On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County.
Before Judges Long, Kleiner and Kimmelman.
The opinion of the court was delivered by: Kleiner, J.A.D.
Submitted December 2, 1997
This appeal presents the question of whether a trial Judge presiding in the Law Division, Special Civil Part, abused her discretion in dismissing with prejudice the in rem forfeiture complaint filed by plaintiff, the State of New Jersey, pursuant to N.J.S.A. 2C:64-1 et seq. seeking forfeiture of claimant Allen L. Schaefer, Jr.'s 1987 Chevrolet Camaro Z-28 for failure to answer interrogatories.
Claimant has filed a cross-appeal contending that the motion Judge erred in failing to dismiss plaintiff's forfeiture complaint on grounds of double jeopardy, citing United States v. Ursery, U.S., 116 S. Ct. 2135, 135 L. Ed.2d 549 (1996), *fn1 and on a theory of collateral estoppel. He raised both issues in a motion, which was denied, prior to the entry of the order dismissing plaintiff's complaint for failure to answer interrogatories.
We conclude that under the unique facts of this case, the Judge abused her discretion in dismissing with prejudice plaintiff's complaint and therefore we reverse. For the reasons expressed in part VI, we conclude that the record on claimant's cross-appeal is inadequate to consider the issues raised on the merits. Accordingly, we reverse and remand for reconsideration of claimant's original motion which sought dismissal of plaintiff's complaint on collateral estoppel and double jeopardy grounds.
N.J.S.A. 2C:64-1 et seq., which creates a statutory scheme for forfeiture, was enacted as part of the New Jersey Code of Criminal Justice, Title 2C, by Laws 1978, Chapter 95, generally effective September 1, 1979. "A civil forfeiture proceeding is brought not against the owner or possessor of the property but as an in rem action against the property." State v. Seven Thousand Dollars, 136 N.J. 223, 232-33 (1994). Because the theory of forfeiture is "`based on the misuse of the property rather than resulting from the commission of an offense by its owner or user[,]' . . . under forfeiture law the property itself is considered the offender." Id. at 233 (quoting State v. One 1986 Subaru, 230 N.J. Super. 451, 455 (App. Div. 1989) aff'd in part, rev'd in part, 120 N.J. 310 (1990)).
Generally, forfeiture statutes are disfavored in the law. State v. 1979 Pontiac Trans Am, 98 N.J. 474, 481 (1985); State v. One (1) Ford Van Econoline, 154 N.J. Super. 326, 331 (App. Div. 1977), certif. denied, 77 N.J. 474 (1978); One (1) 1979 Chevrolet Camaro Z-28, 202 N.J. Super. 222, 229 (App. Div. 1985). "We have required that courts strictly construe forfeiture statutes against the State and `in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation.'" Seven Thousand Dollars, supra, 136 N.J. at 238 (citations omitted).
In pertinent part, N.J.S.A. 2C:64-1, "Property subject to forfeiture," provides:
"a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:"
(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts . . . .
N.J.S.A. 2C:64-3 governs "Forfeiture Procedures" and contains the following provision:
"a. Whenever any property other than prima facie contraband *fn2 is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and ...