JURY TRIALS: Requirement for Forfeiture Case

Commonwealth v. One 1972 Chevrolet Van

431 N.E.2d 209 (Mass. 1982)

WILKINS, Justice.

[T]he district attorney for the county of Middlesex commenced this forfeiture action against a 1972 Chevrolet van owned by one Craig MacCormack. On September 17, 1980, MacCormack, while seated in the van, delivered a package containing approximately one gram of cocaine, a Class B controlled substance, to one DiMauro in exchange for $220.

[The forfeiture case] was tried without a jury, and the judge ordered the entry of a judgment of forfeiture of the Chevrolet van to the Commonwealth. The defendant has appealed, not to challenge the principle that forfeiture may be ordered in the circumstances found by the judge, but, relying on art. 12 of the Declaration of Rights, to challenge the denial of a jury trial.... Although we conclude that a jury trial was required, we in no way intend to suggest that the forfeiture of property used in criminal activity is an inappropriate means of punishing and discouraging crime.

The Massachusetts Declaration of Rights, art. 12, provides, in part, that "no subject shall be ... deprived of his property ... but by the judgment of his peers, or the law of the land." We have not regarded a jury trial to be mandated by art. 12 when a proceeding is brought to abate a nuisance. This is because, although it usually has unseverable punitive side effects, nuisance abatement is predominantly remedial in character. A nuisance proceeding, which merely limits the owner's use of his property by enjoining future illegal uses, is, however, different from the forfeiture in the case at bar, which would permanently deprive MacCormack of his van.

In other situations, we have determined that art. 12 requires jury trials. In Commonwealth v. United Food Corp. (1978), we applied art. 12 in the context of a complicated statutory remedy, which included enjoining the nuisance of prostitution, closing the premises for one year, and selling all personalty used in maintenance of the nuisance, with any proceeds in excess of the cost of the proceedings returned to the owner. We held, first, that a jury trial was not constitutionally required in a proceeding to abate the nuisance by enjoining prostitution; but we concluded that the additional statutorily mandated remedies of closure and sale would not in every case be necessary to accomplish the permissible statutory purposes of abating the nuisance and recovering the cost of the proceedings. In other words, those additional remedies might in certain applications be "solely punitive." We held that where a severable portion of a statutory remedy is totally punitive, art. 12 guarantees the right to a jury trial. 1

We deal today with a statutory remedy-forfeiture of a motor vehicle-which is neither clearly remedial nor solely punitive. It is generally recognized that a forfeiture proceeding has the dual purpose of preventing further illicit activity and of imposing a penalty. Forfeiture is punitive because it results in total loss of the property. But it is often also remedial, for like a proceeding in equity to abate a nuisance, it restrains further illegal use of the forfeited item. If forfeitures of all types of property resulted in the same proportion of penal to remedial effects, we might have less difficulty in labeling forfeitures as either largely penal or largely remedial. Because, however, the two aspects are likely to be involved in varying degrees in each forfeiture proceeding, the issue cannot be resolved without considering the type of property forfeited.

In the circumstances of the forfeiture of a motor vehicle not particularly adapted for use in criminal activity, a jury trial is required if requested. Forfeiture of a common vehicle is unlike forfeiture of either (a) items, such as drugs, which are the subject matter of the crime itself, or (b) items, such as stills and certain burglary tools, which are special instruments tailored to the commission of crimes. The van here had no distinguishing quality that made it particularly suitable for use in committing crimes, and its ownership, possession, and use were not crimes themselves. Where a mass-produced object as common as a motor vehicle is involved, the element of punishment certainly becomes dominant, and the preventative quality of forfeiture becomes relatively insignificant, and often nonexistent, so as to make the forfeiture a deprivation of property within the meaning of art. 12. 2 Therefore, a jury trial must be made available in a vehicle forfeiture proceeding under G.L. c. 94C,  47. The forfeiture statutes of the Commonwealth generally require jury trials at some stage of the proceedings. Only in rare instances, of which G.L. c. 94C,  47, is one, has the Legislature provided for a trial without a jury....

We conclude that the owner of the van was entitled to a trial by jury and that the provision in G.L. c. 94C,  47, that purports to provide for a trial without a jury for motor vehicle forfeitures may appropriately be excised from the statute and the balance of the statute allowed to stand.

1. We cured the constitutional defect in the United Food case by granting the judge discretion to refrain from closing the property and selling all fixtures unless those remedies were necessary to abate the nuisance or to recover the cost of the proceedings. Here, because the punitive and preventative aspects of forfeiture are unseverable, and because forfeiture is an all or nothing proceeding, we cannot develop a parallel solution. Commonwealth v. United Food Corp., 374 Mass. 765, 781, 374 N.E.2d 1331 (1978).

2. It seems clear that forfeiture always has an element of punishment. The penal quality of this particular forfeiture proceeding is emphasized by the statutory protection given to the owner of a conveyance that has been stolen from him and to the owner of a conveyance who neither knew nor reasonably should have known of the unlawful use. See G.L. c. 94C,  47(c )(2) and (3). As to the preventative quality of forfeiture, where the subject property is an everyday motor vehicle, in most instances the sequestering of the vehicle has little practical relationship to the prevention of future criminal conduct. The owner usually can find another vehicle with ease. In some cases, particularly those involving the well-organized distribution of drugs, the loss of the vehicle is merely a part of the "cost of doing business" and will have no significant preventative effect.