The opinion of the court was delivered by: Pollock, J.
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 302 N.J. Super. 225 (1997).
At issue is whether the owner of property that is not prima facie contraband has a right to a jury trial in a forfeiture action under N.J.S.A. 2C:64-3f.
The Monmouth County Prosecutor brought a civil in rem action under N.J.S.A. 2C:64-1 to -9 ("Forfeiture Act"), seeking forfeiture of a 1990 Honda Accord owned by Lois McDermott. McDermott demanded a jury trial and counterclaimed for a declaration that N.J.S.A. 2C:64-3f, which provides for the non-jury Disposition of a forfeiture action, is unconstitutional.
In a summary proceeding under N.J.S.A. 2C:64-3f, the Law Division determined that McDermott was not entitled to a jury trial and forfeited her Honda to the State. With one Judge Dissenting, the Appellate Division reversed and remanded for a new trial. 302 N.J. Super. 225 (App. Div. 1997). The Attorney General filed a notice of appeal as of right. R. 2:2-1(a)(2). We affirm.
At the forfeiture hearing, the State established that McDermott's son, Jackie, used the Honda almost daily. On one occasion, Jackie used the car both to transport heroin and to assault and elude a police officer. On two other occasions, he sold heroin from the Honda to a detective posing as a drug buyer. Before the forfeiture hearing, Jackie pled guilty to the various offenses that led to the seizure of McDermott's Honda.
McDermott, a 65-year-old widow in poor health, testified that she never consented to her son's illegal use of the Honda, that she did all that she could to prevent him from using it, and, in effect, that she was an innocent owner. She gave him neither a key nor permission to use the Honda. McDermott was aware, however, that Jackie had used the Honda on five or six occasions without her permission. She also knew of his extensive criminal record and acknowledged that his prior criminal activities had led to the forfeiture of another car.
The trial court found that Jackie had continuing possession of or access to the Honda. It also found a direct causal relationship between his use of the Honda and his criminal offenses. Consequently, the court ordered forfeiture of the Honda to the State.
The Appellate Division reversed, holding that McDermott was entitled to a jury trial in a forfeiture action and that the statutory proceeding for summary Disposition was unconstitutional. 302 N.J. Super. at 227. In reaching that result, the court relied on an historical analysis of the right to trial by jury in England and the American colonies. Id. at 230-34. The Dissenting Judge, however, was unpersuaded that in New Jersey a defendant in a forfeiture action historically was entitled to a jury trial. Id. at 235 (Rodriquez, J., dissenting).
Statutes are presumed to be constitutional. General Motors Corp. v. City of Linden, 150 N.J. 522, 532 (1997); Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 223 (1985). Anyone challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality. Newark Superior Officers Ass'n, supra, 98 N.J. at 222. Consequently, McDermott bears the burden of proving that N.J.S.A. 2C:64-3f is unconstitutional.
The Forfeiture Act defines two classes of property subject to forfeiture: (1) prima facie contraband, such as heroin, N.J.S.A. 2C:64-1(1); and (2) "innocent" property, such as an automobile, "which has been or is intended to be, utilized in furtherance of an unlawful activity," N.J.S.A. 2C:64-1(2). Different procedures apply to the forfeiture of the two kinds of property. With prima facie contraband, the State may retain the property until the Conclusion of the criminal proceeding, after which the property shall be forfeited, "subject to the rights of owners and others holding interests pursuant to Section 2C:64-5." N.J.S.A. 2C:64-2. The forfeiture of innocent property, however, is subject to a summary hearing conducted in accordance with N.J.S.A. 2C:64-3f. McDermott asserts that by not providing for a right to trial by jury, N.J.S.A. 2C:64-3f is unconstitutional.
Article 1, paragraph 9 of the New Jersey Constitution of 1947 provides that "the right of trial by jury shall remain inviolate." N.J. Const. art. 1, ¶9. This provision guarantees the right to jury trial to the extent that that right existed at common law when the New Jersey Constitution was adopted. State v. Anderson, 127 N.J. 191, 207 (1992); Weinisch v. Sawyer, 123 N.J. 333, 343 (1991).
Traditionally, the right to a jury trial attaches in legal, but not equitable actions. Weinisch, supra, 123 N.J. at 343. Hence, the right to trial by jury depends on whether the cause of action is primarily legal or equitable. Ibid.; Steiner v. Stein, 2 N.J. 367, 379 (1949). In making that determination, the critical considerations are the nature of the requested relief and the historical basis of the cause of action. Ibid. (citing Shaner v. Horizon Bancorp, 116 N.J. 433, 447-55 (1989); In re LiVolsi, 85 N.J. 576, 587-90 (1981); Asbestos Fibres, Inc. v. Martin Labs., Inc., 12 N.J. 233, 239-40 (1953)).
This Court has never decided whether the historical focus of the right to jury trial is the 1947 Constitution, In re LiVolsi, supra, 85 N.J. at 587, the 1844 Constitution, Steiner, supra, 2 N.J. at 378-79, or the 1776 Constitution, Montclair v. Stanoyevich, 6 N.J. 479, 485 (1951). As a practical matter, acceptance of one constitution or another probably does not affect the recognition of the right. Bruce D. Greenberg & Gary K. Wolinetz, The Right to a Civil Jury Trial in New Jersey, 47 Rutgers L. Rev. 1461, 1502 n.35 (1995). Here, the parties agree that the 1776 Constitution is determinative.
In 1776, forfeiture existed in England both at common law and by statute. At common law, an inanimate object described as "deodand" could be forfeited for causing a person's death. Also at common law, property could be forfeited on the owner's conviction of treason or a felony. English law provided for statutory forfeitures of objects used in the violation of customs and revenue laws. Austin v. United States, 509 U.S. 602, 611-13, 113 S. Ct. 2801, 2806-07, 125 L. Ed. 2d 488 (1993).
In New Jersey, forfeiture never existed at common law and remains a disfavored remedy. State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994); State v. 1979 Pontiac Trans Am, 98 N.J. 474, 480-81 (1985); Farley v. $168,400.97, 55 N.J. 31, 36-37 (1969); State v. One Ford Van, 154 N.J. Super. 326, 331 (App. Div. 1977), certif. den., 77 N.J. 474 (1978). Its existence depends on the enactment of a statute. The State ...