Homestead Contra Civil Forfeiture

Anthony Sanders · May 8, 2022

A provision you often find amongst the jumbled layout of state constitutions is a homestead exemption. They come in various shapes and textures, but all of them are essentially trying to protect the sanctity of the home, and the family it houses, from the rough-and-tumble weathering of the world. Often homestead exemptions come up in bankruptcy law, an area in which I profess profound ignorance. But another is when the government is trying to, for whatever reason, take someone’s home away as payment for a debt or as punishment for a crime. (Not as part of eminent domain, which, of course, is a whole different story.)

As with many constitutional protections, much depends on judges enforcing homestead protections instead of deferring to the government’s wishes to take people’s homes. And much often depends on the legislature too. For example, Minnesota’s states, in Article I, Section 12 of the state constitution, “A reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability. The amount of such exemption shall be determined by law.” In turn, the legislature has enacted details on the exemption, and the courts have ruled on subjects such as whether the state can seize a homestead in various forfeiture proceedings.

This week the Nevada Supreme Court weighed in on how its constitution’s homestead exemption applies to both civil forfeiture and incarcerated individuals. On both counts the government lost.

Aguirre v. Elko County Sherriff’s Office concerned the family home of Efrin Aguirre, Jr. Aguirre’s parents deeded him the home in 2016. However, in 2017 he ran into trouble with the law, and the county sheriff’s office searched the home and found illegal drugs (“over 80 grams of heroin”). His prosecution for trafficking followed and after pleading guilty he was given a sentence of between 48 and 120 months. Meanwhile, the office pursued civil forfeiture against his home, a process we at IJ are all too familiar with.

While in jail following his arrest, Aguirre signed the necessary documents to register the property as a homestead. He then argued in the civil forfeiture action that the home was protected under the state constitution’s homestead exemption and the statutes the legislature had passed pursuant to it.

Article 4, Section 30 of the Nevada Constitution states:

A homestead as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists; but no property shall be exempt from sale for taxes or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon

The court first addressed the argument that this protection simply doesn’t apply to civil forfeiture. It pointed out that there are two exceptions to the constitutional bar within the Constitution’s text: sales for taxes and sales related to debts for the purchase or improvement of the home, i.e. foreclosures on mortgages. Any additional exceptions would be highly suspect, given that the constitution was adopted with these two, and only these two, already written in. The court also noted past cases where it stated the purpose of the provision is to “strengthen family security and stability.” In contrast “creating an exception would result in Aguirre’s family losing their home, which would conflict with the purpose of the homestead exemption by rendering [Aguirre] and his family homeless.” The harm of trafficking in illegal drugs simply doesn’t overcome the text of the constitution and its purpose.

Having found that civil forfeiture is not an exception to the homestead exemption, the court moved on to whether Aguirre qualified for it given that he was incarcerated. For this the court looked at a multitude of caselaw on what one’s homestead is when a homeowner is “temporarily absent.” In Nevada and elsewhere there’s long been an understanding that if one moves away with an intent to return their “residence” can remain the same, and a subset of that caselaw concerns “homestead” concerns. (In fact, I blogged about the issue in the context of political candidates, under the Oregon Constitution, earlier this year.) As you might not be surprised to learn, when someone is incarcerated, at least for a sentence like Aguirre received, the prisoner does not plan to “permanently” move to their new abode (far from it of course!). Further, Aguirre testified that he intended to move back to the same home when he was released (and, in fact, during the course of the civil forfeiture litigation that’s exactly what happened). Therefore, the court had little trouble concluding that Aguirre could both register his homestead status after he was already held in jail, and keep it while he was incarcerated.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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