THEORY OF “COMMON LAW FORFEITURE” OVERRULED IN PENNSYLVANIA
The PA Commonwealth Court has decided the case of Commonwealth v. Justen Irland; Smith and Wesson, 9mm Semi-Automatice Pistol, Serial #PDW0493, No. 448 C.D. 2015 (January 13, 2017), holding that there is no such thing as common law forfeiture in Pennsylvania and that an individual’s property can be forfeited only when the General Assembly enacts legislation that explicitly provides for forfeiture as a penalty for proscribed conduct.
Irland entered a guilty plea to the summary offense of disorderly conduct after he was involved in an incident where he was driving on a road in Adams County and a driver behind him was tailgating his car. In response, Irland displayed his handgun to the driver through the rear windshield of his vehicle, in an apparent attempt to induce the driver behind him to increase the distance between the two vehicles. Someone contacted the authorities, and the local police detained Irland and confiscated the handgun. The Commonwealth charged Irland with simple assault, harassment, disorderly conduct as a third degree misdemeanor, and disorderly conduct as a summary offense. Following his guilty plea to disorderly conduct as a summary offense, the trial court ordered Irland to pay a $200.00 fine.
After his guilty plea, Irland filed a motion for return of the handgun. The Commonwealth subsequently filed a motion for forfeiture and destruction of the handgun based on a theory of common law forfeiture. The trial court ultimately denied Irland’s motion for return of property and ordered that the handgun be destroyed. Irland then filed a timely notice of appeal.
On appeal, Irland contended that there was no such thing as common law forfeiture in Pennsylvania and that his property could only be forfeited pursuant to a statute. Irland also asserted, in the alternative, that the legislature enacted a comprehensive scheme of statutory forfeiture which displaced and superseded common law forfeiture. Irland contended that even if government authority once existed to seize property linked to a crime, it has been superseded by comprehensive statutory authority defining the limits of forfeiture. And. he argued that these statutes would be superfluous if the General Assembly intended to retain common law notions of forfeiture.
The trial court determined that “there is no doubt that Pennsylvania appellate courts currently recognize the existence of common law forfeiture.” The trial court noted that it was not within that court’s province “to forge new legal ground, but simply to apply the law as it has been interpreted by the higher courts.” The trial court also concluded that for purposes of common law forfeiture, there was no qualitative difference between a felony conviction and a summary offense conviction, and found that the Commonwealth established a substantial nexus between the crime committed and the object to be forfeited.
The dispositive question presented on appeal was whether the doctrine of common law forfeiture exists in Pennsylvania and can serve as a legal basis to allow the Commonwealth to forfeit any property with a “nexus” to a crime absent any statutory authority to do so.
Common law forfeiture does not exist in Pennsylvania and the trial court had no authority to order forfeiture of the property, absent a statute that specifically authorized the forfeiture.
In sum, the Commonwealth Court explained that the issue before it was to determine whether, under the common law of Pennsylvania, an individual forfeits property to the government where the conduct has a nexus to – and results in a guilty plea to – the summary offense of disorderly conduct, particularly when there is no statute that explicitly authorizes forfeiture in such a situation. After acknowledging that English common law recognized forfeiture upon conviction for a felony or treason, the Commonwealth Court concluded that “this concept and the broader notion of common law forfeiture was never imported to our Commonwealth.”
The Commonwealth Court first made clear the limitation of the holding of this decision, noting that the discussion and analysis regarding common law forfeiture was strictly limited to those instances where, in the absence of a statute, the derivative contraband (as opposed to contraband per se) is the item that is sought to be forfeited. Contraband per se is property the mere possession of which is unlawful . . . . Heroin and ‘moonshine’ whiskey are examples of contraband per se. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. An example of derivative contraband is a truck used to transport illicit goods.
In this decision, the Commonwealth Court provided an extensive analysis of the issue of common law forfeiture in the Commonwealth and the United States as the concept was historically considered (and rejected) by a majority of the courts throughout the Nation. In doing so, the Commonwealth Court noted that the Commonwealth’s “organic law,” namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790, denounced and effectively abolished any notion of common law forfeiture and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America.
The Commonwealth Court explained the types of forfeiture that existed in the 18th Century as our Nation was forming. In 1776, forfeiture existed in England both at common law and by statute. Specifically, there were three kinds of forfeiture: (1) deodand, (2) forfeiture upon conviction for a felony or treason, and (3) statutory forfeiture. The earliest forfeiture statute in the Commonwealth of PA dated back to 1718 and, by 1791, statutory forfeiture began to take on a more remedial – rather than punitive – appearance. The Court appeared to consider as persuasive the view that “although the colonies generally appear to have adopted most of the English criminal law either implicitly or through legislation, certain colonies instituted statutory reforms designed to soften the punitive effect of the traditional English rules relating to criminal forfeiture. These reforms, however, were ordinarily directed at mitigating the extent of criminal forfeiture and the offenses for which it was a penalty….”
It was against this background, as the Court noted, that it should not be surprising that it is a commonly accepted and wide-spread view that “[s]tatutory civil forfeiture is the only type of forfeiture adopted in this country.”
PA CASE PRECEDENT
The Commonwealth Court analyzed the various opinions of the Superior Court and Commonwealth Court raising the issue of statutory v. common law forfeiture, noting that “we, as a co-equal intermediate appellate court, are not bound by the Superior Court’s precedents, but we may adopt the Superior Court’s reasoning where persuasive.”
The Commonwealth Court cited PA Supreme Court precedent from 1895 wherein that Court concluded that legislative action was necessary to authorize forfeiture. Acknowledging that “our Supreme Court’s decision in Carpenter’s Estate, 32 A. 637 (Pa. 1895) did not specifically deal with derivative contraband, that case made clear that Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790 embody concepts that run counter to and conflict with the idea of common law forfeiture.”
In the final analysis, the Commonwealth Court determined that there was no authority for common law forfeiture in Pennsylvania. After reviewing the PA Constitution, previous decisions of the various courts of the Commonwealth, the secondary authorities and the law review articles on the topic, the Commonwealth Court determined that the authorities appear to be in unanimous accord that common law forfeiture has never existed in America and can only be warranted by express statutory authorization. “[W]e conclude that there is no such thing as common law forfeiture in Pennsylvania and that an individual’s property can be forfeited only when the General Assembly enacts legislation that explicitly provides for forfeiture as a penalty for proscribed conduct.”
Having concluded that common law forfeiture does not exist in Pennsylvania, the Commonwealth Court was, consequently, “constrained to overrule our case law to the extent that it holds to the contrary on the ground that such case law was erroneously decided.” Accordingly, in the matter of Irland’s property, the trial court had no authority to order, forfeiture of the property, absent a statute that specifically authorized the forfeiture.
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