Eminent domain is one of the harshest tools government can assert to curtail property rights. Zoning regulates how a property owner may use their property, but eminent domain goes to their right to own the property itself. Traditionally victorious, the government occasionally is overzealous in its application of the doctrine against property owners. Recently, the Chicago Tribune wrote about a victory for property owners against a forfeiture action brought by the US government. The case involves a family owned motel in Tewksbury, Massachusetts.
The US government cited the subject property as the site of at least 15 drug related incidents between 1994 and 2008. Using that as a pretext for seizure, the US government sued under eminent domain for the court to award them the property.
Finding that the government had not met its burden in "in providing that the property is forfeitable," Magistrate Judge Judith Dein of U.S. District Court in Massachusetts dismissed the government's forfeiture action. The Judge concluded that "[p]unishing Mr. Caswell by forfeiting the motel obviously would not punish those engaged in the criminal conduct." Ultimately the Judge took note of the fact that the government failed to work with the motel or notify it that it faced forfeiture. The Judge concluded that the "draconian" measure of forfeiture should be reserved for worse cases.
What does a Massachusetts case have to do with Chicago? Well, the Chicago Municipal Code contains a very similar power for city attorneys. Section 8-4-090. I know from experience that the City's attorneys use it in similar ways described in the article above that Judge Dein found "punishing", unwarranted, and misdirected.
Using this section of the municipal code, the City may heavily and punitively fine property owners for the conduct of others. After being provided notice, property owners have 30 days to evict or otherwise remove any nuisance creating tenants, friends, or even relatives. It is the last item that creates a potential constitutional issue.
While it is constitutional for the government to seize property, they must for all seized property, pay a fair price or they run afoul of the Fourteenth and Fifth Amendment's Takings Clause of the Constitution. Chicago's law operates in a way that not only deprives property owners of their property, it forces them to separate families, a violation of the First Amendment, or the Fifth/Fourteenth.
Chicago should reform this legislation and ensure it is not be applied in any discriminatory manner. My ultimate suspicion is that the City uses these provisions and a special police task force primarily against minorities. Such powerful laws require strict oversight as was evidenced in Massachusetts but all too often aggressive tactics win the day and property owners and their communities suffer. An attorney is a very effective tool to thwart governmental forfeiture actions under any theory.
Finding that the government had not met its burden in "in providing that the property is forfeitable," Magistrate Judge Judith Dein of U.S. District Court in Massachusetts dismissed the government's forfeiture action. The Judge concluded that "[p]unishing Mr. Caswell by forfeiting the motel obviously would not punish those engaged in the criminal conduct." Ultimately the Judge took note of the fact that the government failed to work with the motel or notify it that it faced forfeiture. The Judge concluded that the "draconian" measure of forfeiture should be reserved for worse cases.
What does a Massachusetts case have to do with Chicago? Well, the Chicago Municipal Code contains a very similar power for city attorneys. Section 8-4-090. I know from experience that the City's attorneys use it in similar ways described in the article above that Judge Dein found "punishing", unwarranted, and misdirected.
Using this section of the municipal code, the City may heavily and punitively fine property owners for the conduct of others. After being provided notice, property owners have 30 days to evict or otherwise remove any nuisance creating tenants, friends, or even relatives. It is the last item that creates a potential constitutional issue.
While it is constitutional for the government to seize property, they must for all seized property, pay a fair price or they run afoul of the Fourteenth and Fifth Amendment's Takings Clause of the Constitution. Chicago's law operates in a way that not only deprives property owners of their property, it forces them to separate families, a violation of the First Amendment, or the Fifth/Fourteenth.
Chicago should reform this legislation and ensure it is not be applied in any discriminatory manner. My ultimate suspicion is that the City uses these provisions and a special police task force primarily against minorities. Such powerful laws require strict oversight as was evidenced in Massachusetts but all too often aggressive tactics win the day and property owners and their communities suffer. An attorney is a very effective tool to thwart governmental forfeiture actions under any theory.
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