Government has abused its authority with respect to discretionary fines and forfeitures that serve as a significant source of revenue for federal, state, and local governments and have a disproportionate impact on poor and disadvantaged communities. Similarly, local government abuses have occurred in land use regulation when the government seeks to obtain private property in exchange for granting a permit by requiring either a physical or monetary exaction. Professor Jessica Asbridge’s new article, Fines, Forfeitures, and Federalism, brings together these two seemingly unrelated areas of potential government abuse—exactions and discretionary fines and forfeitures.
The exactions doctrine allows the government to condition its approval of a permit it could otherwise deny so long as there is “nexus” and “rough proportionality” between the property the government demands in exchange for the permit and the adverse effects caused by the applicant’s project proposal. This higher level of scrutiny applied to exactions protects property developers against abusive government officials acting to extort as much revenue as possible to devote to community infrastructure. Professor Asbridge’s work suggests that heightened scrutiny is appropriate for both exactions requiring payments to the government in land use regulation in exchange for permission to develop and discretionary fines and forfeitures for state and local code violations.
The U.S. Supreme Court expanded the applicability of the Eighth Amendment to the states when it held in Timbs v. Indiana that the Excessive Fines Clause is incorporated into the Due Process Clause of the Fourteenth Amendment. This constitutional provision is now available to allow the impoverished and disadvantaged to challenge fines and forfeitures imposed by state or local governments that are “grossly disproportional” to the offense. And, the Court has supported heightened scrutiny of exactions due to concerns about the government’s misuse of power through extortionate demands for property and coercion in the land permitting processing. It has rejected federalism arguments that a deferential standard is more appropriate.
Professor Asbridge points out that discretionary fines and forfeitures present similar concerns of government overreach as exactions because they often generate millions of dollars in revenue that directly funds state and local governments. She argues that courts thus should apply heightened scrutiny to these fines and forfeitures as well, despite any federalism principles indicated.
Asbridge employs an illustrative, but alarming, decision involving $28,500 in fines and interest for uncut grass to explain two of the key questions that remain after Timbs. First, does the Excessive Fines Clause apply to civil fines that are not part of a criminal proceeding? Second, what level of scrutiny should a court apply when a fine is below the statutory maximum?
In Ficken v. City of Dunedin, James Ficken violated a city ordinance by allowing his grass to exceed ten inches—he failed to mow his lawn. Granted, these violations continued intermittently between 2015 and 2018 when the city board ultimately imposed a $500-per-day fine for the period from July to August 20, 2018, with a grand total of $28,500 in fines plus interest.
When Ficken was unable to pay the fine, the board began foreclosure proceedings against his home to satisfy the debt. He challenged the fine in federal district court as violating the Excessive Fines Clause, which the court rejected and the Eleventh Circuit affirmed. When writing this Jot, I became concerned about poor Mr. Ficken and wondered whether he actually ended up losing his house for failing to mow his lawn. If you are interested, here is a link to an article from April 19, 2024 that tells us he settled with the city and is still in his home. I guess you can fight city hall after all.
Professor Jessica Asbridge’s excellent article encourages us to fight for the impoverished and vulnerable against local government abuse in code enforcement, just as we currently fight against local government abuse of land developers in land-use permitting. We should be willing to protect property based upon the neutral application of constitutional principles at all levels of economic status using heightened scrutiny whenever there is a greater potential for government abuse because of discretionary decisionmaking. Here’s to the Takings Clause for discretionary exactions and impact fees and the Excessive Fines Clause for discretionary fines and forfeitures!
