In rem jurisdiction
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (January 2013)|
In rem (Latin, power about or against "the thing") is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have "in personam jurisdiction." Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property (quasi in rem jurisdiction).
Within the U.S. federal court system, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court's jurisdiction. The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law against a vessel to satisfy debts arising from the operation or use of the vessel.
Within the American state court systems, jurisdiction in rem may refer to the power the state court may exercise over real property or personal property or a person's marital status. State courts have the power to determine legal ownership of any real or personal property within the state's boundaries.
A right in rem or a judgment in rem binds the world as opposed to rights and judgments inter partes which only bind those involved in their creation.
Originally, the notion of in rem jurisdiction arose in situations in which property was identified but the owner was unknown. Courts fell into the practice of styling a case not as "John Doe, Unknown owner of (Property)", but as just "Ex Parte (property)" or perhaps the awkward "State v. (Property)", usually followed by a notice by publication seeking claimants to title to the property; see examples below. This last style is awkward because in law, only a person may be a party to a judicial proceeding – hence the more common in personam style – and a non-person would at least have to have a guardian appointed to represent its interests, or the interests of the unknown owner.
The use of this kind of jurisdiction in asset forfeiture cases is troublesome because it has been increasingly used in situations where the party in possession is known, which by historical common law standards would make him the presumptive owner, and yet the prosecution and court presumes he is not the owner and proceeds accordingly. This kind of process has been used to seize large sums of cash from persons who are presumed to have obtained the money unlawfully because of the large amount, often in situations where the person could prove he was in lawful possession of it, but was forced to spend more on legal fees to do so than the amount of money forfeited.
- Case of One 1985 Nissan, 300ZX, VIN: JN1C214SFX069854, 889 F.2d 1317. 1989 case heard by the Fourth Circuit using the older naming style, because the owner was murdered before the government could arrest him on suspicion of drug trafficking.
- U. S. v. 422 Casks of Wine (1828), an early 19th-century example
- United States v. Forty Barrels and Twenty Kegs of Coca-Cola (1916), brought under the Pure Food and Drug Act (1906) against, not The Coca Cola Company itself, but rather "Forty Barrels and Twenty Kegs of Coca-Cola".
- United States v. Ninety-Five Barrels Alleged Apple Cider Vinegar — Early Food and Drug Administration case.
- United States v. One Ford Coupe Automobile (1926)
- United States v. One Package of Japanese Pessaries, 86 F.2d 737 (2nd Cir. 1936), a case involving contraceptives Margaret Sanger attempted to import, heard by the Second Circuit.
- United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness, 40 F.Supp. 208 (W.D.N.Y. 1941)
- United States v. One Book Called Ulysses, the landmark 1933 ruling by John M. Woolsey that James Joyce's novel had sufficient literary merit to overcome its obscene portions. Upheld on appeal as United States v. One Book Entitled Ulysses by James Joyce.
- Marcus v. Search Warrant, full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri. An unusual in rem case heard by the Supreme Court where the named object was not the seized property but the warrant under which it was seized. Since all the government agents involved were indisputably acting within the law as it stood, the only way for the petitioner to challenge the constitutionality of the seizure was to name the search warrant itself as defendant.
- Quantity of Books v. Kansas, 1964 U.S. Supreme Court case holding seizure of allegedly obscene materials unconstitutional without prior hearing to determine obscenity.
- One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), case in which the U.S. Supreme Court held that the exclusionary rule prevents the forfeiture of material seized in cases where the Fourth Amendment was violated.
- Memoirs v. Massachusetts, case involving Fanny Hill, heard by the U.S. Supreme Court in 1966 (full title: A Book Named "John Cleland's Memoirs of a Woman of Pleasure", et al. v. Attorney General of Massachusetts)
- United States v. Thirty-seven Photographs, an obscenity forfeiture case heard by the U.S. Supreme Court in 1971.
- United States v. 12 200-ft. Reels of Film, a case very similar to the above heard by the Supreme Court two years later.
- People v. Property Listed in Exhibit One (1991)
- R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, R.M.S. Titanic 286 F.3d 194 (2d Cir., 2002) – here distinguishing between plaintiff (company) and object, of the same name; in full the case also named persons as defendants, and identifies the object more precisely as:
- The Wrecked and Abandoned Vessel, its engines, tackle apparel, appurtenances, cargo, etc., located within one (1) nautical mile of a point located at 41° 43′ 32″ North Latitude and 49° 56′ 49″ West Longitude, believed to be the R.M.S. Titanic, in rem;
- United States v. $124,700 in U.S. Currency (2006), an asset forfeiture case based on drug law.
- United States v. 127 Shares of Stock in Paradigm Mfg., 758 F.Supp. 581. A 1990 case from California where a former spouse and children sought to recover securities allegedly purchased with the husband/father's proceeds from drug sales.
- United States v. 50 Acres of Land, 1984 U.S. Supreme Court case involving eminent domain, holding that cost of replacement for taken property does not have to be calculated in its fair market value.
- United States v. Approximately 64,695 Pounds of Shark Fins (9th Cir., 2008). Asset forfeiture case under the Shark Finning Prohibition Act of 2000.
- United States v. Various Pieces of Semiconductor Manufacturing Equipment, 649 F.2d 606 (8th Cir., 1981). Company that was caught trying to sell them to the Soviets claims the long delay between seizure and forfeiture proceedings was a due process violation.
According to Professor Jianfu Chen of La Trobe University, "officially, the drafting of the 2007 Law of Rights in rem started in 1993, . . . [but] rights in rem have always been part of the effort to draft a civil code in the PRC." "Rights in rem are defined to mean the rights by the right-holder to directly and exclusively control specific things (property); it includes ownership rights, usufruct and security interests in property."
- Jus ad rem, a term of the civil law, meaning "a right to a thing" -- distinguished from jus in re, which is dominion over a thing as against all persons.
- Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN: Thompson/West. p. 362.
- LII Backgrounder on Forfeiture
- The United States vs. Money? thenuts, MetaFilter, March 22, 2009
- United States v. Forty Barrels and Twenty Kegs of Coca-Cola, freethought forum
- Chen, Jianfu (2008). Chinese Law: Context and Transformation. Boston: Martinus Nijhoff Publishers. p. 374.
- Chen 2008, p. 379. See Article 2 of the Law on Rights in rem