Carithers v. District of Columbia

• Decision Date: 08 October 1974
• Docket Number: No. 8026.,8026.
• Citation: 326 A.2d 798
• Parties: William B. CARITHERS ($1,783.00 In United States Currency), Appellant, v. DISTRICT OF COLUMBIA, a municipal corporation, Appellee.
• Court: D.C. Court of Appeals

326 A.2d 798

William B. CARITHERS ($1,783.00 In United States Currency), Appellant, v. DISTRICT OF COLUMBIA, a municipal corporation, Appellee.

No. 8026.

District of Columbia Court of Appeals.

Argued May 22, 1974.

Decided October 8, 1974.

Samuel Bogorad, Washington, D. C., for appellant.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before FICKLING, GALLAGHER and NEBEKER, Associate Judges.

NEBEKER, Associate Judge:

The issue presented by the instant case is whether a claimant has a right to a jury trial when the District of Columbia, pursuant to D.C.Code 1973, § 22-1505(c),¹ brings a libel action to forfeit seized currency allegedly used in an illegal gambling enterprise. Since the claimant-appellant asserted that the currency was neither used nor to be used for gambling purposes, we conclude that there is such a right in this case.

On September 22, 1972, officers of the Metropolitan Police Department entered a premises and seized $1,783 from appellant. Subsequent to the seizure, a libel action, as authorized by section 22-1505(c), was initiated seeking condemnation and forfeiture of the seized currency. A motion by the government to strike claimant's jury demand was granted. Trial was before the court and the seized currency was forfeited to the District of Columbia.

The Seventh Amendment to the Constitution provides, in pertinent part:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of jury trial shall be preserved. . . .

It has long been recognized that this amendment is applicable to judicial actions of the courts in the District of Columbia. See Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899).

The obvious test to apply when deciding whether a litigant is entitled to a jury trial in a given cause of action is to inquire whether at common law his claim is one which entitles him to a jury. See e. g., State Conservation Department v. Brown, 335 Mich. 343, 347, 55 N.W.2d 859, 861 (1952). Resolution of the Seventh Amendment question becomes more difficult, however, when a litigant's cause of action does not arise at common law but rather is specifically created by statute. In such a case, as in the instant one, the test is less straightforward.

Some decisions have reasoned that if a given statutory cause of action was not in existence at common law, there is no right to jury trial in such a proceeding absent specific statutory provision for it. See e. g., Campbell v. State, 171 Ind. 702, 87 N.E. 212 (1909). This literal approach has been widely criticized, however. For example, in State v. 1920 Studebaker Touring Car, 120 Or. 254, 251 P. 701 (1926),² the court, in discussing the point at some length, remarked:

It is argued that these proceedings concern matters in respect to prohibitory laws enacted since the adoption of the Constitution, and for that reason are not within the guaranty of the Constitution, and that controversies concerning violations of them may be disposed of by the courts in any manner the Legislature sees fit to adopt. The answer to this contention is that the constitutional right of trial by jury is not to be narrowly construed, and is not limited strictly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise. [Id. at 263, 251 P. at 704.]

In accord with the above is People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832 (1951), a case in which the Supreme Court of California held that a California statute which provided for summary forfeiture of an automobile allegedly used to transport marijuana unconstitutionally deprived the claimant of his right to a jury trial. In discussing the Seventh Amendment problem, the court stated:

In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case — the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizalie at law. [Id. at 299, 231 P.2d at 843-844.]

Recently the Supreme Court in Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), approved this analytical approach in holding that a stockholder was entitled to jury trial of the essentially legal claims in a derivative suit against the directors of a corporation despite the fact that the form of the action itself was a creature of equity. "The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action." Id. at 538, 90 S.Ct. at 738 (footnote omitted). See also Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).

Having thus established the test, it becomes necessary to determine the nature of the rights at stake in the instant proceeding. The court in People v. One 1941 Chevrolet Coupe, supra, stated:

Although the suit by the state is nominally in rem against the vehicle itself, in reality it is directed against those who have property interests in the vehicle. The automobile is not itself an of fender but has merely been used[³] in the commission of an offense. The statute operates to transfer property rights in the automobile to the state, as a penalty against the owners for this misuse. [Id., 37 Ca1.2d at 302, 231 P.2d at 845 (footnote supplied).]

That which was said above concerning the automobile is equally applicable to the currency seized in the instant case. The California court was careful to emphasize for Seventh Amendment purposes the distinction between summary forfeiture of contraband per se (e. g., narcotics) and property which only becomes illegal if used in an illegal manner. Cf. Moore v. Brett, 193 Okl. 627, 137 P.2d 539 (1943) (partial dissent of Arnold, J.). Rejecting the reasoning of cases (see, e. g., Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894)) which attached little import to this distinction, the California court stated:

Automobiles, carriages, wagons, horses, and mules [and we would include currency], that are ordinarily used for lawful purposes, cannot be classified with narcotics, gambling paraphernalia, counterfeit coins, diseased cattle, obscene books and pictures, decayed fruit and fish, unwholesome meat, infected clothing, or other contraband, which are ordinarily used for an unlawful purpose, and are public nuisances per se. While property kept in violation of law which is incapable of lawful use and declared to be a nuisance per se may be forfeited without a trial by jury under the police power, it does not follow that property ordinarily used for lawful purposes — innocent property — may be forfeited without a trial by jury where an issue of fact is joined as to whether the property was being used for an unlawful purpose or is to be taken from an innocent owner. There is no general constitutional right to a jury trial in actions for the seizure and forfeiture of contraband articles.

But property is not contraband or a public nuisance merely because it was [allegedly] instrumental in the commission of a public offense. [People v. One 1941 Chevrolet Coupe, supra, 37 Ca1.2d at 298, 231 P.2d at 843 (footnotes omitted).]

Other thoughtfully written opinions agree with this reasoning. See e. g., Keeter v. State ex rel. Saye, 82 Okl. 89, 198 P. 866 (1921), and State v. 1920 Studebaker Touring Car, supra.

It should be noted here that People v. One 1941 Chevrolet Coupe, supra, has been criticized for engaging in inapposite historical analysis by analogizing the instant type of forfeiture proceeding with early English forfeiture proceedings on land relating to the trade and revenue laws which were entertained by jury trial in the Court of the Exchequer. (See Note, 25 So.Calif.L.Rev. 141, 144 (1951).) Such criticism, regardless of whatever legitimate historical points it may raise, misses the crux of the Seventh Amendment test as espoused by Ross v. Bernhard, supra. That is, it cannot be expected that a perfectly congruent analogy can be drawn between various common-law causes of action and the instant statutory one, nor would such an analogy necessarily be determinative if it could be drawn. Rather, the deciding factor is the nature of the rights at issue.

We are persuaded that the nature of the instant statutory provision constitutes a procedure for depriving claimant of his property rights. Accordingly, strict procedural safeguards must be afforded.

"Where a proceeding is authorized which may result in a judgment that operates upon the property of the individual, either by way of forfeiture or by means of execution, the uniform rule of law has always been that, before such judgment can pass, the individual is entitled to a jury trial, unless he waives the same." . . . [State v. 1920 Studebaker Touring Car, supra, 120 Or. at 260, 251 P. at 703, quoting from Colon v. Lisk, 13 App.Div. 195, 204, 43 N.Y.S. 364, 370 (1897).]

Notwithstanding the above, the court recognizes the universally accepted rule that a jury trial may be bypassed when the court exercises its discretion in equity to abate a nuisance per se. See, e. g., Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887). See, also Annots., 50 A.L.R. 97 (1927) and 17 A.L.R. 568 (1922). It is noted that unlike other statutes at issue in various cases (e. g., Lawton v. Steele, supra), the instant statute does not specifically characterize the various items subject to forfeiture as a nuisance. But we agree with the following statement of the court in Keeter v. State ex rel Saye, supra, 82 Okl. at 93, 198 P. at 870:

It is true that it is not necessary in every case that a jury trial be granted in order to constitute due...