This is a forfeiture action. The forfeiture statute, N.J.S.A. 2C:64-3b, provides: "The complaint shall be verified on oath or affirmation." The defendant moves to dismiss the complaint because it was not "verified on oath or affirmation" but was certified pursuant to R. 1:4-4(b) which provides: "In lieu of the affidavit, oath or verification required by these rules, the affiant may submit . . ." a certification. This opinion concludes that the motion must be denied, that the complaint is verified in accordance with law.
The defense argues form, not substance. The certification statement is no different, for verification purposes, than an oath or an affirmation; all three provide the requisite proof of the truthfulness of the statements contained in the complaint. In State v. Angelo's Motor Sales, 125 N.J. Super. 200 (App.Div.1973), aff'd sub nom. State v. Parmigiani, 65 N.J. 154 (1974), the Supreme Court said:
Dictionary definitions of "sworn" generally include solemn declarations or assertions of truth without oath and the Legislature has expressly provided that "'sworn' includes 'affirmed'." N.J.S.A. 1:1-2. [65 N.J. at 158]
Parmigiani gave untruthful answers to interrogatories and was charged with the crime of false swearing. He argued that he did not swear falsely because his answers were not given under oath but were certified. The Appellate Division said:
In the past, interrogatories were required to be answered under an oath. A later amendment to the Rules of Court allowed the certification in lieu of oath as a convenience for attorneys and the parties involved. R. 1:4-4(b). The change in rules was not intended to degrade the solemnity of the affirmation of the truth of the answers, nor was it intended to reduce the penalty for providing false answers to interrogatories. In our view, the adoption of the certification procedure merely constituted a change in ritual and not in substance. Certification is only another way of swearing or affirming. It is nothing in itself except as a perceptible manifestation of the intent to verify the statement certified. [125 N.J. Super. at 206-207]
The Appellate Division held that the rule of strict construction applicable to criminal statutes ". . . does not prohibit a court from reading a statute in relation to the mischief and evil sought to be suppressed," 125 N.J. Super. at 207, and thus affirmed the defendant's conviction of false swearing, as did the Supreme Court. The latter said:
It is urged, and for present purposes it may be assumed, that when the Legislature enacted the false swearing statute, it did not have certification in lieu of oath specifically in mind. But that is not at all crucial for its language was broad enough to cover the situation at hand and the legislative goal would clearly be furthered by its inclusion. [65 N.J. at 158]
The same reasoning applies here. The forfeiture statute was adopted after the certification rule became effective, but the legislative goal is clearly furthered by a compatible reading of the statute and the rule. As the Appellate Division said in Parmigiani: "Certification is only another way of swearing or affirming." 125 N.J. Super. at 206-207.
For over a century the Legislature has exhibited a flexibility with respect to oath-taking requirements. In 1877 it authorized an oath to be taken "with the ceremony of lifting up the hand and swearing by the ever-living God, instead of that of touching and kissing the book of the gospels. . . ." N.J.S.A. 41:1-5. In 1899 it adopted N.J.S.A. 41:1-4 providing that "[i]t shall not be necessary to the solemnity or obligation of an oath . . . for the person taking oath to kiss the holy scriptures, but the taking of such oath, while the hand shall be held upon the book, shall answer all the purposes and requirements of the law. . . ." The Legislature also decided in 1877 that it was permissible "to make solemn affirmation or declaration" in lieu of taking an oath. N.J.S.A. 41:1-6. (Note that a "declaration" is little different than a "certification.") In the same year, N.J.S.A. 41:1-7 eliminated the requirement that an officer taking an oath affix a seal.
Our courts have been similarly flexible. Parmigiani is not the only example. In Lawson v. Davis, 116 N.J. Super. 487 (App.Div.1971), the court held ...