Armstrong v. Manzo, Baldwin v. Hale, Bell v. Burson, Boddie v. Connecticut, Ex Parte Milligan, Fuentes v. Shevin, Goldberg v. Kelly, Grannis v. Ordean, Hovey v. Elliott, In Re Ruffalo, Joint Anti-Fascist Refugee Committee v. McGrath, Kilbourne v. Thompson, Londoner v. City and County of Denver, Lynch v. Household Finance Corp, Miranda v. Arizona, Mitchell v. Grant, Mullane v. Central Hanover Bank & Trust, N. J. Land, North Georgia Finishing v. D-Chem, Opp Cotton Mills v. Administrator of Wage and Hour, relation-back doctrine, Stanley v. Illinois, United States v. Grundy & Thornburgh, United States v. Lee, United States v. Parcel of Rumson, United States v. Stowell, Wayman v. Southard, Windsor v. McVeigh, Wisconsin v. Constrantineau
Relation-Back Doctrine Condemns Administrative Tax Lien & Levy
Fourth Revision, June 2002
The “relation-back doctrine” controls government interest in private propertythat arises as the consequence of an obligation imposed by law.In sum, the principle is this: While any given statute may give the government right, title and interest in property at the time of whatever act or omission the statute specifies, the claim isn’t perfected and transfer may not be executed until the matter is adjudicated. Once a lien is perfected by way of a judgment from a court of competent jurisdiction, it is retroactive to the date of the alleged act or omission that gave rise to the claim (or offer crafted as a claim). This longstanding common-law doctrine has variously been incorporated in statutes, but the necessity of judicial procedure to perfect government interest isn’t dependent on statutory language. Even when the relation-back doctrine isn’t written into a statute that conveys interest in private property for noncompliance with performance requirements, it still controls statute construction.
Addressing the Substantive Nature that is Necessary to Perfect a Like Substantive Claim
(Which would have to encompass and thereby consider the necessary rules and regulations promulgated by the agency in question from the intent of the statute that would necessarily have to be a substantive rule or regulation to give access to any like substantive property interest.)
The requirement for judicial due process is secured by the Fourth, Fifth, Sixth and Seventh Amendments to the Constitution of the United States. The Fourth Amendment controls pre-judgment searches and seizures (there must be a complaint under oath and a probable cause hearing before a magistrate in a court of competent jurisdiction; the exception is a criminal admiralty or maritime warrant, which can be issued by a court clerk), and the Fifth controls conversion: “No person shall be deprived of life, liberty or property without due process of law.”
Relation-back doctrine is confirmed by U.S. Supreme Court decisions in 1806, 1890 and 1993, all cited in this memorandum, and is acknowledged in the Internal Revenue Manual, which prescribes operating procedure for Internal Revenue Service personnel. The doctrine governs how civil (non-criminal) claims of the United States must be perfected and executed. Virtually all IRS seizures where there is no lien or notice of lien are based on Code sections 7301 or 7302, or money laundering statutes classified in Titles 18 and 31, and are predicated on underlying presumptions that the property seized was involved in criminal activity. In either event, even when the action is predicated on a maritime cause, there must be judicial due process under one of two jurisdictional clauses in Article III § 2 of the U.S. Constitution.
If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. “This Court has not … embraced the general proposition that a wrong may be done if it can be undone.” Stanley v. Illinois, 405 U.S. 645, 647.
This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing “appropriate to the nature of the case,” Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313, and “depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any],” Boddie v. Connecticut, 401 U.S. 371, 378, the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. E. g., Bell v. Burson, 402 U.S. 535, 542; Wisconsin v. Constrantineau, 400 U.S. 433, 437; Goldberg v. Kelly, 397 U.S. 254; Armstrong v. Manzo, 380 U.S., at 551; Mullane v. Central Hanover Bank & Trust Co., supra, at 313; Opp Cotton Mills v. Administrator Of Wage And Hour Div., 312 U.S. 126, 152-153; United States v. Illinois Cent. R. Co. , 291 U.S. 457, 463; Londoner v. City And County Of Denver , 210 U.S. 373, 385-386. See In Re Ruffalo, 390 U.S. 544, 550-551. “That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Boddie v. Connecticut, supra, at 378-379 (emphasis in original).
The Supreme Court of Florida wrote one of the better analytical summaries of U.S. Supreme Court decisions concerning procedural due process secured by the Fifth and Fourteenth Amendment clauses in Ray Lien Construction, Inc. v. Jack M. Wainwrite, (1977) 346 S.2d 1029:
Garnishment is but one form of summary remedy historically available to the creditor. It is a method whereby a person’s property, money, or credits in the possession, under the control, or owing by another are applied to payment of the former’s debt to a third person by proper statutory process against the debtor and garnishee. Because this remedy works a deprivation of debtor’s property, it must comply with the requirements of procedural due process.
For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard, and in order that they may enjoy that right, they must first be notified.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233, 17 L. Ed. 531. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).
The United States District Court for the Middle District of Florida recently reviewed the statutes in question and held the procedure, as outlined in Chapter 77, Florida Statutes, unconstitutional. See Bunton v. First National Bank of Tampa, 394 F. Supp. 793 (M.D.Fla.1975). In arriving at its decision, the District Court relied upon the Supreme Court’s decision in North Georgia Finishing Inc. v. D-Chem Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975), wherein a similar Georgia prejudgment garnishment statute was declared unconstitutional. In North Georgia Finishing, the Court referred to its earlier decision in Fuentes v. Shevin, supra, wherein the Florida and Pennsylvania replevin statutes were held invalid. Those statutes permitted a secured installment seller to repossess goods sold without prior notice and without opportunity for a hearing or other safeguard against mistaken repossession. A writ was issuable by a clerk of the court upon ex parte application and posting of bond. It was not necessary to show that the goods were wrongfully detained. Nor was provision made for prompt post-seizure hearing. Thus, the debtor was deprived of his property until final outcome of the repossession suit. The Georgia statute was condemned on similar grounds. A writ of garnishment was issuable at the behest of the seller, without notice or opportunity for early hearing and without participation by a judicial officer. As in Fuentes, debtor’s only remedy was to post a security bond.
We read North Georgia Finishing, supra, and Mitchell, supra, to require a hearing either before the alleged taking or promptly thereafter. In Unique Caterers v. Rudy’s Farm Co., supra, we found Chapter 76 constitutionally deficient because it did not require an immediate post-seizure hearing. Rather, it simply kept the court open at any time to hear motions for dissolution…
We also stated:
It is constitutionally imperative that a writ issue only after an impartial factual determination is made concerning the existence of the essential elements necessary for issuance of the writ. Consequently, a writ must be issued by a judicial officer based upon a prima facie showing rather than pro forma by the clerk of court, unless the initial pleading is made under oath to a clerk who makes an independent factual determination that the requirements of the statute have been complied with. Only then can the individual have his use and enjoyment of property protected from arbitrary encroachment. (footnote omitted)
Circumstances where the executive branch can seize property without judicial due process are extremely limited, and the notion that seized property can be administratively converted without judicial due process even in the event of exigent circumstances that require immediate action is absurd. One of the more comprehensive and expansive statements on the requirement for judicial due process of law was written in United States v. Lee; Kaufman v. Lee, 106 U.S. 196; 1 S. Ct. 240; 27 L. Ed. 171 (1882). In this case, the son of Robert E. Lee, who commanded the Confederate army, recovered the family estate he inherited from his maternal grandfather. The grandfather had given his daughter, Robert E. Lee’s wife, a lifetime estate in the property, but ownership as heir passed to the grandson. The estate was absconded through a trumped-up tax sale rigged to gratify personal hostility of the President. Supreme Court justices who joined in the decision weren’t overly accommodating.
Although this cite is a little longer than would normally be included in what is intended to be a reasonably short memorandum, it is on point particularly where an administrative agency such as the Internal Revenue Service has a half-century history of encumbering and converting private property without judicial due process of law:
What is that right as established by the verdict of the jury in this case? It is the right to the possession of the homestead of plaintiff. A right to recover that which has been taken from him by force and violence, and detained by the strong hand. This right being clearly established, we are told that the court can proceed no further, because it appears that certain military officers, acting under the orders of the President, have seized this estate, and converted one part of it into a military fort and another into a cemetery.
It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defence stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation.
These provisions for the security of the rights of the citizen stand in the Constitution in the same connection and upon the same ground, as they regard his liberty and his property. It cannot be denied that both were intended to be enforced by the judiciary as one of the departments of the government established by that Constitution. As we have already said, the writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the assertion of unlawful authority on the part of the executive and the legislative branches of the government. See Ex Parte Milligan, 71 U.S. (4 Wall.) 2; Kilbourne v. Thompson, 103 U.S. 168.
No man in this country is so high that he is above No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government; and the docket of this court is crowded with controversies of the latter class.
Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of Congress and approved by the President to be unconstitutional, that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without compensation, because the President has ordered it and his officers are in possession?
If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.
It cannot be, then, that when, in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, Stop here, I hold by order of the President, and the progress of justice must be stayed. That, though the nature of the controversy is one peculiarly appropriate to the judicial function, though the United States is no party to the suit, though one of the three great branches of the government to which by the Constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the Secretary of War, which that officer had no more authority to make than the humblest private citizen. [Underscore added for emphasis]
If administrative agencies have the right to encumber, seize and/or dispose of private property without judicial due process, there is no reason to have courts. When King George III subjected British colonies in North America to that kind of foolishness, American founders employed the word “despotism” to describe his actions.1 In 1882, justices of the U.S. Supreme Court articulated the obvious: “If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”
Fortunately, the law doesn’t authorize administrative encumbrance, levy, seizure, garnishment or any other adverse action that compromises life, liberty or property without judicial due process of law. Administrative notices of lien and notices of levy issued by Internal Revenue Service personnel when claims have not been adjudicated are bogus instruments – they are not backed by the force of law. However, these administratively-issued instruments are routinely filed and/or executed by county recorders, banks, employers and others who are either ignorant of the law or are too intimidated to risk reprisal. While there may be no cure for cowardice, the relation-back doctrine clarifies the law.
Where the American people are concerned, judicial due process characteristically falls either under the “arising under” clause (law and equity) or the admiralty and maritime jurisdiction clause, both of which are in Article III § 2 of the Constitution of the United States. Actions at law (“arising under” clause; Fifth, Sixth and Seventh Amendments) must proceed in the course of the common law; equity, admiralty and maritime actions follow the course of the civil law. See Wayman v. Southard, 23 U.S. 1, 6 L.Ed. 253, 10 Wheat 1, and the judiciary act of 1792. The relevant portion of Article III § 2, paragraph 1 is as follows:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction…
Foot Note 1
The relation-back doctrine is to understanding of administration and enforcement of internal revenue laws as the missing link is to evolution theory. It explains why administratively-issued notices of lien and levy are bogus instruments used for fraudulent conversion.
One of the better contemporary Supreme Court cases on the relation-back doctrine is United States v. Parcel of Rumson, N. J. Land, (1993), 507 U.S. 111; 113 S.Ct. 1126; 122 L.Ed. 2d 469.
The Buena Vista case was an in rem (admiralty/maritime) case involving proceeds of illegal drug trafficking.2 The alleged drug dealer made a gift of money to a woman for purchase of the house located on Buena Vista Avenue. Several years later, the drug dealer was prosecuted and the government initiated a civil forfeiture action against the property even though the woman owned it, the government claiming that its interest dated to the time of the illegal transaction that produced the money. Whether or not the woman was aware of the illegal activity was irrelevant since the government’s interest dated to the time of the original illegal transaction. Even though she might be innocent by virtue of what she did or didn’t know, she could not enjoy fruits of the illegal enterprise.
Writing for four of the justices joining the plurality decision, Justice Stevens traced the relation-back doctrine to an 1806 decision written by former Chief Justice John Marshall:
Chief Justice Marshall explained that forfeiture does not automatically vest title to property in the Government:
“It has been proved, that in all forfeitures accruing at common law, nothing vests in the government until some legal step shall be taken for the assertion of its right, after which, for many purposes, the doctrine of relation carries back the title to the commission of the offence.” United States v. Grundy & Thornburgh, 7 U.S. (3 Cranch) 337, 350-351, 2 L. Ed. 459 (1806).
The same rule applied when a statute (a statute that contained no specific relation back provision) authorized the forfeiture. In a passage to which the Government has referred us, we stated our understanding of how the Government’s title to forfeited property relates back to the moment of forfeitability:
“By the settled doctrine of this court, whenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offence is committed; and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienations, even to purchasers in good faith.” United States v. Stowell, 133 U.S. at 16-17 (emphases added).
Foot Note 2
If the Government wins a judgment of forfeiture under the common-law rule — which applied to common-law forfeitures and to forfeitures under statutes without specific relation back provisions — the vesting of its title in the property relates back to the moment when the property became forfeitable. Until the Government does win such a judgment, however, someone else owns the property. That person may therefore invoke any defense available to the owner of the property before the forfeiture is decreed. [Underscore added for emphasis; italics in original]
(Foot Note 1: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.—“ Declaration of Independence (1776)
(Foot Note 2: Where the Buena Vista decision was based on Title 21 civil forfeiture authority, the corresponding provision in the Internal Revenue Code is 26 U.S.C. § 7302, property used in violation of internal revenue laws, and the Internal Revenue Service assumes authority under 26 CFR § 403, which is predicated on the presumption that the property has been used in conjunction with a drug-related commercial crime. Treasury delegation order #157 conveys underlying authority.)