A CONSTITUTIONAL CHALLENGE TO CONFISCATORY REGULATION

CONTRARY to what the Seattle City Attorney's office has led some media and
civic observers to believe, the continuing battle over Oscar's II
restaurant is not just about a few rabble-rousers who have a personal beef
with Mark Sidran.

Sidran's ego is big. But what's at stake in Oscar and Barbara McCoy's
battle to save their 22-year-old family business from government closure is
far bigger. It's the vitality of the U.S. Constitution: Does our founding
document remain a sturdy bulwark against abuses of individual liberty - or
has it become a flimsy parchment barrier to public confiscation of private
property?

A recap of the McCoys' legal nightmare: Last November, the couple was sued
by the city of Seattle under the 1988 state drug-abatement law. The measure
was intended to make it easier to clear out crack houses and meth labs. In
practice, however, the civil procedure has been used to bulldoze innocent
businesses based on unsubstantiated testimony by drug
addicts-turned-informants.

This spring, King County Superior Court Judge Joseph Wesley ordered the
McCoys' soul food restaurant on 2051 E. Madison shut for one year. Such a
"temporary" closure is a permanent death knell for any small business. The
couple was stunned at how the city had set up 18 undercover drug buys
inside Oscar's II, failed to notify them of the purchases or identify any
of the dealers, and then worked to shut them down instead of making
arrests. They were devastated that their life's work could be stripped away
- - despite never being accused, suspected of or charged with any criminal
wrongdoing.

Judge Wesley abated the business while also concluding that the McCoys
"have not in any sense permitted the existence of the nuisance in the sense
of having allowed it, furthered it or condoned it." A sheaf of letters from
the Seattle Police Department praised the McCoys' crime-fighting efforts.
Why were they not allowed to confront the confidential informants who
provided hearsay evidence against them?

Facing loss of their lease and a total taking of their premises - including
use of the kitchen for catering to support themselves - the McCoys filed an
appeal challenging the law's constitutionality. In mid-July, the state
Court of Appeals granted an emergency stay of the abatement.

Nearly 200 neighborhood activists and patrons then marched in support of
Oscar's and other Sidran targets. State Sen. Pam Roach (R-Auburn), chair of
the Senate Law and Justice Committee, held a hearing in Seattle to examine
the law's potential abuse. King County Councilman Larry Gossett spoke with
passion and moral authority on behalf of the McCoys. Republicans,
Libertarians and Democrats crowded the hearing room to recommend
legislative reform of Sidran's favorite statutory weapon.

Seattle Mayor Paul Schell and Police Chief Norm Stamper, champions of
effective community policing, didn't bother to attend. Sidran could not
produce a single resident in the McCoys' neighborhood to support the
abatement. Despite his claim that Oscar's II is a "menace," Sidran's office
has twice sought costly delays in abatement proceedings - for vacations.

Meanwhile, the American Civil Liberties Union of Washington voted
unanimously to file an amicus brief for the McCoys. Last week, Roach
reiterated her pledge to push for legislative review of the abatement law.
Eddie Rye of the National Black Chamber of Commerce lodged a civil-rights
complaint against the Seattle Police Department with the U.S. Department of
Justice, which recently opened an investigation.

And two weeks ago, the McCoys' young lawyer, David Osgood, filed a powerful
opening brief in the first-ever challenge to the decade-old drug-abatement
statute. "If the City wants to fight the war on drugs in this fashion,"
Osgood argues, "let it pay for its casualties." Of course, the city should
have effective tools to combat narcotics activity. But Osgood is right: "As
an exercise of police power, this law goes too far."

Much as the martyr-posing Sidran would like to believe otherwise, this is
not personal. It's constitutional.

The Fifth Amendment says: "No person . . . shall be deprived of life,
liberty, or property without due process of law; nor shall private property
be taken for public use, without just compensation" (emphasis added). The
207-year-old "takings clause" was inserted to prevent government from
grabbing people's assets in the name of the common good. Yet, under the
drug-abatement statute, Osgood notes, "the state not only denies a
landowner of all economically viable use of his or her land, it makes the
landowner pay for the deprivation."

Takings cases are often cast as right-wing crusades. Well-heeled developers
such as David Lucas, whose suit against confiscatory environmental
regulation in South Carolina was upheld by the U.S. Supreme Court in 1992,
garner national headlines. The plight of small family businesses like
Oscar's, by contrast, have largely been ignored. One possible reason posed
by Osgood is that abated victims in Washington "may have been disadvantaged
by a lack of resources to pursue appeal."

The McCoys refinanced their home mortgage and are up to their ears in debt.
Oscar's II is open, but hanging by a thread. Neither their innocence nor
their parchment rights have yet protected them from economic and emotional
wreckage by government. The Founding Fathers, who so greatly feared such
abuse, must be turning in their graves.

Michelle Malkin's column appears Tuesday on editorial pages of The Times.
Her e-mail address is: malkin1@ix.netcom.com.

Checked-by: Mike Gogulski