used "to transport, or to facilitate the transportation of" a controlled substance. Here, on the other hand, the forfeited property bore no necessary connection to the offense committed by petitioner's husband. It is true that the act occurred in the car, but it might just as well have occurred in a multitude of other locations. The mobile character of the car played a part only in the negotiation, but not in the consummation of the offense.
In recent years, a majority of the members of this Court has agreed that the concept of an instrumentality subject to forfeiture -- also expressed as the idea of "tainted" items -- must have an outer limit. In Austin, the Court rejected the argument that a mobile home and auto body shop where an illegal drug transaction occurred were forfeitable as "instruments" of the drug trade. JUSTICE SCALIA agreed that a building in which an isolated drug sale happens to take place also cannot be regarded as an instrumentality of that offense. (opinion concurring in part and concurring in judgment). JUSTICE THOMAS, too, has stated that it is difficult to see how real property bearing no connection to crime other than serving as the location for a drug transaction is in any way "guilty" of an offense. The car in this case, however, was used as little more than an enclosure for a one-time event, effectively no different from a piece of real property. By the rule laid down in our recent cases, that nexus is insufficient to support the forfeiture here.
The State attempts to characterize this forfeiture as serving exclusively remedial, as opposed to punitive ends, because its goal was to abate what the State termed a "nuisance." Even if the State were correct, that argument would not rebut the excessiveness of the forfeiture, which I have discussed above. But in any event, there is no serious claim that the confiscation in this case was not punitive. The majority itself concedes that "`forfeiture serves at least in part, to punish the owner.'" At an earlier stage of this litigation, the State unequivocally argued that confiscation of automobiles in the circumstances of this case "is swift and certain `punishment' of the voluntary vice consumer." Therefore, the idea that this forfeiture did not punish petitioner's husband -- and, a fortiori, petitioner herself -- is simply not sustainable.
II
Apart from the lack of a sufficient nexus between petitioner's car and the offense her husband committed, I would reverse because petitioner is entirely without responsibility for that act. Fundamental fairness prohibits the punishment of innocent people.
The majority insists that it is a settled rule that the owner of property is strictly liable for wrongful uses to which that property is put. Only three Terms ago, however, the Court surveyed the same historical antecedents and held that all of its forfeiture decisions rested at bottom, on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence. According to Austin v. [United States], even the hoary fiction that property was forfeitable because of its own guilt was based on the idea that "`"such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture."'" It is conceded that petitioner was in no way negligent in her use or entrustment of the family car. Thus, no forfeiture should have been permitted. The majority, however, simply ignores Austin's detailed analysis of our case law without explanation or comment.
Even assuming that strict liability applies to "innocent" owners, we have consistently recognized an exception for truly blameless individuals. The Court's opinion in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. at 688-690, established the proposition that the Constitution bars the punitive forfeiture of property when its owner alleges and proves that he took all reasonable steps to prevent its illegal use. . . .
The unique facts of this case demonstrate that petitioner is entitled to the protection of that rule. The subject of this forfeiture was certainly not contraband. It was not acquired with the proceeds of criminal activity and its principal use was entirely legitimate. It was an ordinary car that petitioner's husband used to commute to the steel mill where he worked. Petitioner testified that they had been married for nine years; that she had acquired her ownership interest in the vehicle by the expenditure of money that she had earned herself; that she had no knowledge of her husband's plans to do anything with the car except "come directly home from work," as he had always done before; and that she even called "Missing Persons" when he failed to return on the night in question. App. 8-10. Her testimony is not contradicted, and certainly is credible. Without knowledge that he would commit such an act in the family car, or that he had ever done so previously, surely petitioner cannot be accused of failing to take "reasonable steps" to prevent the illicit behavior. She is just as blameless as if a thief, rather than her husband, had used the car in a criminal episode.
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Forfeiture of an innocent owner's property that plays a central role in a criminal enterprise may be justified on reasoning comparable to the basis for imposing liability on a principal for an agent's torts. Just as the risk of respondeat superior liability encourages employers to supervise more closely their employees' conduct, see Arizona v. Evans, 514 U.S. 1, 29, n.5 (1995) (GINSBURG, J., dissenting), so the risk of forfeiture encourages owners to exercise care in entrusting their property to others. . . . . There is no reason to think that the threat of forfeiture will deter an individual from buying a car with her husband -- or from marrying him in the first place -- if she neither knows nor has reason to know that he plans to use it wrongfully.
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The absence of any deterrent value reinforces the punitive nature of this forfeiture law. But petitioner has done nothing that warrants punishment. She cannot be accused of negligence or of any other dereliction in allowing her husband to use the car for the wholly legitimate purpose of transporting himself to and from his job. She affirmatively alleged and proved that she is not in any way responsible for the conduct that gave rise to the seizure. If anything, she was a victim of that conduct. In my opinion, these facts establish that the seizure constituted an arbitrary deprivation of property without due process of law.
III
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I believe the Court errs today by assuming that the power to seize property is virtually unlimited and by implying that our opinions in Calero-Toledo and Austin were misguided. Some 75 years ago, when presented with the argument that the forfeiture scheme we approved had no limit, we insisted that expansive application of the law had not yet come to pass. "When such application shall be made," we said, "it will be time enough to pronounce upon it." That time has arrived when the State forfeits a woman's car because her husband has secretly committed a misdemeanor inside it. While I am not prepared to draw a bright line that will separate the permissible and impermissible forfeitures of the property of innocent owners, I am convinced that the blatant unfairness of this seizure places it on the unconstitutional side of that line.
I therefore respectfully dissent.
KENNEDY, J., dissenting
JUSTICE KENNEDY, dissenting.
The forfeiture of vessels pursuant to the admiralty and maritime law has a long, well recognized tradition, evolving as it did from the necessity of finding some source of compensation for injuries done by a vessel whose responsible owners were often half a world away and beyond the practical reach of the law and its processes.
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We can assume the continued validity of our admiralty forfeiture cases without in every analogous instance extending them to the automobile, which is a practical necessity in modern life for so many people. At least to this point, it has not been shown that a strong presumption of negligent entrustment or criminal complicity would be insufficient to protect the government's interest where the automobile is involved in a criminal act in the tangential way that it was here. Furthermore, as JUSTICE STEVENS points out, ante at 462-463, the automobile in this case was not used to transport contraband, and so the seizure here goes beyond the line of cases which sustain the government's use of forfeiture to suppress traffic of that sort.
This forfeiture cannot meet the requirements of due process. Nothing in the rationale of the Michigan Supreme Court indicates that the forfeiture turned on the negligence or complicity of petitioner, or a presumption thereof, and nothing supports the suggestion that the value of her co-ownership is so insignificant as to be beneath the law's protection.
For these reasons, and with all respect, I dissent.