State v. One 1990 Honda Accord

SYLLABUS
 

(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).

State of New Jersey v. One 1990 Honda Accord, New Jersey Registration No. HRB20D, VIN No. 1HGCB7659LA063293 and Four Hundred Twenty Dollars (A-122-97)

 
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.

I.
 
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).

II.
 
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.

III.
 
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.

IV.
 
A.
 

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.

B.
 
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.

[N.J. Const. of 1776, XXII (emphasis added).]
 
 
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.

C.
 
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.

V.
 
A.
 
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.

[Keasbey, supra, at 177.]
 
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.

B.
 
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.

C.
 
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.

D.
 
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.

VI.
 
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.

SUPREME COURT OF NEW JERSEY
 

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
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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