High Court Forfeiture Case Has Seed for Due Process Test’s Demise

The US Supreme Court’s May 9 decision limiting the right to a preliminary hearing over forfeiture is disappointing for many, but beyond the specific holding, the case may contain the seeds of a fundamental reshaping of constitutional law. Like some other major revisions of recent years, the change comes from a concurring opinion.

Culley v. Marshall involves the Constitution’s Due Process Clause, which says the government can’t take life, liberty, or property without due process. That statement begs the question: What process is “due”?

For decades, courts have generally answered that question using a framework described by the Supreme Court in 1976 in Mathews v. Eldridge: a balancing of the private interest that will be affected by the government’s action, the risk of erroneous deprivation given the procedures used, as against the probable value of additional procedures, and the government’s interests including the cost and burden of providing additional procedures.

For the particular question in Culley, it was nonetheless debated whether a Mathews analysis was necessary. This is because, a few years after Mathews, the Supreme Court had decided, in United States v. $8,850 in US Currency, that the government can seize property used in a legal violation, without a hearing beforehand, so long as there is a hearing after the seizure to determine the ultimate forfeiture. The question then was simply, how soon must that hearing be held. $8,850 decided that question by analogizing to the constitutional right to a speedy trial.

$8,850 didn’t mention Mathews, but that omission isn’t surprising. Mathews itself didn’t necessarily mean to establish an overarching framework. Rather, the case took on that role over ensuing years, and is now well-established as illustrated, for example, by the Supreme Court’s use of it in a 2017 decision, Nelson v. Colorado.

Culley could have tied this loose thread—preliminary hearings about seizures before forfeiture—back into the now-established Mathews fabric. That wouldn’t necessarily determine the outcome —whether the Culley petitioners deserved hearings—which would be unclear even under the Mathews analysis. But it would have aligned with longstanding Due Process Clause precedent.

That isn’t what happened. Instead, the Supreme Court declined to say Mathews would apply. It said $8,850—and a similar case from 1986—control the outcome, without needing a Mathews analysis. This may sound like simple adherence to precedent, but Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion revealing the long-term thinking.

Mathews, he said, applies only when the government withholds benefits like disability assistance. This was, indeed, the context of Mathews, but many cases have expanded its application to all forms of property. Yet, Gorsuch continued, the Mathews analysis “does not control ... where the government seeks to deprive an individual of her private property.”

Limiting Mathews, after decades in which it has, indeed, been used for that purpose, would be a remarkable change. What would it mean in practice? First, Gorsuch identified the feature of Mathews that he finds inapplicable for “private property”: In those situations, “we do not afford any particular solicitude to ‘governmental interests.’” In other words, it wouldn’t matter what the purpose or reason was for a given deprivation, and it wouldn’t matter how difficult, costly, time-consuming, or onerous it would be to provide a full hearing. This would be a challenging environment for many existing regulatory programs, especially for local governments.

Second, to determine when something short of a full hearing is allowable, Gorsuch said the answer “turns on history.” In other words, for “private property,” the Mathews analysis would be replaced by an inquiry about what processes were provided at the nation’s founding. This would be the sort of “history and tradition” argument that the Supreme Court has favored—not without controversy—in other constitutional contexts in recent years.

At present, this is only the published view of two concurring justices. But the court’s opinion gives reason to suspect these ideas could become the court’s doctrine in the not-too-distant future. The majority opinion also invokes a historical inquiry, framed as another support for its holding. Moreover, the court had, and rejected, the opportunity to bring $8,850 under the Mathews umbrella.

If you’re litigating a due process claim, or might do so in the near future, you may want to preserve an argument that Mathews doesn’t apply and include some reference to founding-era practice.

By the time your case is finished that might be the law.

The case is Culley v. Marshall, U.S., No. 22-585, decided 5/9/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Keith Bradley is partner and co-chair of the appellate and Supreme Court practice at Squire Patton Boggs, specializing in challenges to regulatory policy.

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