On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-720-99.
Before Judges Kestin, Cuff and Lario.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The focal issue in this case is the constitutionality of New Jersey's criminal instrumentality forfeiture law, N.J.S.A. 2C:64-1 to -9 (the Act). The trial court held that the seizure of a motor vehicle pursuant to N.J.S.A. 2C:64-6a violated the owner's federal and State due process rights. We reverse.
This proceeding arose on June 22, 1999, when the Cumberland County Prosecutor filed a verified civil action complaint in rem on behalf of the State of New Jersey, seeking forfeiture of the motor vehicle. See N.J.S.A. 2C:64-3. The complaint alleges that the vehicle had been confiscated following its use by Rexford McCaffrey in connection with a series of marijuana sales; that it was registered to Carol McCaffrey, his mother; and that Rexford McCaffrey was its de facto owner.
Carol McCaffrey (counterclaimant) filed a timely answer denying the key allegations of the complaint and pleading siX separate defenses. In an amended answer and counterclaim filed under the name of Carol Thomas on May 22, 2000, after a cognate suit in federal court pursuant to 42 U.S.C.A. § 1983 had been dismissed, counterclaimant added two separate defenses asserting the unconstitutionality of N.J.S.A. 2C:64-6a, under both the Fifth Amendment to the United States Constitution and Article one, Paragraph one of the New Jersey Constitution. The counterclaim [.arrowhorizex] against the State, the Attorney General, and Cumberland County [.arrowhorizex] articulated in detail the constitutional violations charged and the theories upon which the assertions of unconstitutionality are based.
The gravamina of the constitutional challenge are framed in two paragraphs of the counterclaim:
25. In New Jersey, the agencies seizing and prosecuting forfeitures are entitled to keep and benefit from the property or currency forfeited to the government. Seizing and prosecuting agencies in New Jersey are thus granted a direct financial stake in the outcome of forfeiture efforts.
26. When public officials and their agencies have a direct financial stake in the outcome of their actions, due process requires that such actions be subject to particularly close scrutiny. By mandating that property subject to forfeiture, and the proceeds from the sale of such property, be channeled directly to the officials and bodies charged with enforcing and prosecuting the law, N.J.S.A. 2C:64-6a on its face and as applied creates the potential for bias, the appearance of bias, and/or actual bias in the administration of New Jersey's civil forfeiture law.
Counterclaimant seeks a declaratory judgment, injunctive relief, and an order granting reasonable attorneys' fees and costs. The State and the Attorney General in one pleading, and Cumberland County in another, joined issue on the counterclaim with denials of unconstitutionality and in twenty separate defenses. Thereafter, the Attorney General superseded the Cumberland County Prosecutor as attorney for the State. We refer to the governmental parties, collectively, as"the State."
On January 19, 2001, the trial court entered an order on the State's motion, apparently with counterclaimant's consent, vacating a $1,500 cash bond that had been substituted for the vehicle as permitted by N.J.S.A. 2C:64-3g, and dismissing the forfeiture complaint pursuant to R. 4:37-1(b). The trial court, also, denied the State's Rule 4:6-2(a) motion to dismiss the counterclaim for lack of subject matter jurisdiction.
On November 12, 2002, the trial court heard oral argument on cross-motions for summary judgment addressed to the counterclaim's"liability" features, i.e., the constitutional issues. The court's grant of counterclaimant's motion was memorialized in an order entered on December 10, 2002. In a letter opinion dated December 11, 2002, the judge explained his reasons for declaring that"the seizure of [the] vehicle pursuant to N.J.S.A. 2C:64-6a, violated due process guarantees afforded by the U.S. and New Jersey Constitutions." The opinion concluded:"A trial will be scheduled on [the] counterclaim as to damages."
The State moved for leave to appeal. On January 10, 2003, for reasons expressed in a letter of the same date, the trial judge entered an order granting the State's motion for a stay pending appeal. We granted leave to appeal on April 3, 2003.
There has been no dispute regarding the facts alleged in the complaint that gave rise to the forfeiture claim. The questions before the trial court were purely matters of law. The same issues are raised on appeal.
N.J.S.A. 2C:64-6a, addressing the disposal of forfeited property, provides:
Property which has been forfeited shall be destroyed if it can serve no lawful pur pose or it presents a danger to the public health, safety or welfare. All other for-feited property or any proceeds resulting from the forfeiture and all money seized pursuant to this chapter shall become the property of the entity funding the prosecut-ing agency involved and shall be disposed of, distributed, appropriated and used in accordance with the provisions of this chap-ter.
The prosecutor or the Attorney General, whichever is prosecuting the case, shall divide the forfeited property, any proceeds resulting from the forfeiture or any money seized pursuant to this chapter with any other entity where the other entity's law enforcement agency participated in the sur-veillance, investigation, arrest or prosecu-tion resulting in the forfeiture, in propor tion to the other entity's contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture, as determined in the discretion of the prosecu tor or the Attorney General, whichever is prosecuting the case. Notwithstanding any other provision of law, such forfeited prop-erty and proceeds shall be used solely for law enforcement purposes, and shall be des-ignated for the exclusive use of the law enforcement agency which contributed to the surveillance, investigation, arrest or prosecution resulting in the forfeiture.
The Attorney General is authorized to promulgate rules and regulations to imple ment and enforce the provisions of this act. Regulations entitled"Attorney General's Standards for the Equitable Distribution to Contributing Law Enforcement Agencies of Forfeited Property," N.J.A.C. 13:77-1.1 to -7.1, were adopted in 1988. They expired on March 23, 1998. See N.J.A.C. 13:77 (Chapter Historical Note; 30 N.J.R. 703(b) (Feb. 17, 1998)). Since that time, standard operating procedures (SOPs), also promulgated by the Attorney General, address the same subject matter.
SOP 2:6 provides that property forfeited to a law enforcement agency, or other property purchased with funds from the proceeds of forfeited property, shall be held by the agency for law enforcement purposes. SOP 12 sets forth the guidelines for distributing property to participating law enforcement agencies. SOP 12:1 states:"All forfeited property, and all funds derived from the sale, auction or other disposition of said property[,] shall be used solely for law enforcement purposes." SOP 12:4F provides:
"Law enforcement purpose" means a purpose which is calculated to enhance a law enforcement agency's ability to conduct criminal investigations, surveillances, arrests and prosecutions and to respond more fully to the effects of crime and, for pur poses of these rules, shall be beyond that allocated by the law enforcement agency's annual budget. A law enforcement purpose shall include expenditures to defray the costs of protracted or complex investiga tions; to educate the public in crime pre vention techniques; to provide additional technical assistance or expertise, which may, for example, include participation in funding the purchase of Statewide automated fingerprint identification equipment, an automated uniform offense and arrest report system, the purchase of surveillance and undercover transportation and investigation equipment, and computer hardware and soft ware to enhance the coordination and sharing of ...