(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 16, 1998 -- Decided July 15, 1998
POLLOCK, J., writing for a unanimous Court.
This appeal presents the question whether the owner of property that is not prima facie contraband
has the right to a jury trial in an action to forfeit the property under N.J.S.A. 2C: 64-3f. The Monmouth
County Prosecutor filed a civil in rem action under New Jersey's Forfeiture Act, N.J.S.A. 2C:64-1 to -9,
seeking to forfeit the 1990 Honda Accord automobile owned by Lois McDermott, a 65-year-old widow.
McDermott's son, Jackie, who had been forbidden by his mother to use the car, but who drove the car
anyway almost on a daily basis, had sold heroin from the car to an undercover police officer, had transported
heroin in the vehicle, and had used the car to assault and elude a police officer. These criminal offenses, to
which Jackie pled guilty, led to the forfeiture action.
McDermott demanded a jury trial and filed a counterclaim for a declaration that N.J.S.A. 2C:64-3f,
which provides for a summary, non-jury, hearing to resolve a forfeiture action, is unconstitutional. The
summary hearing was held in the Law Division. The court concluded that McDermott was not entitled to a
jury trial and forfeited her Honda to the State. McDermott appealed, and with one judge dissenting, the
Appellate Division reversed and remanded the matter for a jury trial. On the basis of the dissenting opinion,
the State, by the Attorney General, filed a notice of appeal as of right.
HELD: The owner of property that is not prima facie contraband is entitled to a jury trial in an action to
forfeit the property pursuant to N.J.S.A. 2C: 64-3f.
1. The Forfeiture Act separates property subject to forfeiture into two categories: prima facie contraband,
like heroin, and “innocent” property, such as an automobile, “which has been or is intended to be, utilized
in furtherance of an unlawful activity.” McDermott claims the Act's provision for a summary procedure for
the forfeiture of her “innocent” automobile is unconstitutional because Article 1, paragraph 9 of the New
Jersey Constitution guarantees her the right to a trial by jury. This provision guarantees the right to jury
trial to the extent the right existed at common law when the Constitution was adopted. The parties agree the
1776 Constitution is determinative of the issue in this case. The question is whether in the colonial courts of
New Jersey, the owner of property of the sort involved here and under similar circumstances would have
been entitled to a jury trial. ( pp.3-6 )
2. In England before the American Revolution, the Courts of Exchequer had jurisdiction to hear cases
involving the forfeiture of articles seized on land and concurrent jurisdiction with the Admiralty Courts to
determine the forfeiture of vessels seized on navigable waters. The Courts of Exchequer provided jury trials,
Admiralty did not. In pre-Revolutionary New Jersey, courts like those in England, but bearing different
names, were established. Their jurisdiction and practice were defined by reference to the English courts. In
1776, colonial New Jersey's common-law courts provided for trials by jury. In general, if the English
common law provided a right to a trial by jury, New Jersey's did as well. The English common law as of
1776, except as changed by statute or the State Constitution, became the law of New Jersey after the
American Revolution. ( pp. 7-15 )
3. The right to a jury trial in colonial New Jersey is illustrated by the litigation practice under the English Navigation Acts, violation of which resulted in the forfeiture of goods on ships and the ships themselves.
The Acts, among other things, called for English crews to man vessels transporting goods from Europe to
the Colonies. American juries, which decided forfeiture and other actions under the Acts, were reluctant to
enforce the Acts. In response, the English Parliament sought to establish colonial Admiralty courts to hear
such cases without juries. There is evidence, though, that New Jersey did not establish an Admiralty court
and that matters arising under the Navigation Acts were tried to juries in the courts of common law.
Similarly, forfeiture proceedings under colonial New Jersey's customs statutes were triable in common-law
courts and would have been heard by juries. ( pp. 16-20)
4. By contrast, in colonial New Jersey as in England, certain forfeiture and penalty proceedings to enforce
police statutes and to punish minor criminal conduct, such as violations of fish and game laws, were heard by
a justice of the peace rather than by a jury. The few known instances of summary disposition of such
violations involving contraband appear to be exceptions to the general rule that actions for forfeiture of
innocent property were tried to a jury. ( pp.20-25)
5. Automobiles may be seen as the modern counterpart of the ships of the colonial era and should be
treated in the same manner as the innocent seized property of earlier times. The owner of an automobile
subject to forfeiture is entitled to a jury trial, notwithstanding the inconvenience to the State in recognizing
this constitutional right. McDermott is entitled to have a jury decide whether her automobile is to be
forfeited to the State. (pp. 25-26)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
122 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ONE 1990 HONDA ACCORD,
NEW JERSEY REGISTRATION
NO. HRB20D, VIN NO.
1HGCB7659LA063293 AND
FOUR HUNDRED TWENTY DOLLARS,
Defendant-Respondent.
Argued March 16, 1998 -- Decided July 15,
1998
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
302 N.J. Super. 225 (1997).
Richard W. Berg, Deputy Attorney General,
argued the cause for appellant (Peter
Verniero, Attorney General of New Jersey,
attorney).
Elizabeth Macron argued the cause for
respondent.
The opinion of the Court was delivered by
POLLOCK, J.
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 argues that
because forfeiture is a creature of statute, McDermott has no
common-law right to a jury trial.
Although forfeiture depends on a statute for its existence,
it remains subject to common-law principles. When analyzing the
right to trial by jury, the term "common law" refers to those
principles of English law that evolved in the common-law courts
such as the Court of the Exchequer, as opposed to those applied
in the Admiralty, Chancery, or Ecclesiastical Courts. People v.
One 1941 Chevrolet Coupe,
231 P.2d 832, 836 (Cal. 1951); In re
Forfeiture of 1978 Chevrolet Van,
493 So.2d 433, 435 (Fla. 1986);
Commonwealth v. One 1984 Z-28 Camaro Coupe,
610 A.2d 36, 39 (Pa.
1992); see also William B. Stoebuck, Reception of English Common
Law in the American Colonies, 10 Wm & Mary L. Rev. 393 (1968)
(“'Common law' refers to that body of governing principles,
mainly substantive, expounded by the common-law courts of England
in deciding cases before them.”). Hence, the fact that common-law forfeiture did not become part of New Jersey common law does
not predetermine whether statutory forfeiture was subject to
trial by jury in the colonial common-law courts. The subject
forfeiture, which involves the seizure on land of innocent
property, is the type of case in which the owner would have been
entitled to a jury trial in the common-law courts of colonial New
Jersey.
Long before the American Revolution, the English Court of Exchequer and the Admiralty Court exercised jurisdiction over the forfeiture of objects used in violation of law. C.J. Hendry Co. v. Moore, 318 U.S. 133, 137, 63 S. Ct. 499, 501, 87 L. Ed. 663 (1943). Admiralty cases proceeded without a jury. In contrast, cases in the Court of Exchequer proceeded before a jury. See United States v. One 1 976 Mercedes Benz 280S, 618 F.2d 453, 464 (7th Cir. 1980) ("The distinction between the practice in courts of Admiralty, which heard forfeiture actions without a jury, and the common law courts of Exchequer, in which forfeiture actions were heard with a jury, is well-known."); One 1941 Chevrolet, supra, 231 P. 2d at 839 ("There are reports of many cases in the Court of Exchequer in which articles used in violation of law
were forfeited to the Crown pursuant to statute, in all of which
the cause was tried by jury."); One 1984 Z-28 Camaro Coupe,
supra, 610 A.
2d at 41 ("[I]n England, forfeiture actions in the
Courts of Exchequer were tried before a jury"). To illustrate,
the Court of Exchequer had jurisdiction to hear cases involving
the forfeiture of articles seized on land. C.J. Hendry, supra,
318 U.S. at 137, 63 S. Ct. at 501. It also exercised concurrent
jurisdiction with the Admiralty courts over cases involving
forfeiture of vessels for violations on navigable waters. Ibid.
The American colonies did not establish a Court of
Exchequer. Instead, the common-law courts absorbed that court's
jurisdiction. Id. at 139, 63 S. Ct. at 502-03. Thus, in the
American colonies, colonial common-law courts generally heard
actions involving forfeitures on land. See Austin, supra, 509
U.S. at 613, 113 S. Ct. at 2807 (“But '[l]ong before the adoption
of the Constitution the common law courts in the Colonies . . .
were exercising jurisdiction in rem in the enforcement of
[English and local] forfeiture statutes'”) (quoting Calero-Toledo
v. Pearson Yacht Leasing Co.,
416 U.S. 663, 683,
94 S. Ct. 2080,
2091,
40 L. Ed.2d 452 (1974)); C.J. Hendry, supra, 318 U.S. at
143, 63 S. Ct. at 505 (“[T]here is ample support for the
conclusion that in the seaboard states forfeiture proceedings in
rem . . . were an established procedure of the common law courts
before the Revolution”); One 1976 Mercedes Benz, supra, 618 F.
2d
at 466 ("The conclusion appears inescapable that both English and
American practice prior to 1791 definitely recognized jury trial
of in rem actions at common law as the established mode of
determining the propriety of statutory forfeitures on land for
breach of statutory duties."); One 1941 Chevrolet, supra, 231
P.
2d at 842 (“The common-law courts in the Colonies and in the
states during the period of Confederation exercised jurisdiction
in rem in the enforcement of forfeiture statutes. In general the
actions . . . were tried by jury”); One 1984 Z-28 Camaro Coupe,
supra, 610 A.
2d at 41 (“[I]n the United States, forfeiture
actions were heard before juries in cases where Courts of
Exchequer would have had jurisdiction”). If the forfeiture took
place on navigable waters, either the admiralty or common-law
courts had jurisdiction. C.J. Hendry, supra, 318 U.S. at 139, 63
S. Ct. at 503; Franklyn C. Setaro, The Formative Era of American
Admiralty Law,
5 N.Y.L.F. 9, 26 (1959). Like English common-law
courts, and unlike admiralty courts, colonial common-law courts
provided for trial by jury. C.J. Hendry, supra, 318 U.S. at 139-40, 63 S. Ct. at 503.
In 1776, when New Jersey declared its independence, it nonetheless adopted the common law of England. N.J. Const. of 1776, ¶ XXII. The 1776 Constitution provided:
That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by future law of the legislature; such parts only accepted, as are repugnant to
the rights and privileges contained in this
charter; and that the inestimable right to
trial by jury shall remain confirmed, as part
of the law of this colony, without repeal,
forever.
After the Revolution, the English common law as of 1776, except as changed by statute or the State Constitution, became part of New Jersey law. State v. Smith, 85 N.J. 193, 199 (1981); Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 43 (1958).
Other states embraced English common law with varying degrees of warmth. Seminole Tribe of Florida v. Florida, __ U.S. __, , 116 S. Ct. 1114, 1161-65, 134 L. Ed.2d 252 (1996) (Souter, J., dissenting); see also Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 144, 7 L. Ed. 374 (1829) (“The common law of England is not to be taken in all respects to be that of America. Our ancestors . . . adopted only that portion which was applicable to their situation.”). New Jersey, however, followed English precedents "to a high degree." Stoebuck, supra, at 403; see also Anton-Hermann Chroust, The Rise of the Legal Profession in America, 1, 193-94 (1975) (noting that no English colony more fully accepted and followed English common law than did New Jersey). Before the revolution, for example, New Jersey practice followed that in England concerning forfeitures pursuant to fish and game laws, police power regulations, and the Navigation Acts. Generally, if English common law provided Englishmen with a right to a trial by jury, New Jersey common law provided a comparable right to the people of this State.
The highest courts in the majority of other states have struck down as unconstitutional statutes similar to N.J.S.A. 2C:64-3f. In general, these courts reason that their state constitutions preserve the common-law right to trial by jury in in rem forfeiture actions. One 1941 Chevrolet Coupe, supra, 231 P. 2d at 844; In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433 (Fla. 1986); Idaho Dep't of Law Enforcement By and Through Cade v. Free, 885 P.2d 381 (Idaho 1994); People ex rel O'Malley v. 6323 North LaCrosse Ave., 634 N.E.2d 743 (Ill. 1994); Commonwealth v. One 1972 Chevrolet Van, 431 N.E.2d 209 (Mass. 1982); Vergari v. Marcus, 257 N.E.2d 652 (N.Y. 1970); State v. 1920 Studebaker Touring Car, 251 P. 701 (Or. 1926); One 1984 Z-28 Camaro Coupe, supra, 610 A. 2d at 41; Medlock v. 1985 Ford F-150 Pick Up, 417 S.E.2d 85 (S.C. 1992). Like New Jersey, those states' constitutions guarantee the right to trial by jury as it existed at common law when their constitutions were adopted. See, e.g., One 1941 Chevrolet Coupe, supra, 231 P. 2d at 835 (construing California's constitutional provision that "[t]he right to trial by jury shall be secure to all, and remain inviolate” to include right to trial as it existed at common law when constitution was adopted in 1849); 1978 Chevrolet Van, supra, 493 So. at 433 (construing Florida's constitutional provision that “[t]he right to trial by jury shall be secure to
all, and remain inviolate” to include right to jury trial as it
existed at common law when constitution became effective in
1845); Cade, supra, 885 P.
2d at 384 (construing Idaho's
constitutional provision that “[t]he right to trial by jury shall
remain inviolate” to include right to trial as it existed at
common law when Idaho constitution was adopted in 1889). But see
People v. Allen,
767 P.2d 798 (Colo. Ct. App. 1988); Swails v.
State,
431 S.E.2d 101 (Ga.), cert. denied,
510 U.S. 1011,
114 S.
Ct. 602,
126 L. Ed.2d 567 (1993); State Conservation Dep't v.
Brown,
55 N.W.2d 859 (Mich. 1952); In re Forfeiture of
$1,159,420,
486 N.W.2d 326 (Mich. Ct. App. 1992), appeal denied,
503 N.W.2d 439 (Mich.), and cert. denied,
510 U.S. 867,
114 S.
Ct. 189,
126 L. Ed.2d 147 (1993); State v. Morris,
405 S.E.2d 351 (N.C. Ct. App. 1991). To conclude, the decisions from other
jurisdictions suggest that in common-law forfeiture actions the
trier of fact was the American jury.
Although the mists of time cloud the perception of the historical right to trial by jury, the contours of that right emerge from the shape of colonial statutes and courts. "Upon this point, a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S. Ct. 506, 507, 65 L. Ed. 963 (1921).
History establishes that New Jersey colonists placed a high
premium on the right to trial by jury. Early legislation
establishing courts in New Jersey provided for trial by jury in
all courts, except those hearing small claims. Between 1675 and
1702, New Jersey was divided into two provinces, East and West
Jersey, each of which established a court system. Richard S.
Field, The Provincial Courts of New Jersey 23-31 (1849). In
1702, the two provinces surrendered to Queen Anne, who appointed
Lord Cornbury as the Governor of the united Royal Province of New
Jersey. Stephen B. Presser, An Introduction to the Legal History
of Colonial New Jersey, 7 Rut.-Cam. L.J. 262, 270 (1976). Two
years later, pursuant to the terms of the Queen's commission,
Lord Cornbury promulgated an "Ordinance" establishing courts
throughout the entire Province of New Jersey. Field, supra, at
42.
Lord Cornbury's Ordinance established courts like those that
existed in England. When defining the jurisdiction and practice
of the New Jersey courts, the Ordinance expressly referred to the
courts of England. Edward Q. Keasbey, The Courts of New Jersey:
Some Account of Their Origin and Jurisdiction 84 (1903) ("Courts
of New Jersey"). Hence, the Ordinance authorized the Supreme
Court of Judicature to hear all pleas, "civil, criminal, and
mixt, as fully and amply to all intends and purposes whatsoever
as the courts of Queen's Bench, Common Pleas and Exchequer within
her Majesties Kingdom of England have or ought to have." Id. at
85. Additionally, the Ordinance gave to the civil side of the
County Court or Court of Sessions the English name of "Court of
Common Pleas." Ibid.
Justices of the peace, who sat without a jury, could hear
small-claims matters -- civil cases involving less than forty
shillings. 1 Edward Quinton Keasbey, The Courts and Lawyers of
New Jersey: 1661-1912 172, 174 (1912); Field, supra, at 43. The
Ordinance also established the Court of Common Pleas, which had
its origin in the provincial courts of East and West Jersey, as a
county court with jurisdiction to determine all causes triable at
common law. Edward V. McConnell, “A Brief History of the New
Jersey Courts,
7 N.J. Digest 349-50 (1959); Field, supra, at 43;
Keasbey, supra, at 172, 175.
Lord Cornbury's Ordinance maintained the courts of General
Sessions, which the General Assembly founded in 1675, and the
proprietors of East and West New Jersey continued. Keasbey,
supra, at 175. In both East and West Jersey, these courts
exercised civil and criminal jurisdiction, subject to trial by
jury. Keasbey, supra, at 120, 144-45, 157; Field, supra, at 24.
The Ordinance also provided for a Supreme Court of Judicature and
invested it with the general common-law jurisdiction of the
higher courts of England. Keasbey, supra, at 172, 176.
Finally, Lord Cornbury's Ordinance provided that:
[N]o Person's Right of Property shall be, by
any of the aforesaid Courts Determined,
except where matters of Fact are either
acknowledged by the Parties, or Judgment
confessed, or passeth by the Defendant's
fault for want of Plea or Answer, unless the
Fact be found by verdict of twelve men of
that neighborhood, as it ought to be done by
law.
Before the Ordinance, West Jersey established a Court of Oyer and Terminer for criminal matters in 1693. Field, supra, at 26; Keasbey, supra, at 154-55, 157. One authority declares "[n]o one was to be deprived or condemned of life, liberty or property without trial by a jury of twelve men of the neighborhood." Keasbey, supra, at 56, 143-44. Lord Cornbury's Ordinance does not mention the Court of Oyer and Terminer. Provincial governors, however, issued commissions for that court to the judges of the Supreme Court. Keasbey, supra, at 155.
The courts established by Lord Cornbury remained substantially unchanged until the adoption of the first New Jersey Constitution in 1776. Keasbey, supra, at 161, 181; Field, supra, at 45. Hence, in 1776, colonial New Jersey's common-law courts included the Supreme Court, the Courts of Common Pleas, the Courts of General Sessions, and the Courts of Oyer and Terminer, each of which provided for trials by jury. See generally "An Act relative to juries and verdicts," (passed Nov. 10, 1797), William Paterson, New Jersey Laws: 1703-1799 259 (1800) (discussing use of juries in Supreme Court, Court of General Sessions, and Court of Common Pleas); G. v. C., 172 N.J. Super. 123, 130 (Law. Div. 1978) (noting that neither Lord Cornbury's Ordinance, nor subsequent ordinances removed right to trial by jury in county courts established under the proprietors), aff'd, 172 N.J. Super. 360 (App. Div. 1979);
Supreme Court Docket, 58, 1770-1772 (describing jury trials in
Supreme Court); Michael R. Lazerwitz, The New Jersey Provincial
Supreme Court: Common Law Adjudication During the 1770s (1980)
(unpublished History thesis, Princeton University) (same); Courts
of New Jersey, supra, at 103 (noting that "trials of criminal and
civil cases, by a jury of the county in which the offense was
alleged to have been committed, or the cause of action arose,
were quite frequent" in Supreme Court); Keasbey, supra, at 120,
144-45 (discussing right to jury trial in East and West Jersey's
county courts - predecessors to Courts of Common Pleas and
General Sessions). Judges heard cases without juries, however,
in the justices' court, usually described as the Court for the
Trial of Small Causes, with jurisdiction over matters involving
less than forty shillings.
The history of litigation under the English Navigation Acts sheds further light on the right to trial by jury in colonial New Jersey. Those Acts, among other things, required the use of English crews on vessels carrying goods from Europe to the Colonies. Violations of the Acts resulted in the forfeiture of the goods as well as the ship that transported them. Austin, supra, 509 U.S. at 612, 113 S. Ct. at 2807. The Navigation Acts commonly provided that a forfeiture action might be brought “in any court of record.” C.J. Hendry, supra, 318 U.S. at 139 n.3, 63 S. Ct. at 502 n.3 (citing 12 Car. II, c. 18, §§ 1, 3, 4, 6,
and 18 (1660) (providing for forfeiture proceeding “in any Court
of Record”); 7 & 8 Wm. III, c. 22, § 2 (1696) (providing that
forfeitures of ships and goods might be enforced “in any of his
Majesty's courts of record at Westminster, or in any court in his
Majesty's plantations, where such offence shall be committed”)).
Colonial common-law courts regularly heard actions under the
Navigation Acts. Id. at 140, 63 S. Ct. at 503. Colonies such as
Virginia, Maryland, Massachusetts, Pennsylvania, New Hampshire,
Connecticut, and Maine provided jury trials at common law for
forfeitures under the Navigation Acts. Id. at 140-45 nn.4-6, 63
S. Ct. at 503-05 nn.4-6.
American juries, however, were loath to enforce the
Navigation Acts. Id. at 141, 63 S. Ct. at 503-04. Parliament
reacted by seeking to establish colonial Admiralty courts, which
would hear cases without juries. Ibid. Vice-Admiralty courts
did not appear in the colonies until the closing years of the
seventeenth century. Setaro, supra, at 22. In 1738, the
parliamentary vice-admiralty commission to Lewis Morris, then
governor of New Jersey, extended to New York, New Jersey, and
Connecticut. Id. at 24. New Jersey continued to share an
admiralty judge with those two colonies until the Revolution.
When comparing the court system of New York and New Jersey,
Alexander Hamilton pointed out that New Jersey, unlike New York,
had not established Admiralty or Probate courts. According to
Hamilton, in New Jersey Admiralty and Probate matters proceeded
in the courts of common law. The Federalist No. 83 (Alexander
Hamilton). Significantly, he added, "of course the jury trial is
more extensive in New Jersey than in New York." Ibid.
The Journal of the Courts of Common Right and Chancery of
East New Jersey: 1683-1702 (Preston W. Edsall ed. 1937) contains
the record of several condemnation proceedings under the
Navigation Acts, including the 1688 condemnation of The Unity in
the Middlesex Court of Common Pleas, where cases proceeded before
juries. Id. at 136-37. Even more persuasive is the 1685 case of
The Dolphin, which involved a trial by jury for a violation of
the Navigation Acts. The sloop Dolphin landed in Elizabethtown
with a cargo of European goods. Id. at 135. After the ship was
loaded, the Surveyor General of Customs, William Dyre, arrived
and discovered that only one of the crew was English. Dyre
seized the ship for violating the Navigation Acts. The Dolphin's
master, however, prevailed upon Governor Lawrie to sign a pass
allowing the Dolphin to set sail. Dyre pursued the Dolphin,
brought her back, and filed an information. Ibid. Because the
Court of Common Right had adjourned, Governor Lawrie created a
special commission to adjudicate the matter. Ibid. A jury heard
the case and entered a verdict for the Dolphin's owner. Id. at
136. The court taxed costs of "£4.3.0," which Dyre refused to
pay. Adding injury to insult, the court seized Dyre's horse for
£3 and imprisoned him for the balance. Ibid.
Another Navigation Acts case was the "Proceedings against
William Hackett, Captain of the Sloop Indeavor of Salsbery in the
County of Norfolk in New England," at a special court held in
Elizabethtown by commission from the New Jersey Governor on May
16, 1671. Keasbey, supra, at 84; Presser, supra, at 291 (citing
1 N.J. Archives 64 (1880)). The Governor sought to forfeit the
Indeavor and its cargo because the ship had been loaded and
unloaded at Woodbridge, contrary to the Navigation Acts. Ibid.
After retiring three times, the first jury asked to be discharged
because "the matter committed to them is of too great weight."
Presser, supra, at 291. A second jury, empaneled the next day,
however, found the defendant guilty and entered a judgment of
forfeiture. Keasbey, supra, at 85. The significance of the
forfeiture actions in The Dolphin and The Indeavor is not that
the juries reached different verdicts, but that both actions
proceeded before juries.
The colony of New Jersey, moreover, employed forfeiture as a means of enforcing provincial laws concerning customs duties and the exportation or importation of commodities. Like the Navigation Acts, these early customs statutes were triable “in any Court of Record in this Province by Bill, Plaint or Information.” See, e.g., "An Act for preventing the Waste of Timber, Pine and Cedar Trees and Poles within this Province of New Jersey, and to lay a Duty Upon all Pipe & Hogshead Staves exported out of the same to any of the Neighboring Colonies," (passed March 11, 1713/14), II Laws of the Royal Colony of New
Jersey: 1760-1769 131-33 (providing for forfeiture of any Pipe or
Hogshead staves on which export duty not paid "in any Court of
Record with this Province"); “An Act to lay a Duty on Wheat,
Wheat-Meal, Staves and Heading of all sorts, and Bolts whereof
Staves or Heading may or can be made,” (passed Aug. 23, 1725), II
Laws of the Royal Colony of New Jersey: 1703-1745 331-32
(providing for forfeiture of all wheat, wheat-meal, staves,
heading and bolts for failure to pay duty “in any Court of Record
in this Province”); “An Act for Preserving of Timber in the
Eastern Division of the Colony of New Jersey, and all Sorts of
Trees in the Bounds of the Pattent or Charter of the Township of
Bergen that lies in Common,” (passed Dec. 2, 1743), II Laws of
the Royal Colony of New Jersey: 1703-1745 at 575-78 (providing
for forfeiture of timber to be exported for failure to pay duty
in “any Court of Record in this Province”); “An Act to encourage
the direct Importation of Rum from the West-Indies, and such
Wines as may lawfully be imported from the Places of their
Growth, Product and Manufacture, into the Eastern Division of New
Jersey,” (passed Dec. 2, 1743), II Laws of the Royal Colony of
New Jersey: 1703-1745 at 579 (providing for forfeiture of wine
and rum imported without duty paid in “any Court of Record within
this Colony”). Forfeiture actions under these laws, like those
under the Navigation Acts, would have proceeded in the common-law
courts. As the State concedes, such actions, if heard in the
common law courts, would have been tried to juries.
While a colony, New Jersey enacted a series of forfeiture statutes to punish violations of fish and gaming statutes. See, e.g., “An Act for Preserving Oysters in the Province of New-Jersey,” (passed March 27, 1719), Samuel Nevill, Acts of the General Assembly of the Province of New Jersey 86 (1719) (providing for forfeiture of any canoe, flat, scow, boat, or other vessel used by non-residents of New Jersey for raking oysters before "two of His Majesty's Justices of Peace . . . of the County where such Seizure shall be made” who “shall give Judgment against, and Condemn the same"); “An Act to Regulate the Fishery within that part of the Eastern Division of this Colony, from the Mouth of the Raritan River northward,” (passed May 10, 1768), Allinson, Acts of the General Assembly of the Province of New Jersey 309 (providing forty shilling fine to be recovered in action before justice of peace for fishing with nets in small spawning rivers and creeks; providing further for seizure and disposition of "contraband" nets in summary procedure before justice of peace); “An Act entitled An Act to prevent Killing of Deer out of Season and against Carrying of Guns and Hunting by Persons not Qualified,” (passed 1722), Nevill, supra, at 100 (providing for fines under forty shillings upon conviction before justice of peace); “A Supplementary Act to the Act entitled An Act to prevent Killing of Deer out of Season and against Carrying of Guns and Hunting by Persons not Qualified,” (passed 1752), id. at 445-53 (providing for forfeiture of steel deer traps in
summary proceeding before justice of peace); “An Act to regulate
the Size of Traps to be hereafter set in this Colony,” (passed
Dec. 5, 1760), IV Laws of the Royal Colony of New Jersey: 1760-1769 52-53 (providing for fines as well as forfeiture and
destruction of heavy steel and iron traps before "any one
Magistrate or Justice of Peace"); “An Act for the more effectual
Preservation of Deer in this Colony,” (passed Dec. 6, 1769), id.
at 582-585 (providing for forfeiture and destruction of steel and
iron traps weighing over five pounds in proceeding before
magistrate or justice of peace); "An Act for the Preservation of
Deer and other Game, and to prevent trespassing with Guns,"
(passed Dec. 21, 1771), Paterson, supra, at 19-22 (providing that
anyone who sets a trap larger than that commonly set for foxes
and muskrats, shall suffer £5 fine, three month imprisonment, and
forfeiture and destruction of trap in proceeding before
magistrate or justice of the peace “without any reference to the
act for trial of small causes in this colony”).
As the preceding statutes indicate, in colonial New Jersey,
as in England, certain forfeiture and penalty proceedings to
enforce police statutes and to punish minor criminal offenses,
such as violations of the fish and game acts, proceeded before
justices of the peace without juries. See Greely v. City of
Passaic,
42 N.J.L. 429, 431 (E. & A. 1880) (noting that
“[P]arliament conferred upon the [justice of the peace] certain
judicial functions, as a means of enforcing the game acts” by “a
summary proceeding, technical in character, of a quasi-criminal
nature, and totally unlike an action at law”); State v. Lakewood
Mkt. Co.,
84 N.J.L. 512, 523 (Sup. Ct. 1913) (holding that
penalty action instituted pursuant to Fish and Game Procedure Act
of 1897 did not include jury trial because “[i]t has been
repeatedly held in this state that in a summary procedure for the
collection of a penalty for violation of a police regulation,
neither party is entitled to a trial by jury”); Carter Bros. v.
Camden Dist. Court,
49 N.J.L. 600, 602 (Sup. Ct. 1887) (holding
that right to trial by jury did not attach in suit to recover
penalty for violation of 1886 “Act to prevent deception in the
sale of oleomargarine, butterine, or any imitation of dairy
products” since violation was petty offense); Shivers v. Newton,
45 N.J.L. 469, 476 (Sup. Ct. 1883) (holding no right to jury
trial in action to recover penalty for violation of 1882 “Act to
prevent the adulteration and to regulate the sale of milk”); Howe
v. Plainfield,
37 N.J.L. 145, 148 (Sup. Ct. 1874) (holding that
jury trial not required before imposition of penalty for selling
intoxicating liquors contrary to city ordinance, reasoning that
“prior to 1776, the legality of convictions before magistrates
for petty offenses and for violations of police regulations
without trial by jury, was unquestioned”); McGear v. Woodruff,
33 N.J.L. 213, 216 (Sup. Ct. 1868) (holding that, prior to 1776,
convictions before magistrates for petty criminal offenses and
violations of police regulations were of frequent occurrence, and
were recognized as part of laws of England).
Only one post-Revolution case cited by the State involved a
forfeiture, as opposed to a penalty. In Haney v. Compton,
36 N.J.L. 507, 523 (E. & A. 1873), the Court of Errors and Appeals
considered a replevin action under a state statute that
authorized civil in rem forfeitures of vessels used to gather
oysters illegally in New Jersey waters. The statute provided for
a forfeiture hearing before a special tribunal consisting of two
justices of the peace. Ibid. The plaintiffs violated the
statute by allowing a non-resident to use their vessel to harvest
oysters. Id. at 521.
In denying plaintiffs a jury trial, the court relied on an
earlier opinion, McGear v. Woodruff, supra,
33 N.J.L. 213, which
involved a prosecution under a municipal ordinance that
prohibited placing refuse in the street. Essential to McGear's
denial of the right to trial by jury was the petty nature of
offense. The McGear court noted that under English law before
1776 magistrates sitting without juries heard cases involving
petty offenses and violations of police regulations. Id. at 216.
The New York courts were quick to perceive that when denying a
jury trial in the forfeiture action, the Haney court incorrectly
analogized such an action to a penalty action before a magistrate
for violation of a municipal ordinance. In a case involving an
oyster fishing statute almost identical to the one at issue in
Haney, the New York Supreme Court sustained the right to a jury
trial. The court reasoned that the Haney court wrongly applied
McGear's exception for petty offenses to an in rem forfeiture
action. Colon v. Lisk,
43 N.Y.S. 364, 371-72 (App. Div.), aff'd,
47 N.E. 302 (N.Y. 1897). To conclude, we are unpersuaded that
the denial of jury trials in Haney and McGear compels a similar
denial in the present case. Cases involving the forfeiture of
innocent property generally resulted in a trial by jury. The
disposition through summary proceedings of petty offenses and
violations of police regulations of cases involving contraband is
best viewed as an exception to the general rule. One 1941
Chevrolet Coupe, supra, 231 P.
2d at 844.
The absence of automobiles from colonial New Jersey does not mean that actions to forfeit them, unlike actions to forfeit other kinds of innocent property, such as ships, would not have been subject to trial by jury. New kinds of property should be treated like their earlier counterparts. One 1941 Chevrolet Coupe, supra, 231 P. 2d at 844; see also 1920 Studebaker, supra, 251 P. at 703 ("There were also many petty offenses against statutes or municipal ordinances which were not triable by jury at the time the Constitution was adopted. . . . In all such cases the punishment was trivial. . . . We find no case, and none has been cited, in which the common-law courts, prior to adoption of our State Constitution, through the exercise of summary powers have sanctioned or upheld the forfeiture of property which may be and ordinarily is used for lawful purposes.") Automobiles are no less innocent in modern society than sailing ships were in
colonial times. New Jersey colonists insisted on jury trials for
the forfeitures of ships and their contents. Automobile owners
are entitled to the same protection today. The forfeiture of
automobiles today, like that of sailing ships in earlier times,
should be subject to the general rule requiring trial by jury.
Doubtless, the right to trial by jury will be an
inconvenience to the State when it seeks to forfeit innocent
property. Mere inconvenience, however, can not justify the
denial of a constitutional right. One 1976 Mercedez, supra, 618
F.
2d at 468 (citations omitted). Other states have found that
the recognition of the right to trial by jury in actions to
forfeit innocent property does not pose a burden to law
enforcement or to judicial administration. Supra at (slip
op. at 9-11). Today, as in the past, the jury often stands as a
shield between the individual and the State. "The right of trial
by jury is an ever-present reminder of our belief in the
importance of the individual." Lyn-Anna Properties Ltd. v.
Harborview Dev. Corp.,
145 N.J. 318, 332 (1996).
We take no position on the issue whether McDermott is
entitled to the return of her Honda. Our holding goes no further
than to state that she is entitled to have that issue determined
by a jury.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion.
NO. A-122 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ONE 1990 HONDA ACCORD, etc.,
Defendant-Respondent.
DECIDED July 15, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY