On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Pollock, Clifford, Schreiber, Handler, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.
We granted certification, 96 N.J. 299 (1984), to determine the constitutionality of enforcing the New Jersey forfeiture statute, N.J.S.A. 2C:64-1 to -9, against a property owner who allegedly was unaware of the illegal use of his property and who did all that could reasonably be expected to prevent that use. Appellant, Orlando T. Figueroa (Mr. Figueroa), is the registered owner of a 1979 Pontiac Trans Am (the Pontiac) forfeited to Union County because his son, Orlando Figueroa (Orlando), used the car to transport stolen property. Mr. Figueroa asserts he was unaware that his son intended to use the property for illegal purposes and that he did all that could reasonably be expected to prevent that use.
In an unreported decision, the Appellate Division affirmed the Law Division's grant of a summary judgment in favor of the County. We reverse and remand the matter to the Law Division for a plenary hearing.
On July 25, 1982, Orlando and a companion were driving home from the shore in Mr. Figueroa's Pontiac. Both young men had been drinking alcoholic beverages. At approximately 1:00 a.m., they stopped at a street corner in Elizabeth. They broke the windows of a parked Corvette, removed the car's "T-roof," placed it in the trunk of the Pontiac, and left. According to Orlando, neither he nor his companion planned to steal the T-roof; instead, he attributed the theft to excessive
drinking and a spontaneous impulse. A witness observed the theft and reported it to the police. The police verified the registration of the Pontiac, went to the Figueroa residence, and located the stolen T-roof in the trunk of the Pontiac. Orlando was indicted for crimes arising out of the event, but, because it was his first offense, he was accepted into the Pretrial Intervention Program. See R. 3:28.
Pursuant to N.J.S.A. 2C:64-3, the county prosecutor, acting on behalf of the State, instituted a summary action under Rule 4:67 for the forfeiture of the Pontiac. On the return date of the order to show cause, the Law Division, without taking any testimony, entered judgment vesting title to the car in the County. The Appellate Division affirmed without discussing the constitutionality of the statute.
As described in this case, forfeiture refers to the divestiture without compensation of title to property used to further criminal activity. Statutes authorizing forfeiture stem from ancient religious beliefs that religious expiation was required of a chattel that caused a person's death. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-81, 94 S. Ct. 2080, 2090, 40 L. Ed. 2d 452, 466-67 (1974) (Calero-Toledo). Forfeiture was transported into English common law, where property causing death could be forfeited to the Crown for pious purposes as a deodand. O. W. Holmes, The Common Law, pp. 23-24 (1881) (Holmes); 2 F. Pollock & F. Maitland, The History of English Law 473-74 (2d ed. 1898). The term "deodand" derives from the latin phrase Deo dandum, meaning "a thing to be given to God," and refers to a chattel that causes death. Black's Law Dictionary 392 (5th ed. 1979); Bouvier's Law Dictionary 844 (8th ed. 1914). Eventually, forfeiture actions lost their religious connotations and became a source of revenue for the Crown, which justified its action as a penalty for the carelessness of the owner. Calero-Toledo, supra, 416 U.S.
at 680-83, 94 S. Ct. at 2090-91, 40 L. Ed. 2d at 466-68; Comment, "Civil Forfeiture and Innocent Third Parties," 3 N.Ill.U.L.Rev. 323, 326-31 (1983); Note, "Forfeiture Seizures and the Warrant Requirement," 48 U.Chi.L.Rev. 960, 961-63 (1981).
Although the law of deodands did not become part of the common-law tradition of the United States, Calero-Toledo, supra, 416 U.S. at 682-83, 94 S. Ct. at 2091-92, 40 L. Ed. 2d at 468, modern forfeiture statutes descend from this ancient heritage. U.S. v. U.S. Coin & Currency, 401 U.S. 715, 720, 91 S. Ct. 1041, 1044, 28 L. Ed. 2d 434, 438 (1971). Thus, forfeiture actions, such as those authorized by N.J.S.A. 2C:64-3, are conducted as in rem civil proceedings with the property itself as the formal defendant. See, e.g., U.S. v. U.S. Coin & Currency, supra, 401 U.S. at 719-20, 91 S. Ct. at 1044, 28 L. Ed. 2d at 438 (forfeiture action instituted as an in rem proceeding against the money itself); U.S. v. One (1) 1976 Lincoln Mark IV, 462 F. Supp. 1383, 1388 (W.D.Pa.1979) (forfeiture proceedings are in rem actions against the vehicle itself); U.S. v. One (1) 1971 Chevrolet Corvette, 393 F. Supp. 344, 347 (E.D.Pa.1975) (forfeiture proceeding is an in rem action against the vehicle); Farley v. $168,400.97, 55 N.J. 31, 37 (1969) (statutory forfeiture is limited to the offending property itself); Spagnuolo v. Bonnet, 16 N.J. 546, 560 (1954) (a forfeiture proceeding is directed against the thing itself); Kutner Buick, Inc. v. Strelecki, 111 N.J. Super. 89, 99 (Ch.Div.1970) (forfeiture proceedings are actions against the offending property itself); State v. Garcia, 114 N.J. Super. 444, 447 (Law Div.1971) (forfeiture proceedings are actions against the offending property itself); 36 Am.Jur. 2d Forfeitures & Penalties § 17 at 623 (1968) (forfeitures may be effected as civil in rem actions against the property itself).
Modern forfeiture statutes are supported by more contemporary considerations than those that originally gave rise to forfeiture. At present, forfeiture proceedings are often viewed as the only adequate means to protect against a particular ...