On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication June 16, 1997. As Corrected July 1, 1997.
Before Judges Long, A.a. Rodriguez and Cuff. The opinion of the Court was delivered by Long, P.j.a.d. Rodriguez, A.a., J.A.D., Dissenting.
The opinion of the court was delivered by: Long
The opinion of the Court was delivered by
The issue raised in this case is whether the owner of property subject to forfeiture under N.J.S.A. 2C:64-1 is entitled to a jury trial pursuant to article 1, paragraph 9 of the New Jersey Constitution. For the reasons that follow, we have concluded that a jury trial is required when demanded by a claimant in a forfeiture action and that the summary Disposition contemplated by the statute does not pass constitutional muster.
The case arose when the State instituted an action seeking forfeiture of a 1990 Honda Accord automobile which was owned by claimant, Lois McDermott. She answered, demanding a jury trial and counterclaimed for a declaration that N.J.S.A. 2C:64-3(f), which provides for non-jury Disposition of a forfeiture action, is unconstitutional. The trial Judge granted the State's motion to dismiss the counterclaim. The case was then tried before a Judge who ordered forfeiture of the vehicle to the State. *fn2 Mrs. McDermott appeals. We reverse.
Forfeiture is the "divestiture without compensation of title to property used to further criminal activity." State v. 1979 Pontiac Trans Am, 98 N.J. 474, 479 (1985). "Statutes authorizing forfeiture stem from ancient religious beliefs that religious expiation was required of a chattel that caused a person's death." Ibid. (citing 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)). Oliver Wendell Holmes described modern forfeiture law as the last vestige of the common law deodand. *fn3 O. W. Holmes, The Common Law, pp. 25-30 (1923). The deodand, which was a payment to the Crown by the owner of an object that accidentally caused the death of another, based assignment of liability regardless of guilt or innocence. See Jacob J. Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty, 46 Temp. L.Q. 169, 249-51 (1973). However, the forfeiture action eventually lost its religious connotation and simply became a source of revenue for the Crown, where it was justified as a penalty for carelessness. 1979 Pontiac Trans Am, (supra) , 98 N.J. at 479-80.
While the law of deodands did not become part of the common law tradition of the United States, modern forfeiture statutes descend from this ancient heritage. Id. at 480 (citing Calero-Toledo, (supra) , 416 U.S. at 682-83, 94 S. Ct. at 2091-92, 40 L. Ed. 2d at 468; United States v. United States Coin & Currency, 401 U.S. 715, 720, 91 S. Ct. 1041, 1044, 28 L. Ed. 2d 434, 438 (1971)). Modern forfeiture statutes, however, are supported by more contemporary considerations than those originally giving rise to forfeiture. Ibid. "Currently, our forfeiture statute represents a legitimate exercise of the State's police power of preventing further unlawful use of property because of the statute's punitive and deterrent effect." State v. One 1986 Subaru, 230 N.J. Super. 451, 456 (App. Div. 1989), aff'd in part, rev'd in part, 120 N.J. 310 (1990). These statutes act as a means of preventing the commission of a particular offense and of providing incentives to owners of property to be more responsible in its use. State v. One 1988 Honda Prelude, 252 N.J. Super. 312, 316-17 (App. Div. 1991).
Unlike common law forfeiture, statutory forfeiture is limited to the property itself, "which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient." Farley v. $168,400.97, 55 N.J. 31, 37-38 (1969) (quoting Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S. Ct. 282, 284, 75 L. Ed. 558, 561 (1931)). Obviously, however, although the property is treated as the defendant for historical reasons, it is, in reality, the claimant who is the interested party. United States v. Real Prop. Located at 2101, 2280, 2401 and 2501 Maple St., 750 F. Supp. 817, 818 n. 2 (E.D. Mich. 1990). "To treat the claimant as if [she] were an intervenor in a suit between the government and a piece of property would be an exaltation of form over substance." Ibid.
N.J.S.A. 2C:64-1 to -9 sets forth the method by which contraband property and property which has been or is intended to be used in criminal activity may be subject to forfeiture in New Jersey. N.J.S.A. 2C:64-3(f), which addresses forfeiture of non-contraband property, prescribes in relevant part:
If an answer is filed, the Superior or county district court shall set the matter down for a summary hearing as soon as practicable.
On its face, this statute provides for a non-jury, or summary, proceeding in a civil in rem forfeiture action. It is this provision which Mrs. McDermott claims is unconstitutional because it denies her right to a jury trial. Her claim is necessarily footed in the New Jersey Constitution because the Seventh Amendment to the United States Constitution which guarantees the right to trial by jury is not binding upon state courts. ...