Supreme Court Justice Sonia Sotomayor’s concerns about “police power” were echoed by conservative Justice Neil Gorsuch on Monday. The court denied review of the case O’Donnell v. The case asked the court to resolve the question of whether the city’s practice of impounding and selling a driver’s car after two unpaid parking tickets and keeping the proceeds, without offsetting the ticket debt or refunding the surplus, is an unconstitutional taking.
The Seventh Circuit had previously upheld the practice as being consistent with the Fifth Amendment’s Takings Clause, concluding it is part of the police’s power to enforce traffic code. Sotomayor, a liberal, explained in a statement respecting the denial of certiorari why she decided to join the majority of justices in declining to hear the case despite having concerns about that “police power.” “I have serious concerns about that conclusion, which implicates a Circuit split over whether, and under what circumstances, exercises of the State’s police power are immune to takings claims. Because that split would continue to benefit from further percolation, however, and because this case is not the best vehicle to resolve the split, I concur in the Court’s denial of certiorari,” she wrote.
She was joined by Gorsuch in her statement, signaling concern from both the court’s conservative and liberal wings about the scope of police power in these sorts of cases. Sotomayor said she believes courts should “carefully and narrowly define the circumstances in which the State’s exercise of its police powers are held exempt from the just compensation requirement, as well as explain the source of any such exemption.” “I again encourage courts considering this issue to take care that due deference to state police powers does not eclipse constitutional rights,” she added. Still, Sotomayor said there are certain questions that would continue to “benefit from further percolation” in the lower courts, and that petitioners “lodged a facial challenge to Chicago’s ordinance” which could require the court “to invalidate even those features of the law that have nothing to do with vehicle forfeiture.” This is a breaking news article that will be updated.
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