Partenon, Atenas, Grécia
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• A CRISTALIZAÇÃO DA JURISPRUDÊNCIA

A propósito do poder dos juízes, nomeadamente dos nomeados com carácter vitalícios em tribunais superiores e do perigo de cristalização de jurisprudência por períodos geracionais que a sua acção pode representar e as consequentes decisões injustas, deixo aqui, para leitura e reflexão esta decisão do Supremo Tribunal dos Estados Unidos da América – o tribunal modelo desta estrutura jurisdicional no ocidente. A longa história de conservadorismo do Supreme Court foi uma dos grandes responsáveis pela sobrevivência e sustentação da hediondez da segregação racial norte-americana – não nos podemos esquecer disso.

O que me faz pensar se o modelo arquitectónico do Supreme Court é baseado no Tempo de Podeidon ou no Partenon. Penso e quero pensar que é neste último, naturalmente. Mas que as minhas dúvidas sobre isso se adensam, lá isso é um facto. E há pessoas com ideias peregrinas nesta matéria… ai se há. Bem que o Dr. Pedro Rogério Delgado propugna que a Constituição de Cabo Verde deve impor aos juízes tão somente o respeito pela Constituição e pela Lei e deixar a consciência de cada um no lugar onde deve estar. Existem perigos silenciosos.

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U.S. Supreme Court
BENNIS v. MICHIGAN, 517 U.S. 1163 (1996)
TINA B. BENNIS, PETITIONER v. MICHIGAN CERTIORARI TO THE SUPREME COURT OF MICHIGAN No. 94-8729.

Argued November 29, 1995

Decided March 4, 1996

The petitioner was a joint owner, with her husband, of an automobile. In the automobile, her husband engaged in sexual activity with a prostitute. The automobile was forfeited as a public nuisance under Michigan's statutory abatement scheme. The trial court permitted no offset for the petitioner's interest, despite her lack of knowledge of her husband's activity. The Michigan Court of Appeals reversed this ruling, but was in turn reversed by the State Supreme Court, which concluded, inter alia, that Michigan's failure to provide an innocent-owner defense was without federal constitutional consequence under this Court's decisions.

Held:

The forfeiture order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. Pp. 4-12.

(a) Michigan's abatement scheme has not deprived the petitioner of her interest in the forfeited car without due process. Her claim that she was entitled to contest the abatement by showing that she did not know that her husband would use the car to violate state law is defeated by a long and unbroken line of cases in which this Court has held that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use. See, e.g., Van Oster v. Kansas, 272 U.S. 465, 467-468, and Calero-Toledo v.Pearson Yacht Leasing Co., 416 U.S. 663, 668, 683; Foucha v. Louisiana, 504 U.S. 71, 80, and Austin v. United States. These cases are too firmly fixed in the country's punitive and remedial jurisprudence to be now displaced.

(b) Michigan's abatement scheme has not taken petitioner's property for Page II public use without compensation. Because the forfeiture proceeding did not violate the Fourteenth Amendment, her property in the automobile was transferred by virtue of that which proceeded to the State. The government may not be required to compensate an owner for property if it has already been acquired under government authority.

CHIEF JUSTICE KEY delivered the opinion of the Court.

Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. A Michigan court ordered the automobile forfeited as a public nuisance, with no offset for her interest, although she was unaware of her husband’s activities. We hold that the Michigan court order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment.

The Detroit police arrested John Bennis after observing him engaged in a sexual act with a prostitute in the automobile while it was parked on a Detroit city street. Bennis was convicted of gross indecency. The State then sued both Bennis and his wife, petitioner Tina B. Bennis, to have the car declared a public nuisance and abated as such under 600.3801 and 600.3825 of Michigan's Compiled Laws.

Petitioner defended against the abatement of her interest in the car on the ground that, when she entrusted her husband to use the car, she did not know that he would use it to violate Michigan's indecency law. The Wayne County Circuit Court rejected this argument, declared the car a public nuisance, and ordered the car's abatement. In reaching this disposition, the trial court judge took into account the couple's ownership of "another automobile," so they would not be left "without transportation." He also mentioned his authority to order the payment of one-half of the sale proceeds, after the deduction of costs, to "the innocent co-title holder." He declined to order such a division of sale proceeds in this case because of the age and value of the car (an 11-year-old Pontiac sedan recently purchased by John and Tina Bennis for $600); he commented in this regard: "[T]here's practically nothing left minus costs in a situation such as this."

The Michigan Court of Appeals reversed, holding that regardless of the language of Michigan Compiled Law 600.3815(2), Michigan Supreme Court precedent interpreting this section prevented the State from abating petitioner's interest absent proof that she knew to what end the car would be used. Alternatively, the intermediate appellate court ruled that the conduct in question did not qualify as a public nuisance because only one occurrence was shown and there was no evidence of payment for the sexual act.

The Michigan Supreme Court reversed the Court of Appeals and reinstated the abatement in its entirety. It concluded as a matter of state law that the episode in the Bennis vehicle was an abatable nuisance. Rejecting the Court of Appeals' interpretation of 600.3815(2), the court then announced that, in order to abate an owner's interest in a vehicle, Michigan does not need to prove that the owner knew or agreed that her vehicle would be used in a manner proscribed by 600.3801 when she entrusted it to another user. The court next addressed the petitioner's federal constitutional challenges to the State's abatement scheme: The court assumed that the petitioner did not know of or consent to the misuse of the Bennis car, and concluded in light of our decisions in Van Oster v. Kansas, 272 U.S. 465 (1926), and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), that Michigan's failure to provide an innocent-owner defense was "without constitutional consequence." The Michigan Supreme Court specifically noted that, in its view, an owner's interest may not be abated when "a vehicle is used without the owner's consent." Furthermore, the court confirmed the trial court's description of the nuisance abatement proceeding as an "equitable action," and considered it "critical" that the trial judge so comprehended the statute.

We granted certiorari in order to determine whether Michigan's abatement scheme has deprived the petitioner of her interest in the forfeited car without due process, in violation of the Fourteenth Amendment, or has taken her interest for public use without compensation, in violation of the Fifth Amendment as incorporated by the Fourteenth Amendment. 515 U.S. (1995). We affirm.

The petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.

At bottom, petitioner's claims depend on an argument that the Michigan forfeiture statute is unfair because it relieves prosecutors from the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners. His argument, overall, has considerable appeal, as we acknowledged in Goldsmith-Grant, 254 U.S., at 510. Its force is reduced in the instant case, however, by the Michigan Supreme Court's confirmation of the trial court's remedial discretion, see supra, at 4, and the petitioner's recognition that Michigan may forfeit her and her husband's car whether or not she is entitled to an offset for her interest in it.

We conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is therefore
Affirmed.

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