A three-judge panel of the Florida Third District Court of Appeals ruled last week that Miami's vehicle seizure program has been violating the state constitution for more than a decade. Under a city ordinance, police officers have been seizing vehicles merely by asserting "probable cause" that they had been involved in drugs, prostitution or the illegal dumping of litter. Once impounded, the car is not released unless the owner pays a $1000 "administrative civil penalty" plus towing and storage costs that can run several hundred dollars. The city has made more than $12 million from the program.

Motorists are only allowed to challenge the procedure in an administrative hearing where a city-paid employee determines whether it is likely that the city has proved its case. Sidney Wellman, Gustav Dorcilome, Michel Chiche and Nadine Theodore all lost their cars and found this hearing process to be an empty formality. Each filed suit in what later became a class action that claimed Miami's ordinance violated the common law prohibition against a party judging its own case and also violated the state constitution.

The Third District Court agreed that the program was unconstitutional in 2004, but the state Supreme Court in 2006 upheld an identical ordinance in Hollywood in a narrow legal ruling (view ruling). The high court stated that the lower courts were "free to address these (constitutional) issues on remand, if appropriate."

The appeals court last week reiterated its concerns by pointing out that the Miami ordinance violates the due process clause of the state constitution by not clearly requiring prompt notification be given to all owners in all circumstances. The court took a swipe at the city's argument that it did, in practice, give notice.

"We have not been provided with any case upholding the constitutionality of a statute or an ordinance where the notice requirements of the statute are inadequate and where the 'practice' is to give adequate notice," the opinion stated. "Such voluntary compliance, however, could be discontinued by the city at any time."

The court also found that the city's "preponderance of the evidence" standard of guilt was too weak for a statute that deprives individuals of their property. It also found that vehicle owners who did not know that their car was being used for allegedly illegal acts were nonetheless punished.

"We do not believe that an ordinance that does not allow for an innocent owner to be immune from loss of property and additional monetary penalties can satisfy due process," the court concluded. "Having found three constitutional flaws with the city's ordinances, we decline the city's invitation 'to impose additional requirements' to make the ordinances constitutional. Appellate courts should not be in the business of drafting ordinances to make them constitutional."