Mark Clausen reported today:
Division 2 of the First District Ct. of App. heard oral argument
today in Samples v. Lockyer,
wherein plaintiff appealed from the denial of her motion for
preliminary injunction, brought on the grounds that the state
forfeiture laws violate due process by vesting the prosecutor with a
pecuniary interest in forfeiture proceedings.
Hopefully I am wrong, but it appeared clear the Court of Appeal
has no intentions of reaching the merits of the due process claim and
will affirm the lower court on procedural grounds -- namely, a
"taxpayer" plaintiff cannot show irreparable harm necessary for a
perliminary injunction.
The court did not ask a single question about the merits.
Everything was devoted to plaintiff's ability to show interim,
irreparable harm.
Since the plaintiff has never been subjected to the forfeiture
statutes, she simply cannot make the requisite showing under the case
law as it exists. The court would have to carve out an exception,
which it seemed to have no intention of doing.
So we'll proceed to judgment in the trial court (expected late
next week) and then the losing side will appeal, and we'll be right
back where we started. On the merits of the due process issue, the
court's moto seems to be "why address today what can be put off to
tomorrow" ....
.....Mark