William H. Rehnquist: We'll hear argument next in Number 94-8729... the spectators are admonished not to talk until you get out of the courtroom. The Court remains in session. We'll hear argument next in Number 94-8729, Tina Bennis v. Michigan. Mr. Herpel, you may proceed.
Stefan B. Herpel: Mr. Chief Justice, and may it please the Court: On an October evening in 1988, petitioner's husband, John Bennis, was arrested for having illicit sex with a prostitute in one of the Bennis family automobiles, and Detroit police seized the automobile. Both Tina Bennis' interest in the vehicle and her husband's interest were declared forfeit under a Michigan nuisance abatement statute. The Michigan supreme court rejected petitioner's claim that the Due Process and Takings Clauses protected her, an innocent owner, from forfeiture.
Sandra Day O'Connor: Mr. Herpel, will you tell us what the record shows was the nature of the ownership in the automobile in question?
Stefan B. Herpel: The record shows that the vehicle was co-owned. That is, it was cotitled--
Sandra Day O'Connor: What kind of ownership under State law, joint with right of survivorship, cotenants, what was it?
Stefan B. Herpel: --Your Honor, I--
Sandra Day O'Connor: Do we know?
Stefan B. Herpel: --It's a heavily regulated area and I attempted to ascertain which common law joint property interest this most closely resembled. I found nothing definitive on that, but I believe--
Sandra Day O'Connor: You can't tell us?
Stefan B. Herpel: --I believe it's close to a tenant in common.
Sandra Day O'Connor: How was the automobile titled?
Stefan B. Herpel: The automobile was titled in their name, but there's no--
Sandra Day O'Connor: In both names--
Stefan B. Herpel: --Yes.
Sandra Day O'Connor: --or one name?
Stefan B. Herpel: In both names.
Sandra Day O'Connor: In Michigan law, can one co-owner dispose of good title to the automobile?
Stefan B. Herpel: I believe that that is true, Your Honor, that... not for the entire automobile. One co-owner--
Sandra Day O'Connor: The entire automobile.
Stefan B. Herpel: --No. I believe that both--
Sandra Day O'Connor: Could one owner dispose of it?
Stefan B. Herpel: --I do not believe so, Justice O'Connor.
Sandra Day O'Connor: But you can't give us any citations or anything like that, or any place in the record where we could ascertain the nature of the ownership.
Stefan B. Herpel: I'm sorry, I cannot, Your Honor, but--
Sandra Day O'Connor: Well, it makes it very difficult, doesn't it, to decide this case when we don't know the nature of the ownership or what rights a single co-owner would have.
Stefan B. Herpel: --Well, I think it... I'm quite certain that the sole co-owner does not have the right to sell the entire vehicle. That much I'm certain of, that both signatures would be required to dispose of the--
Sandra Day O'Connor: You can't give us a case or a statute or anything of that sort?
Stefan B. Herpel: --I cannot.
Stephen G. Breyer: No. Are we supposed to assume... I wondered the same thing. I thought maybe we're... that we should take an assumption that the supreme court of Michigan... did the supreme court make an assumption, namely the assumption that the ownership interest of your client was such that she had an interest that otherwise couldn't be touched, it was her property, she had an undivided interest or some interest that was totally hers?
Stefan B. Herpel: That much I'm quite sure of, Your Honor.
Stephen G. Breyer: So what kind of an assumption should we make? What kind of assumption did they make?
Stefan B. Herpel: Well, I think that they clearly made an assumption that she had a separately protectable interest in this car, for which--
Stephen G. Breyer: So you're saying even if she had, it was just like totally separate property under Michigan law, she has under Michigan law something that's a 50-percent separate interest, whatever that might mean--
Stefan B. Herpel: --Yes, I would say--
Stephen G. Breyer: --Well, I'm looking for the same thing. What kind of assumption do we make?
Stefan B. Herpel: --Again, I would analogize it to a tenancy in common.
Stephen G. Breyer: Like a tenancy in common.
Stefan B. Herpel: She had the interest that one joint owner in a tenancy in common would have, or one tenant.
Ruth Bader Ginsburg: Does one usually hold cars by tenancy in common? Isn't... but in any event, he is at least half-owner, and you can't impound half a car, and you can't sell at an auction half a car, so in effect your position seems to be that she, because she is half-owner, can immunize him against having his property taken, is that essentially your position?
Stefan B. Herpel: No, Justice Ginsburg, we're not contending that the State has no power to forfeit the vehicle. What we are saying is they cannot do so without compensating Tina Bennis, the innocent owner, for her interest.
Ruth Bader Ginsburg: Well then, why can't... but you're not saying it would be enough to give her whatever pittance was left from this sale after administrative expenses.
Stefan B. Herpel: Well, I would... we would contend, Your Honor, that so-called administrative expenses, attorney's fees, prosecutorial attorney fees and court costs, Detroit police costs, are not properly assessable against her interest, that that... as a matter of constitutional law that it is improper to assess those costs against her--
Ruth Bader Ginsburg: Is it all right for the State to say this vehicle is a public nuisance because of its use?
Stefan B. Herpel: --Well, the court... the court certainly exceeded traditional notions of what constitutes a public nuisance.
Ruth Bader Ginsburg: But didn't it... suppose it had been his car entirely, couldn't they have... would there have been anything unconstitutional about the forfeiture?
Stefan B. Herpel: I don't think the Court has to find that in this case, Your Honor.
William H. Rehnquist: We've held in any number of cases that there's not, that something that's used in the course of committing a felony can be forfeited.
Stefan B. Herpel: I agree, Your Honor, and I only hesitated because the Michigan supreme court applied an extremely novel interpretation of nuisance law, but I don't want to be sidetracked on that issue, because the focus here is on the forfeitability of her interest in the car.
Anthony M. Kennedy: Just before we get too far away from the answer to Justice Ginsburg's question, if the State can forfeit the husband's interest and in your position it has to remit to the wife her interest... I take it that's your position.
Stefan B. Herpel: Yes, it is, Justice Kennedy.
Anthony M. Kennedy: Does the State have to compensate the wife for the loss of use of the property, her portion of the property while the forfeiture proceedings are being conducted?
Stefan B. Herpel: Your Honor, I guess that gest into the issue of whether pre-hearing seizure is appropriate, which is not presented in this case. Assuming that prehearing seizure, which is what was accomplished here, is appropriate, I don't know that she would have a claim for the loss of use of the vehicle in that interim period, if that is your question.
Anthony M. Kennedy: But doesn't that indicate the necessity of having a forfeiture provision such as this?
Stefan B. Herpel: I'm afraid I don't understand your question, Justice Kennedy.
Anthony M. Kennedy: Well, if the most efficient way, if the only efficient way for the State to enforce its laws, let's say, is to forfeit the offending vehicle, then the forfeiture system is adequate, and all you're asking for is that the wife's financial interest in the automobile represented by her half of the equity be returned to her, is that your position?
Stefan B. Herpel: That's the position that we're taking in this case, Your Honor.
Sandra Day O'Connor: And in this case it's a 1977 automobile?
Stefan B. Herpel: That is correct, Justice--
Sandra Day O'Connor: What kind of automobile?
Stefan B. Herpel: --It was a Pontiac sedan.
Sandra Day O'Connor: And so her interest would be about what, would you say?
Stefan B. Herpel: Well, presumptively it would be 50 percent of the resale value of the car. I believe the car was purchased approximately... the record will show that it was purchased approximately 1 month before the forfeiture, and she did testify that she provided most of the purchase money for the car, that there may be an opportunity to rebut the presumption of 50 percent--
Sandra Day O'Connor: And how much was paid for it? Does the record tell us that?
Stefan B. Herpel: --$600.
Sandra Day O'Connor: So we're talking about a claim of $300 for her.
Stefan B. Herpel: Yes, at least $300.
William H. Rehnquist: Mr. Herpel, you referred to your client as an innocent owner, and how do you define innocent owner for these purposes?
Stefan B. Herpel: Well, Your Honor, there are... we propose a standard for defining innocence that we term the negligent entrustment standard, which focuses on whether the owner knew or should have known of the impending illegal use. The Solicitor General has proposed an alternative standard. We contend that she would prevail under either standard, either the all reasonable steps standard proposed by the Solicitor General, or the negligent entrustment standard, which focuses on whether the owner knew or had reason to know of the illegal use.
David H. Souter: Well, let's assume the standard is negligence, what could she have done... what if she knew in this case that her husband was likely to resort to prostitutes using the car, would she have had a right to stop him from using it?
Stefan B. Herpel: Well, I think the standard that we advocate--
David H. Souter: Well, would she have had a right to stop him from using it?
Stefan B. Herpel: --Not post entrustment, Your Honor.
David H. Souter: Well, she didn't have to entrust it. It's half his car.
Stefan B. Herpel: But if the time of entrustment is deemed to be the time--
David H. Souter: Why is there an entrustment? He's half an owner.
Stefan B. Herpel: --I agree that after the creation of the joint property interest there formally can be no entrustment.
David H. Souter: Okay. Let's assume we're at that point, and she finds out that he's doing these things on the way home, she would have had no right to stop him from using the car, would she?
Stefan B. Herpel: That's correct.
David H. Souter: What should she have done in order to satisfy a negligence standard? Should she have called the police and said, look out for this car, my husband may be doing bad things in it? [Laughter] Well, I mean--
Stefan B. Herpel: Are we assuming--
David H. Souter: --I... if we're going to have a negligence standard, does... how would it be applied here?
Stefan B. Herpel: --Well, Your Honor, if I may, I'd just like to digress briefly that the focus--
David H. Souter: Briefly.
Stefan B. Herpel: --is on the time of entrustment, which in a joint ownership situation I think would be deemed the time the joint property interest is created. Now--
Antonin Scalia: If she should have known at that time that he was a scoundrel, that would suffice? [Laughter]
Stefan B. Herpel: --Yes. I think if she knew of the impending illegal use at that time. Now, post entrustment--
Antonin Scalia: Specifically the impending illegal use. It can't be enough that this not a really reliable person that I wouldn't trust the car with, Lord knows what he'll do with it?
Stefan B. Herpel: --Justice Scalia, I think it should be specific to the illegal use--
Antonin Scalia: Wow.
Stefan B. Herpel: --that gives rise to the forfeiture under the statute.
David H. Souter: All right, but in any case, in this case is there any evidence in the record that she knew at the time the purchase... the car was purchased that he might use it in this fashion?
Stefan B. Herpel: No, to the contrary.
David H. Souter: So your position is going to be, if you win this case, that that's the end of the case, that there's no evidence of negligence at that time, and therefore what she may have learned, even if she had known post purchase, would be irrelevant, and that that's the end of the case. She's entitled to her 50 percent share.
Stefan B. Herpel: Certainly that's true in this case--
David H. Souter: Yes.
Stefan B. Herpel: --because the record shows that there is no knowledge at any time up until the time of illegal use, but I... you know, the Court could pose cases, hypotheticals--
David H. Souter: Right.
Stefan B. Herpel: --that if somebody acquired knowledge after entrustment--
David H. Souter: May I ask you a different question? Let's assume that at the time of the purchase she knew, but she was not putting up any of the money and he simply said, I'm buying this car, and I want the title issued and so on, the registration issued to my wife and to me, and he says to her, you have a half interest in the car, can that half interest be taken from her on the assumption that she knew at that time what he was likely to do with the car?
Stefan B. Herpel: --I would think it can be taken.
David H. Souter: What should she have done? She had no role in the purchase of the car, and she had no role in the transfer of a 50-percent interest to her.
Stefan B. Herpel: Well, if she had--
Antonin Scalia: Easy come, easy go is your answer to that one, I think, isn't it? [Laughter]
Stefan B. Herpel: --It could well be, Justice Scalia. I think that--
Ruth Bader Ginsburg: You answered the question. You said, this vehicle was purchased for $600, so that the... what we're talking about, you have conceded she doesn't get the car, the State can take the car, so as a matter of constitutional right, your argument is, she's entitled to half of the value. Well, if she bought it... the total price was $600, and they had it even for a day, then the value is less than $600, isn't it?
Stefan B. Herpel: --Well, I guess it depends on how good a bargain they struck initially, Your Honor, but certainly that $600 is evidence of its value. I don't know that it's conclusive evidence, that perhaps--
Ruth Bader Ginsburg: So when you said at least $600, or at least $300, that means you're assuming they made a good... a very good bargain.
Stefan B. Herpel: --Well, I guess what I was referring to there, Your Honor, is I think in a tenancy in common situation, which I analogize this to, there's a presumption--
Ruth Bader Ginsburg: Why don't you say joint tenancy? Why do you pick the phrase, tenancy in common?
Stefan B. Herpel: --Because I don't believe there are rights of survivorship that attach under the Michigan automobile registration statute.
Anthony M. Kennedy: Suppose that a State had a statute which said that any registered owner of an automobile is absolutely liable for damages that the automobile does in a collision, and the husband gets in a collision, is the wife subject to liability consistently with the Constitution?
Stefan B. Herpel: Well, I think the Court has taken for granted the constitutionality of the co-called civil liability statutes for automobile owners.
Anthony M. Kennedy: Why should this case be different?
Stefan B. Herpel: It's different in two critical respects, Justice Kennedy. First, such statutes arise in the tort system, and are designed not to punish but simply to shift losses so as to facilitate recoveries, tort recoveries by plaintiffs to compensate for injury. Second, and perhaps most important, generally speaking, the State would not be the plaintiff in such an action, and the full machinery of the State with its potential for oppression is not arrayed against the individual.
Anthony M. Kennedy: Well, the State's the one that passed the statute. There's clearly State action in my hypothetical. Isn't the liability that the wife is subject to in my hypothetical much greater, potentially, than the liability here? The liability here is limited to the amount of her interest in the automobile.
Stefan B. Herpel: The liability is greater, Your Honor, and there is State action, the kind recognized in Shelley v. Kraemer and New York Times v. Sullivan, but I think that that is really a... this type of State action is quite a bit different. I mean, a civil law... providing a forum in the way of a civil lawsuit, providing a forum for private parties to--
Anthony M. Kennedy: We're asking about the validity of the statute. There's no... don't... I wouldn't be deterred by the State action. You just have to assume that there is a constitutional defense against strict liability if there is an overreaching on the part of the State by enacting the statute. You seem to assume that the statute that I gave you was quite proper, and I want to know what the difference is between the two cases.
Stefan B. Herpel: --Well, again, I'd emphasize, Your Honor, that that statute does not impose punishment, and more importantly--
Anthony M. Kennedy: Ah, so it's punishment.
Stefan B. Herpel: --And the State is not benefiting in a pecuniary sense. The full power and machinery of the State is not being arrayed against an individual. Now, in the vicarious liability--
Anthony M. Kennedy: It's not being arrayed against the individual at least in the early forms of the common law, it's being arrayed against the thing, the car.
Stefan B. Herpel: --That is correct, Your Honor, and I think the Court... the Court took an opportunity in Austin two terms ago to begin to decrease reliance on the so-called guilty property fiction that is associated with that, and I think the Court should continue to deemphasize reliance on that antiquated notion.
Anthony M. Kennedy: In the admiralty area as well as in the automobile area?
Stefan B. Herpel: No, Justice Kennedy, not necessarily. I think classic in rem forfeiture, as indicated in the brief, arose in the admiralty and customs area, and it arose because of a difficulty in obtaining in personam jurisdiction over, say, owners of vessels. In order for the Government to satisfy claims against vessel owners--
Antonin Scalia: It could hold it until the claim was satisfied, couldn't it, and then redeliver the ship to the person who... right?
Stefan B. Herpel: --Well--
Antonin Scalia: But it didn't do that. You couldn't redeem the ship. It seized the ship. It was gone.
Stefan B. Herpel: --If the owner was a... was not a United States national, I don't know that that would be a practicable--
Ruth Bader Ginsburg: Wasn't there a very ancient idea that the thing was indeed the wrong-doer? I think you acknowledge that in your brief.
Stefan B. Herpel: --I'm sorry--
Ruth Bader Ginsburg: The thing here is declared... the car is declared a public nuisance.
Stefan B. Herpel: --I'm sorry, I didn't hear your question.
Ruth Bader Ginsburg: Isn't there... you are saying the thing was only security for the claim because you couldn't get personal jurisdiction over the individual, but there was an ancient notion that the thing itself is the wrongdoer. As Michigan calls it here the thing, the car, is a public nuisance.
Stefan B. Herpel: Well, that's the guilty property fiction.
Antonin Scalia: The deodand.
Stefan B. Herpel: Yes, the idea that an inanimate object can... you can ascribe guilt to an inanimate object, but I think that--
Sandra Day O'Connor: And you say that notion is no longer valid at all?
Stefan B. Herpel: --Well, I think it's a... it is a... it's a rather obsolete notion. It's one that is... it's a convenient rationale for use of the civil forfeiture power, and I suggested that--
Antonin Scalia: It used to be due process but is no longer, is that it?
Stefan B. Herpel: --Your Honor, I think that--
John Paul Stevens: Well, didn't we say in Austin that never took hold in the United States? That was an English fiction.
Stefan B. Herpel: --The deodand?
John Paul Stevens: Yes.
Stefan B. Herpel: Yes. Yes, we did say that about the deodand. In fact, we... I guess we... what the Court said in Austin was that the deodand, which actually was rejected by the English parliament, I believe, by an act in 1846, did not take hold here, and what instead, this... the practice here has really derived from the English navigation statutes, and once again the law review literature, the historical literature suggests that those English navigation acts were based on the difficulty in obtaining in personam jurisdiction over owners, the... and cargo and in some cases ships were seized to satisfy claims arising out of customs violations.
Antonin Scalia: Does your-- --That would be a good argument in every case except one involving a car. Don't you have the same problem with a car?
Stefan B. Herpel: I don't think so, Justice Scalia.
Antonin Scalia: Well, let's assume you have a negligent owner who negligently entrusted it, as you're willing to acknowledge would render him properly punishable, why can't the State say, I'm not going to go running down where the owner is, I'm going to grab the car. He can come back and make his argument that he wasn't negligent, but meanwhile, you know, I think he's negligent. I'm taking his car.
Stefan B. Herpel: Well, the... Your Honor--
Antonin Scalia: It's just like a ship.
Stefan B. Herpel: --the State has a... the automobile's registration and titling of automobiles is heavily regulated. We actually use paper title in... I believe in every State for car ownership.
Antonin Scalia: This could have been an out-of-State car, and why should Michigan have to go running to some other... so we're just going to say, if there's a crime committed in a car, we think cars are like ships in that regard. We're just going to grab the car. We'll sort it all out later.
Stefan B. Herpel: Your Honor, I don't accept the analogy because I... it seems to me that the... there are other remedies available to the State. In fact, in this case the State pursued a separate criminal action against John Bennis.
Ruth Bader Ginsburg: How does this relate to the many cases where the vehicle that's carrying the contraband is taken? Now, the Federal Government is heavily into that business, too. Does your argument mean that every time a car is found loaded with drugs that if there is a co-owner, then the co-owner has to be compensated for the confiscation of the vehicle that carries the contraband... boat, car?
Stefan B. Herpel: If the assumption of your hypothetical is that the co-owner neither knew nor should have known of the illegal use--
Ruth Bader Ginsburg: We're not dealing with this unusual Michigan statute making cars public nuisances. Your argument would cover the waterfront of all the confiscation of vehicles carrying contraband, is that not right?
Stefan B. Herpel: --Well, or used for some illegal purpose. I want to emphasize, however, that it... my standard does not address the forfeitability of proceeds realized from illegal activity.
Sandra Day O'Connor: How is your theory consistent with what this Court held in Calero-Toledo, the leasing of a yacht and the people who leased it had marijuana on board, and the lessor didn't know that. In fact, it even included provisions in the lease agreement that that wouldn't be done, and yet the forfeiture was upheld. Now, how would your theory play out there?
Stefan B. Herpel: Justice O'Connor, the Court in Calero-Toledo did reach the facial challenge. It rejected the facial challenge to the Puerto Rican statute, but the Court never decided whether the yacht owner did or did not satisfy the negligence prong of the dicta, and you're asking me... I don't know that there was enough of a factual development in that case to really answer your question. The--
Sandra Day O'Connor: Well, certainly the Court upheld the seizure against a... the forfeiture against a takings claim by the owner.
Stefan B. Herpel: --They did, but there is a bit of an ambiguity in the Court's resolution of the as-applied challenge, assuming that there was an as-applied challenge--
Sandra Day O'Connor: Well, in any event, under your theory it would not be possible to uphold a forfeiture in a Calero-Toledo situation.
Stefan B. Herpel: --Well, if the facts were that at the time of entrustment the yacht leasing company--
Sandra Day O'Connor: Didn't know--
Stefan B. Herpel: --neither knew nor should have known--
Sandra Day O'Connor: --the people leasing it were going to have marijuana on board.
Stefan B. Herpel: --Yes. I think it was Justice Douglas' dissent in that case pointed out that it was two marijuana cigarettes.
William H. Rehnquist: Yes, and it was a dissent.
Stefan B. Herpel: That's correct. [Laughter]
Stephen G. Breyer: There was also a statement which I had here that they made a point of the fact that no allegation has been made or proof offered that the owner did all that it reasonably could to have... avoid having its property put to an unlawful use, and then there was a suggestion in dicta that had that been done, that they might have reached a contrary result. Am I reading it correctly?
Stefan B. Herpel: Yes, Your Honor. I think that there's the sense in which there was a procedural default in that case, because they--
Ruth Bader Ginsburg: Why was... why is there a suggestion that a contrary result would be reached, because earlier in that case, hadn't it been said we've never found that there was any kind of fault requirement, that there was any kind of innocent owner, innocent objection. Didn't... wasn't there first that general statement?
Stefan B. Herpel: --Well, the Court did a rather lengthy historical analysis of deodands, but I think, Your Honor, what's critical here is that the Court in Austin did its own historical analysis and concluded that forfeiture has traditionally served, at least in part, as punishment for personal culpability, and I think that that history--
Antonin Scalia: Well, do you-- --Does it follow from your argument that there cannot be any criminal punishment without at least negligence? You could have no... it's absolute liability, absolute criminal liability--
Stefan B. Herpel: --In any context?
Antonin Scalia: --saying, if your corporation does such a thing, you will be fined so much money, period, up to you to make sure it doesn't, we don't care how careful you've been, absolute liability. Is... doesn't that follow from your argument?
Stefan B. Herpel: Limited to the forfeiture context, or outside?
Antonin Scalia: What's the difference whether it's a forfeiture or a fine?
Stefan B. Herpel: Well--
Antonin Scalia: I mean, it seems to me the essence of your argument is, you shouldn't punish somebody who hasn't been... who hasn't been blameworthy. If you cannot punish them by a forfeiture, why can you punish them by a fine?
Stefan B. Herpel: --Well, it's really a species of vicarious punitive liability that we're talking about here, and not just strict liability, Justice Scalia, and vicarious liability, punitive liability, vicarious criminal liability, it is... has very narrow... occupies a very narrow niche in our legal tradition. Now, in the corporate area--
Anthony M. Kennedy: It's for highly regulated industries, and aren't automobiles one of the most highly regulated forms of instrumentalities in our whole system?
Stefan B. Herpel: --Well, in the corporate area, I think in a case called New York Central the Court did recognize that a corporation, which after all can only speak through its agents, it can only speak and think through its agents, can be liable, and some have regarded that as a form of vicarious criminal liability, but vicarious criminal liability outside the corporate context is exceedingly rare in our jurisprudence. It--
Sandra Day O'Connor: Well, do we look at this as criminal liability here? Is that how we should analyze it?
Stefan B. Herpel: --I think we have to view it as punitive the sanction as punitive. The Austin decision makes that absolutely clear. The sanction of forfeiture is punitive, and earlier decisions of this Court in One 1958 Plymouth Sedan, which held that the Fourth Amendment exclusionary rule applied to civil forfeiture proceedings, and United States Coin & Currency, which held that the Fifth Amendment privilege against self-incrimination applies to forfeiture, have treated forfeiture as criminal, or quasicriminal, so I think--
Sandra Day O'Connor: Is it at least possible that in the context of joint ownership of an automobile by a husband and wife, that we should presume knowledge by each as to the use by the other--
Stefan B. Herpel: --I don't think we should--
Sandra Day O'Connor: --and then put any burden on the innocent spouse to prove otherwise?
Stefan B. Herpel: --Your Honor, the... if this is a presumptive taking under the Takings Clause, as we contend it is, then as a matter of straightforward constitutional analysis the burden of proving any exception to the requirement to pay compensation would have to lie with the State.
David H. Souter: Well-- --As I understand it, you wouldn't... you don't agree that mere knowledge would be enough anyway--
Stefan B. Herpel: I'm sorry--
David H. Souter: --do you? You don't agree that mere knowledge by one spouse that the other was going to use or was using the vehicle in a way here that would constitute a nuisance would be sufficient fault.
Stefan B. Herpel: --Oh, I think at the time of entrustment--
David H. Souter: You're saying it has to be knowledge at the time they bought the car.
Stefan B. Herpel: --Or if it's a case of solely owned property simply being loaned, that would be the--
David H. Souter: Oh, but that's case in which there's a right of control. The problem comes because there's no right of control here.
Stefan B. Herpel: --Well, that's right, Your Honor.
David H. Souter: I presume there is none--
Stefan B. Herpel: Certainly--
David H. Souter: --under Michigan law.
Stefan B. Herpel: --Certainly, and that's why at the time of entrustment I... I mean, at the time of the creation of the joint property interest one can say there's... there may an element of control over whether you had--
Ruth Bader Ginsburg: Would it satisfy... would it satisfy your position if the State law were... when there's this joint ownership situation the Court is going to make the wrong-doing owner pay the other one? It's not going to come out of the State's pocket, not out of the people's pocket, but if she wants to bring a claim against him, he's going to have to pay. How about that? That would take care of her need, compensating her.
Stefan B. Herpel: --You're postulating that she would have a remedy in a court of law against--
Ruth Bader Ginsburg: The State says, she ought to be compensated. The car was a nuisance. He ought to compensate her.
Stefan B. Herpel: --Well, Your Honor, it seems to me that it's hardly reasonable, after Tina Bennis, an innocent owner, has been punished by having her property interest confiscated--
Ruth Bader Ginsburg: Then the wrong-doer--
Stefan B. Herpel: --to then tell her that--
Ruth Bader Ginsburg: --The state says--
Stefan B. Herpel: --her remedy is to go into a court of law and sue her husband. At that point, you're in the realm of divorce, but when you're talking about a wife bringing an action--
William H. Rehnquist: --If not before, yes. [Laughter]
Stefan B. Herpel: --against a... excuse me?
Speaker: So it would be all right-- --I said, if not before. [Laughter] I would have thought she'd rather sue her husband than sue Michigan. I don't-- Thank you, Mr. Herpel.
Stefan B. Herpel: Thank you.
William H. Rehnquist: Mr. Roberts, we'll hear from you.
Larry L. Roberts: Mr. Chief Justice, and may it please the Court: I would, if you would allow me, like to go through some of the questions that have been asked, because I think those questions, at least in my opinion, encompass the position that the State of Michigan has brought in this case.
Sandra Day O'Connor: Could you address the nature of the ownership of this vehicle, if you can enlighten us?
Larry L. Roberts: The record, Justice O'Connor, does not indicate, as Mr. Herpel indicated to the Court, exactly what this is, but in my understanding of the law of Michigan, as we can see, I think, from the record presented, when there's a vehicle co-owned by a husband and wife, in order to dispose of that, for example, at sale, private sale, both individuals have to sign the title to do that.
Sandra Day O'Connor: Could the creditors of one of the spouses reach the entire vehicle?
Larry L. Roberts: Yes, I believe they could under Michigan law, in this situation, yes.
Sandra Day O'Connor: A creditor could take the whole vehicle.
Larry L. Roberts: That's correct, because of the liability of ownership of the vehicle in the State of Michigan under our laws and the way they've been interpreted puts upon each owner liability for the use or negligence or misuse of that vehicle.
Sandra Day O'Connor: Do you have a citation for us for that?
Larry L. Roberts: I have a citation to the statute that was referred to by, I believe it was Justice Scalia. MCL 257.401, and that's mentioned in our brief. That is the liability statute for Michigan motor vehicles, whereby if an individual is entrusted with your vehicle and commits an injury upon another, you as an owner or a co-owner, innocent or otherwise, may be held liable for any of the injuries or damages--
Anthony M. Kennedy: What about-- --Does it indicate that-- --What about an ordinary creditor? I just have a judgment against the husband for something completely unrelated to the automobile. Can I levy on the wife's interest in the automobile under Michigan law?
Larry L. Roberts: --They can levy on the automobile, Justice Kennedy, but I'm not certain how the proceedings would apply as to her interest, but what we're concerned with here--
Anthony M. Kennedy: I think it would be very strange if you could levy on the wife's interest, and I thought that was the thrust of Justice O'Connor's question.
Larry L. Roberts: --I'm... that... I'm not certain as to what the answer is to that, but we're getting, I think, beyond the facts that we have presented here, where we're concerned with the police power of the State of Michigan in a nuisance context in regards to Mrs. Bennis'--
John Paul Stevens: Am I correct in assuming, Mr. Roberts, that your position on the constitutional issue would be exactly the same if she was the sole owner of the vehicle?
Larry L. Roberts: --Yes, it would.
John Paul Stevens: So we really don't need to worry about this half-ownership business, do we, in your view of the case?
Larry L. Roberts: I... I would not say that we would not have to worry about it. I think we're concerned with it because we're here today. I think we should be concerned, because we have to reaffirm, I believe, the police powers of the State in this type of nuisance--
David H. Souter: Yes, but you say they're the same even if she owned the car.
Larry L. Roberts: --That's correct.
David H. Souter: So your position doesn't rest on the right to control the car.
Larry L. Roberts: Control--
David H. Souter: I mean, if she were the sole owner, presumably she has a right to control its use.
Larry L. Roberts: --That's correct.
David H. Souter: If she is simply a common owner as against the other common owner, I assume she does not have any right to control.
Larry L. Roberts: That's correct.
Anthony M. Kennedy: So control is irrelevant on your theory.
Larry L. Roberts: Control in... that's true, as Justice Stevens and Justice--
Anthony M. Kennedy: So does your theory... if there's no right to control as an element of your theory, is your theory basically the kind of antique theory that this is the guilty object?
Larry L. Roberts: --That may... that is part of the theory. The object--
David H. Souter: What else?
Larry L. Roberts: --Well, the object is the method whereby the nuisance conduct was committed. The statute, the police power statute, the nuisance or abatement law aims at the use of an item, be it a building, a boat, an aircraft, a place... even place is named--
David H. Souter: Well, that's what makes it a nuisance.
Larry L. Roberts: --And as an individual committing certain types of conduct, which is the nuisance, in that--
David H. Souter: Right, but you're saying once the object has been used to create the nuisance, your right to require... your right to go after it on a forfeiture proceeding rests, in essence, on the theory that it is a guilty object in the old common law sense, the deodand sense.
Larry L. Roberts: --A guilty object in the sense that the conduct that the law is aimed at abating was committed with the use of that, be it in or... the vehicle perhaps takes, taking an individual--
Ruth Bader Ginsburg: If it's a stolen vehicle... suppose it's a stolen vehicle?
Larry L. Roberts: --Then that would be outside the scope of this, and that was mentioned in the Michigan supreme court opinion in this matter.
Sandra Day O'Connor: How about a car rental... a car rental?
Larry L. Roberts: Again, then we would get to the point of control.
Sandra Day O'Connor: The rental car, and--
Larry L. Roberts: Car rental.
Sandra Day O'Connor: --Under your theory the State would take the car if the person renting the car committed the unlawful act in the car.
Larry L. Roberts: The State would take the car, but would not be able to forfeit the car--
Sandra Day O'Connor: Why not?
Larry L. Roberts: --The distinction is made at the stage whereby it's determined that the car is a rental car that the rental company had no control over, nor could they have been party to--
Speaker: But you just told me that control is irrelevant to your theory. You said that didn't matter.
Larry L. Roberts: --But in this situation, I'm talking about an application of the law to a situation that is outside the scope of a husband or a wife being a co-owner--
David H. Souter: No, but I want to know what the theory... and this is... Justice O'Connor was... what is the theory of the State's right to forfeit, and a moment ago, if I understood you correctly, you said it has nothing to do with the question whether the so-called innocent claimant has a right to control or not, and now you are saying, I think, that it does depend on the right to control, because the answer is different in the case of the stolen car, and the answer is different in the case of the rental car. Is control relevant, or isn't it?
Larry L. Roberts: --Control is relevant only to the extent that the statute we have to think is aimed at the strict liability of those who own a motor vehicle, so ownership and control are relevant in that sense, and--
William H. Rehnquist: Well, can-- --A leasing company owns the vehicles that it leases.
Larry L. Roberts: --That's correct, but they have no control over its use. Once it goes away, there's no way that they can find out or--
William H. Rehnquist: I think Justice Souter's point is that the wife has no control over the use, either. She can't prevent her husband from using it if it's commonly owned.
Larry L. Roberts: --That's correct.
David H. Souter: Then why shouldn't the wife be in exactly the same position as the car renter, or the person from whom the car was stolen?
Larry L. Roberts: Because she could... although perhaps far-fetched... indicate to the other person using the car... perhaps she loaned the car to an individual. She could say--
David H. Souter: She didn't lend it to her husband. He owns half of it.
Larry L. Roberts: --I understand.
David H. Souter: He has the right to drive it.
Larry L. Roberts: I understand.
David H. Souter: She has... as I understand it, she has no right of control. Why, therefore, isn't she in the same position as the renter or the victim of the theft?
Larry L. Roberts: Because she doesn't have the control over the car that they do in the sense--
Antonin Scalia: That doesn't make any sense, Mr. Roberts. Has your State supreme court held that, that Hertz is off the hook?
Larry L. Roberts: --They've indicated that in the opinion.
Antonin Scalia: They have?
Larry L. Roberts: Yes.
Ruth Bader Ginsburg: Where?
Larry L. Roberts: I don't have the exact page in there. I'm indicating that I think the interpretation of the opinion would be that that's exactly the situation.
John Paul Stevens: Can you point to the language-- --But again, I want to be sure your position is the same. If she owned the car 100 percent--
Larry L. Roberts: Correct.
John Paul Stevens: --You could still forfeit it?
Larry L. Roberts: It could be liable--
Antonin Scalia: You would say there's a distinction between her as a 100-percent owner and Hertz as a 100-percent owner.
Larry L. Roberts: --Right.
Antonin Scalia: Could you give us the citation of the Hertz case later? I mean, just submit it to the Court. I'd like to know what that is.
Larry L. Roberts: Certainly, Justice.
John Paul Stevens: Well, is that a passage in the opinion in this case, or another case?
Larry L. Roberts: No. I was indicating that I feel from reading the supreme court opinion you can deduce that that's what they--
John Paul Stevens: In this case. In this case?
Larry L. Roberts: --Yes.
John Paul Stevens: Yes, that's what I thought you were saying.
Larry L. Roberts: But I'm not... I... they did not specifically--
John Paul Stevens: Right.
Larry L. Roberts: --go through all the possible situations, because they were saying this is a police power matter.
John Paul Stevens: But these questions we're raising go to questions of the application of Michigan law rather than the ultimate constitutional issue, and I'm curious to know whether you think there's a difference as a matter of constitutional law between an owner such as a wife giving the car to her husband and a theft of the car. In either event, the person doesn't have control of what happened in the car. As a matter of constitutional law, could a stolen car be forfeited if the police catch someone with marijuana in the car, or engaged in an act of prostitution?
Larry L. Roberts: It would be liable to come into the forfeiture proceedings. I don't believe it would be forfeited, no, because of the--
John Paul Stevens: I'm not asking about what Michigan would do. I'm asking about your constitutional theory. We have a constitutional question to decide. Do you think, as a matter of constitutional law, Michigan would have the right to forfeit stolen vehicles when they are found to be used in an illicit manner?
Larry L. Roberts: --I think that that's possible. I don't have that... I did not address that in the situation we have here.
John Paul Stevens: But what do you think the answer is?
Larry L. Roberts: I don't know. I don't know the answer to that.
Stephen G. Breyer: Thank you. Why should a person who's totally innocent, who has done whatever they could do to stop the crime, who has no knowledge of it, et cetera, be punished by having to give up their property?
Larry L. Roberts: There's a case... Chicago, Burlington, & Quincy was mentioned in our brief, and in that case, as the Court is aware, there is an absolute duty on the railroad carrier to comply with the Safety Appliances Act, and in that case, as I recall reading, the railroad carrier put forth that he had done... he wasn't aware that the cars were out of repair, he'd done everything reasonable to comply, and yet he was held responsible for the violation--
Stephen G. Breyer: Yes, I agree that there are cases. That was why I put the question the way I did. There are pirates, there are smugglers, there are bootleggers, and interestingly enough, there are corporate shareholders that each of these may be special situations. So I know there are cases, so that's why maybe the corporates are special, given that they are people, persons, et cetera, but why... is there any reason why a person who is totally innocent should be punished for a criminal offense by having to give up the property that he or she owns?
Larry L. Roberts: --Your--
Stephen G. Breyer: I know there are those cases. The cases are a question of... is that the only reason, that when there were 18th Century pirates, people were really worried about pirates, for good cause, and they had to impose upon the owners of the ships enormous affirmative obligations to try to stop pirates. We don't have as many pirates now, at least. [Laughter] So I mean, is there any reason, other than these historical facts--
Larry L. Roberts: --Well--
Stephen G. Breyer: --which have changed to a degree, or are there some good reasons?
Larry L. Roberts: --If I could, I'd address some of the assumptions in the hypothet, that there is a punishment, and there was punishment for a criminal offense. Mrs. Bennis... first of all, we maintain if there was punishment, it was incidental to the regulatory aim of this police power, and the criminal offense was committed by her husband, not Mrs. Bennis. She is subject to the civil liability of this civil law when it's applied properly with due process simply because she's an owner of the vehicle and gave permission or did not give permission to use the vehicle. That's why in this situation an individual can be held liable for the acts of another in the use of the vehicle as long as all the constitutional protections have been given them, and here we had a court of equity which by the record shows that she was afforded all those protections.
Sandra Day O'Connor: Is one co-owner-- --Is it a civil penalty that's being imposed?
Larry L. Roberts: We maintain it is, Justice O'Connor, yes.
Sandra Day O'Connor: A civil penalty.
Larry L. Roberts: Civil--
Sandra Day O'Connor: It's not a public nuisance abatement.
Larry L. Roberts: --It is a public nuisance abatement, but the penalty is--
Sandra Day O'Connor: Is the car a public nuisance?
Larry L. Roberts: --The car is the vehicle that was used to perpetuate the condition.
Sandra Day O'Connor: Is the car the public nuisance?
Larry L. Roberts: Under the language of the statute and the way it's been interpreted, yes, because buildings have been found--
Sandra Day O'Connor: But that's a very strange interpretation of the meaning of public nuisance. Normally you think of it as an ongoing something that constitutes the nuisance.
Larry L. Roberts: --In this situation, as the record reveals and the transcript shows, there were several witnesses that testified that the ongoing situation of nuisance, the prostitution activities in this neighborhood were such that when this individual utilized this vehicle to commit further acts of prostitution or lewdness or assignation, he and the vehicle were committing the nuisance conduct. The vehicle was the container, if you want to... if I could use that word, I did not use it in the brief, and the conduct was committed by Mr. Bennis and the prostitute, and we have a record of the ongoing conduct, so that we do have that. There's not an indication that this vehicle was used more than one--
Sandra Day O'Connor: To impose a civil penalty on someone, must there be some fault on the part of the person against whom the penalty is imposed, or can a civil penalty be imposed against a totally innocent person?
Larry L. Roberts: --We are maintaining in this situation, with Michigan's nuisance abatement law, a civil penalty, if you wish to call it a penalty, and it is in that sense--
Sandra Day O'Connor: But you said it was. I'm just using your words.
Larry L. Roberts: --It is. It is in that sense, because the condition, the use of the vehicle to perpetuate the condition--
Sandra Day O'Connor: And it is possible to impose a civil penalty on someone without any fault of the person--
Larry L. Roberts: --Because of the applicable--
Stephen G. Breyer: --is your position?
Larry L. Roberts: --Yes.
Stephen G. Breyer: Okay.
Larry L. Roberts: The strict liability of the law interpretation.
Stephen G. Breyer: Is this... that's a good... I mean, I'm really uncertain. Is this civil or criminal? I--
Larry L. Roberts: Civil.
Stephen G. Breyer: --Well, they use the word guilty. The statute uses the word guilty. They say if you do this, if you use a car that you've leased, even, the car is a nuisance and you are guilty of a nuisance.
Larry L. Roberts: That's correct.
Stephen G. Breyer: And so, and this comes up in a criminal proceeding. How do we answer this question? I mean, I think it may differ whether it's a criminal punishment or whether it's a civil... but they... it's in a criminal proceeding. If the... would the person who ran such a car have a criminal record--
Larry L. Roberts: This proceeding, of course--
Stephen G. Breyer: --who was guilty of a nuisance?
Larry L. Roberts: --This proceeding... no. This proceeding was a civil proceeding, so that the final order and judgment controls. The court speaks of its order. The order here--
Ruth Bader Ginsburg: Did the judge in this case say that... at least in the first instance, the judge in the court of first instance, that he thought that he had some kind of equitable power? He said, well, there might be situations bad enough that I could do something, but this one isn't so bad because they have a second car. That doesn't sound very criminalist.
Larry L. Roberts: --I'm sorry, what was your last word, Justice Ginsburg?
Ruth Bader Ginsburg: The judge in this case, didn't the judge say--
Larry L. Roberts: He did.
Ruth Bader Ginsburg: --if things were really terrible, I would make some adjustment here, but they're not so terrible for Tina Bennis because they've got a second car.
Larry L. Roberts: Correct, a 1978 Oldsmobile.
Ruth Bader Ginsburg: So the judge at least thought that he had some equitable adjustment authority, which doesn't seem to fit into the criminal mode.
Larry L. Roberts: There was more to what he also said when he made that statement, and that was that in this particular case, because part of the statute allows for deduction of costs and expenses, after doing so for Tina Bennis' [dollar] 300 interest in the vehicle, there would be practically nothing left, and then he looked to these other equitable considerations and said, in this situation I am treating it thusly. Other sicuations, as the record shows, he indicated--
Ruth Bader Ginsburg: I think I have... just suppose we have a nuisance on land and an absentee owner who doesn't know anything about it, and that nuisance has to be abated, does the... under Michigan law, does the innocent owner who didn't know of the existence, and the other one did, have a right against the co-owner for compensation?
Larry L. Roberts: --If it were a building at issue in the case?
Ruth Bader Ginsburg: Yes.
Larry L. Roberts: Yes, it would.
Ruth Bader Ginsburg: Does the innocence of that co-owner stop the State from abating the nuisance?
Larry L. Roberts: We could seek to abate the nuisance, yes. It does not stop us.
John Paul Stevens: May I ask another question? This just doesn't involve vehicles, it could involve houses, couldn't it, too?
Larry L. Roberts: The law encompasses buildings, motor vehicles, aircraft--
John Paul Stevens: If a family found out that one of their children had smoked marijuana at home, could they forfeit the house?
Larry L. Roberts: --If the family found out?
John Paul Stevens: If the parents... I mean, say the State found out that a teenager in a house had smoked marijuana in the house, could they--
Larry L. Roberts: Could we? No. No, and the Michigan criminal laws would first be applied, I think, to that situation, and they're such that the nuisance abatement laws and the forfeiture law--
John Paul Stevens: --That would not be a nuisance, and the home would not be forfeitable?
Larry L. Roberts: --There was a controlled substances amendment put into this nuisance abatement law in 1988, but no, I think that would come into the prosecutorial discretion area.
Antonin Scalia: Well, I-- --Oh, prosecutorial discretion. Oh. --if I understand it, even in this case the Court said that this car, if the same act had been performed in some other section where it was not a common problem, it would not have been a nuisance.
Larry L. Roberts: He indicated--
Antonin Scalia: It isn't just that the performance of some unlawful act renders a thing a nuisance.
Larry L. Roberts: --No.
Antonin Scalia: They really do mean a nuisance, don't they? But isn't the constitutional issue the same? Couldn't they do it just on one case at a time?
Larry L. Roberts: We maintain in the Michigan supreme court they could, but they ruled that we needed, as Justice O'Connor pointed out, a continuing condition.
John Paul Stevens: And in terms of the Federal Constitution, if Michigan can do this, why couldn't it forfeit a house in which there was... they found out that marijuana had been smoked on one occasion?
Larry L. Roberts: The mobile home and the body shop in Austin, they sought to do that, did they not, and there was just--
John Paul Stevens: But why does it have to be just a mobile home? Why not a mansion?
Larry L. Roberts: --It could be.
John Paul Stevens: It could be.
Larry L. Roberts: Under this law, that would not happen.
David H. Souter: Why not? Only because there's a specific exception saying... built into the Michigan statute saying this is not forfeitable for one puff.
Larry L. Roberts: We read it not as that way, but the Michigan supreme court--
David H. Souter: In any case, there's a bar in Michigan law.
Larry L. Roberts: --Right.
David H. Souter: But there's no constitutional bar.
Larry L. Roberts: Not that I'm aware of at this point, no.
John Paul Stevens: And constitutionally it would be the same case if instead of $300 it was a $40,000 car, wouldn't it?
Larry L. Roberts: That's correct. The value is not it, it's the use that we're aiming at, and as with Pearson Yacht, that was two marijuana cigarettes.
Antonin Scalia: Well, I don't have to agree with that to agree with the rest of your position, I hope, because I... you know, there was a whole... in the old law of deodands there was a whole intricate theory of when, indeed, the instrumentality was being used to commit the crime or not, and I don't have to think that the whole house is being used to commit the crime of one puff of a marijuana cigarette--
Larry L. Roberts: No.
Antonin Scalia: --do I?
Larry L. Roberts: But under the Michigan law, we would not be able to proceed that way. Under Federal law, I think you might be able to.
Stephen G. Breyer: And the reason again... I don't want to come... look, I got a little distracted, because what's going on is that whatever you call it, the person is giving up a lot of property who's totally innocent, and the reason they're giving it up is because it was an instrumentality of a crime, right? I mean, that's basically the reason.
Larry L. Roberts: Instrumentality--
Stephen G. Breyer: And they are. Yes, all right.
Larry L. Roberts: --Whether--
Stephen G. Breyer: It was... they're giving it up because a person used it to commit what was a crime under this statute, as I read it. Is there some... what's the reason why the innocent person is required to give up the property? What policy does it serve? What purpose does it serve? What's the theory of why you are requiring them to give up this piece of property that is theirs when they themselves are innocent and have done everything possible to prevent its use as an instrumentality?
Larry L. Roberts: --Well, that's not a record we have exactly here, but I understand--
Stephen G. Breyer: I know that, but I'm trying to figure out the... I'm trying to get my own thinking straight on other cases as well as this one that relate--
Larry L. Roberts: --The powers of the State allow them to go after all matters which encompass public safety, health, and morals. Nuisance conditions clearly fall within that, and if there is, in the State, and has been sustained by cases, laws that allow strict liability for ownership of vehicles and the vehicles utilized in nuisance conduct, we can proceed the way we did as long as the constitutional protections--
Antonin Scalia: --It causes these people to be very careful whom they give their car to, or loan their car to, or whom they go into co-ownership with, I assume. Doesn't it have that functional purpose?
Larry L. Roberts: --I think it should, yes.
William H. Rehnquist: Thank you.
Larry L. Roberts: Thank you.
William H. Rehnquist: Thank you, Mr. Roberts. Mr. Seamon, we'll hear from you.
Richard H. Seamon: Mr. Chief Justice, and may it please the Court: I'd like to begin by discussing some of the issues that I believe complicate what's already a difficult constitutional question. The first issue has to do with precisely what rights co-owners have to control the property's use by other co-owners. That is not clear, and in our view, the issue of control is highly relevant under the all reasonable steps standard that we propose.
David H. Souter: So if the... going back to the argument that counsel on the other side made, if the co-owner did not know at the time of acquiring ownership that the property was likely to be used by the other co-owner for a criminal purpose, and subsequently learns it, there would be no right of control at that point. There would be no fault, and it would not be forfeitable. The co-owner's interest, the innocent co-owner's interest would not be forfeitable, on your theory.
Richard H. Seamon: That's correct, at that point in time, although we don't agree with the petitioner's suggestion of a negligent entrustment standard, because we think that it's unrealistic to focus simply on the point in time at which the property is transferred from one owner to another or the time at which the co-owner's property interest arises.
Antonin Scalia: Mr. Seamon, where... I mean, as an original matter, if I were writing a statute I might well buy your, you know, all reasonable steps standard. It seems like a good idea. But we're not writing a statute. Where do you get it from? I mean, where do you find it in our historical tradition, or is it just that, you know, we should say, well, it seems like a good idea, it must be constitutional law. [Laughter]
Richard H. Seamon: The precise formulation--
Antonin Scalia: Do you find it somewhere in our cases?
Richard H. Seamon: --The precise formulation comes from the suggestion in Calero-Toledo. The--
Antonin Scalia: From a dictum in... and that is enough to adopt it?
Richard H. Seamon: --No, it's not enough, and we don't believe that that's all that supports the all reasonable steps standard. Both... the history supports the broad principle, in fact, that limits the Government's ability to punish essentially blameless people by taking away their property.
Antonin Scalia: What history does that, when we've certainly done it with respect to vessels.
Richard H. Seamon: That's right, and even as long ago, however, as a case like Peisch v. Ware, Chief Justice Marshall wrote for the Court in 1808 that a property should not be forfeited when the owner of the property lacks the means to prevent the forfeiture. Now, that suggestion of powerlessness to control the events leading to the forfeiture is different from the later formulation in Calero-Toledo, and--
Antonin Scalia: Was he speaking of constitutional law--
Richard H. Seamon: --He was not speaking of--
Antonin Scalia: --or of equitable power to declare the forfeiture?
Richard H. Seamon: --He was speaking in terms of longstanding principles. It's not--
William H. Rehnquist: And in Goldsmith we upheld the forfeiture of a conditional vendor's interest in an automobile because the buyer who's driving it around used it for drugs.
Richard H. Seamon: --That's right, and we see two lines of cases, really, one of which includes Goldsmith, Grant, Van Oster, and Calero-Toledo itself, which recognizes that a property owner cannot avoid the forfeiture of property that's been used illegally merely by showing that she lacked knowledge or even reason to know of the illegal use. By the same token, there is another different line of cases, of which Calero-Toledo is also a part, that recognizes limitations on the Government's ability to punish people. Now, that actually brings--
Antonin Scalia: They do that in dictum, whereas the other cases do it in holding, don't they?
Richard H. Seamon: --That's correct. This Court--
Antonin Scalia: It seems a rather significant distinction.
Richard H. Seamon: --It is a significant distinction. The one exception I would note to that, but it's not a forfeiture case, is the one we cite in our brief, Southwestern Telephone & Telegraph Company v. Danaher, which involved the Court... in which the Court set aside a $6,300 civil penalty against a phone company on the grounds that the phone company had acted reasonably and there was no wrongdoing that justified--
Ruth Bader Ginsburg: Mr. Seamons, one thing I don't understand is how you put together your test with your end result, because it seems to me that in many, many, perhaps most marital situations, a person in Tina Bennis' situation could do everything within her power to do, but the law gives the co-owner the right to use the car whenever and however he wants, so I don't see how the all reasonable steps would work out to the disfavor of someone in Tina Bennis' situation.
Richard H. Seamon: --It may be that--
Ruth Bader Ginsburg: She has no power over him. She could say everything she wants and it's not going to do any good.
Richard H. Seamon: --Our view of the result, I suppose, is in part based on presumptions about how the State law operates in terms of the degree of control that a joint owner can exercise over another owner. Certainly, it would not be reasonable to expect a co-owner to do anything that she didn't have a right to do under the State law. On the other hand, every citizen can take certain measures to prevent illegal activity that comes... that they learn about, including calling the police, and so it's simply not clear--
Ruth Bader Ginsburg: How is a Tina Bennis supposed to make sure that her spouse doesn't use a car this way?
Richard H. Seamon: --It's very difficult to know in the absence of knowing more about how much knowledge or reason to suspect that use she had, which is unclear to us on this record. In our view, all that she showed in the trial court was that she lacked actual knowledge of the illegal use, but she did not show that she lacked a reason to suspect that--
John Paul Stevens: Would it have been a different case, in your view, if she had gotten on the witness stand and said, this all came as a very shocking surprise to me, I had no idea this was going on?
Richard H. Seamon: --Yes.
John Paul Stevens: That would be the difference.
Richard H. Seamon: Yes, but I would emphasize in answering the question that it has a lot to do with the nature of the offense involved here, which is I think another complication. I mean, it is reasonable to expect that a husband who frequents prostitutes will hide that fact from his wife and be able to do that successfully, but that may not necessarily be true if a different offense is involved, such as ongoing drug trafficking, and--
Anthony M. Kennedy: In this case, your office has taken the position we should affirm the judgment of the Michigan court--
Richard H. Seamon: --That's right.
Anthony M. Kennedy: --despite this very troubling question about the wife's knowledge of her husband's activities and her ability to do anything about it.
Richard H. Seamon: That's right. We believe that the record, in fact, is unclear on the question of whether she could have taken any reasonable steps to prevent--
David H. Souter: Let's see where we would go with it. Take the easy case in which she says, yes, I knew he was doing this. There wasn't anything I could do about it. He owns as much of the car as I do. What was she supposed to do? In that... I take it in your view, her interest would be subject to forfeiture on those facts, based on that testimony, is that correct?
Richard H. Seamon: --Our view of the proper disposition of this case is based--
David H. Souter: Well, no, I'm talking about my case, the one in which she takes the stand and says, I knew he was doing it, but I didn't have any right to stop him from using the car, and let's further assume that as a co-owner in Michigan, she didn't.
Richard H. Seamon: --No, I'm sorry, that's not our position. It is our position that even if an owner has knowledge of ongoing unlawful activity with regard to her own property, it still remains... can make out the defense by showing that she took all reasonable steps to prevent it.
David H. Souter: Well, is right to control the touchstone for determining what is reasonable?
Richard H. Seamon: It certainly is one of the foundations. Anything that one doesn't have a right to do--
David H. Souter: Okay. You're not taking the position, say, in the case that I put... the wife says I knew, and so on... you're not taking the position that she was supposed to call the police and say, you better watch out for such-and-such a car, because my husband is engaging in illegal acts in it. You're not taking that position, are you, or are you?
Richard H. Seamon: --No, not exactly. Our position is... it is not our position that if you know, you lose. On the other hand--
David H. Souter: Well, you're not taking the position that she affirmatively had to call the police. Now, you're saying that control is very significant. What else is? What's in the middle between these two extremes?
Richard H. Seamon: --Well, I'd say there are two elements. Besides control, the other element is the extent to which the person knows or has reason to know that her property is being used illegally. I mean, it is true that in--
David H. Souter: But that gets us back to the control issue. She... on my hypothesis, she knows beyond a peradventure of a doubt, but she can't control the car, and you... I think you're saying she is not required to call the police. What else should we look at to determine whether she has taken every reasonable step to preserve her innocence for constitutional purposes?
Richard H. Seamon: --On that point, I... we would expect property owners to notify the police if they know that the property is being--
Anthony M. Kennedy: So it's the position of the Solicitor General's Office that wives should call the police-- --Yes. --when their husbands are using prostitutes?
Richard H. Seamon: --Not in every case, but it is certainly one-- [Laughter] It is certainly one--
Anthony M. Kennedy: Don't let the laughter of clerks who have never even argued a case in a municipal court deter you from your answer.
Richard H. Seamon: --Thank you. One, what's reasonable depends on the circumstances of every case, and it's easier to understand my answer, I think, in the fact situation that comes up all too frequently, I'm sorry to say, in Federal cases where the husband is dealing drugs, using the car or the house to deal the drugs, and the wife has knowledge of that, and in those cases the Federal Government does indeed take the position that the wife is obligated, in order to protect her property interests, in order to be able to assert an innocent owner defense, to notify the police. Now, there are steps short of that that a wife may very well decide to take.
William H. Rehnquist: Thank you, Mr. Seamon. The case is submitted.