Gorsuch and Sotomayor Join Forces To Challenge Chicago’s $264 Million Car-Seizure Scheme as Unconstitutional

An ideological odd couple is emerging at the Supreme Court as, for the second time in two weeks, Justices Neil Gorsuch and Sonia Sotomayor — a conservative and a liberal jurist — find themselves on the same side of a constitutional question and set apart from the remainder of the high bench.The latest collaboration between Justices Gorsuch and Sotomayor came late last week in O’Connell v. Chicago, a case challenging the Windy City’s vehicle-forfeiture scheme. That came on the heels of the two justices joining forces the week before in Jesus Herrera-Salazar v. United States, which centered on whether multiple prosecutions of an illegal migrant violated the constitutional prohibition against double jeopardy.In both O’Donnell and Jesus Herrera-Salazar, Justices Gorsuch and Sotomayor agreed with the rest of the court that the cases were not worth taking up. They wrote separately, though, to surface concerns that appeared not to trouble their fellow justices. The collaborations between Justices Sotomayor and Gorsuch have now yielded what the court calls statements “respecting the denial of certiorari,” dispatches primarily meant to instruct lower courts.For the Supreme Court to take up a case, four justices must vote to grant certiorari. A Supreme Court watcher, Joshua Blackman, tells The New York Sun in an email that Justice Sotomayor “finds the civil liberties cases she knows Justice Gorsuch will care about and gets an extra vote. But she can’t quite get 4 to grant certiorari.” The result is a growing body of legal thinking that remains nonbinding on lower courts — and does not amount to precedent for the Nine.O’Donnell, like Jesus Herrera-Salazar, turns on the Fifth Amendment. The end of that section of the parchment ordains that “nor shall private property be taken for public use, without just compensation.” The prohibition is an ancient one, rooted in common law. Justice Joseph Story writes in his Commentaries on the Constitution that the Takings Clause is a “principle of universal law” without which “almost all other rights would be utterly worthless.”Ryan O’Connell’s case rose to the Supreme Court after he received two tickets for an expired meter and one ticket for time-restricted parking, amounting to a total fine of some $524. After the tickets went unpaid, the Windy City — an appellation first coined in the Sun — towed and impounded Mr. O’Connell’s vehicle, adding boot, towing, and storage fees. The city then sold the car for its scrap value of $273. Mr. O’Connell did not receive any compensation for the loss of his vehicle. That precipitated his challenge under the Takings Clause.Mr. O’Connell’s appeal was rejected by the United States Court of Appeals for the Seventh Circuit, which ruled against him and upheld Chicago’s actions as consistent with the Takings Clause, reasoning that they amounted to “an exercise of the City’s police power to enforce its traffic code.” The police power flows from the Tenth Amendment, which has been understood to reserve all powers not delegated to the federal government to the states — and to cities like Chicago.Justice Sotomayor, joined by Justice Gorsuch, writes in her statement on O’Donnell that she has “serious concerns” about the Seventh Circuit’s ruling. She notes that “Chicago’s vehicle-forfeiture scheme is vast and lucrative, helping the city generate, according to one estimate, $264 million in traffic-ticket revenue (or 7 percent of the city’s operating budget) in 2016” — all without compensation being paid to the vehicles’ erstwhile owners.Justices Sotomayor and Gorsuch add that in “Chicago, a driver who fails to pay as few as two parking tickets risks forfeiting his vehicle to the city. The city then can do as it pleases with the vehicle, with no obligation to pay compensation, offset the unpaid ticket debt, or return any surplus to the owner if the vehicle is sold for a profit.” Both agree, though, that the case is not yet ripe for consideration by the Nine because it would benefit from “further percolation.”The justices reckon that Mr. O’Connell’s case is strengthened because “Chicago does not impound only those vehicles involved in violations of its municipal traffic code. Rather, the city may impound any vehicle of a delinquent resident so long as ticket debts remain unpaid, regardless of whether the vehicle was involved in an infraction.” Merely falling back, as Chicago does here, on a “talismanic invocation” of the police power, the justices warn, ought not to pass constitutional muster.

Gorsuch and Sotomayor Join Forces To Challenge Chicago’s $264 Million Car-Seizure Scheme as Unconstitutional

Gorsuch and Sotomayor Join Forces To Challenge Chicago’s $264 Million Car-Seizure Scheme as Unconstitutional

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