Pennsylvania’s highest court has filled in the blanks on how to approach issues in forfeiture cases that are not addressed by the Controlled Substances Forfeiture Act.
In a unanimous opinion issued Nov. 19 in Commonwealth v. All That Certain Lot, the state Supreme Court said the entry of summary judgment pursuant to the Rules of Civil Procedure did not conflict with the Forfeiture Act.
The decision reversed that of the Commonwealth Court and reinstated the trial court’s entry of summary judgment.
“In such circumstances, applying the Rules of Civil Procedure to forfeiture proceedings will provide guidance and regulate practice,” wrote Justice Max Baer for the court. “In contrast, the [Commonwealth Court] plurality’s approach would … create a procedural vacuum and leave parties and the trial courts without guidance or procedure for any issue not addressed by the Forfeiture Act which may arise in the course of forfeiture proceedings.”
Gregory Palazzari was arrested in 2009 and pleaded guilty to multiple sales of cocaine in 2010. The Attorney General’s Office petitioned the trial court for forfeiture of his land in State College, Pa., where there was a gas station known as Greg’s Sunoco. Following a discovery in which the state determined that Palazzari was the owner of the land, the prosecution moved for summary judgment, arguing that there was no genuine issue of material fact.
Palazzari opposed the motion, arguing that summary judgment was improper because the Rules of Civil Procedure are not applicable to forfeiture actions. But the trial court granted the summary judgment, reasoning that there are gaps in the Forfeiture Act, Pennsylvania courts have characterized forfeiture proceedings as civil and they have used the Rules of Civil Procedure to fill the gaps in the Forfeiture Act.
Following an appeal from Palazzari, the Commonwealth Court overturned that decision, saying, “Although forfeiture proceedings are ‘nominally’ civil, they are, when considered in their totality, more properly characterized as quasi-criminal punitive proceedings, and should be treated as such.”
The state appealed to the Supreme Court, arguing that requiring a jury trial in all forfeiture cases, even those with no issues of fact, would be wasteful.
The Supreme Court said that while the act requires the court to set a time for a hearing, that requirement only applies when the property owner files a claim that he or she has a right to possession.
“Even where a property owner files an answer raising a right of possession, it does not follow that a hearing is necessarily required,” Baer wrote. “The law does not mandate useless or wasteful acts.”
J.J. Abbott, a spokesman for the Attorney General’s Office, said the office appreciated the court’s ruling but he declined to comment further on the case.
Steven P. Passarello, an Altoona, Pa., attorney representing Palazzari, did not return a call seeking comment.
Change in Procedure
Brian M. Fishman, a Philadelphia criminal defense attorney with a special interest in forfeiture, said the decision is troubling for these types of cases.
“No one knows exactly where these cases fall,” he said. “It’s kind of in this Neverland of law.”
With this decision, Fishman said, it remains unclear when attorneys should follow which rules. In his view, he said, it takes away the right to a jury trial in forfeiture cases.
“It’s one of those slippery-slope kind of precedents where you have to be careful,” said Fishman.
In the Supreme Court opinion, Baer mentioned several other cases in which appellate courts rejected the argument that defendants in forfeiture proceedings should get the same protections as they would have in criminal proceedings.
For example, criminal burden of proof and the right to appointment of counsel do not apply in a forfeiture proceeding, he wrote.
“Although in rem forfeiture proceedings must comport with due process of law, property interests are generally afforded less due process protections than liberty interests,” Baer wrote.
The court also acknowledged that the U.S. Supreme Court has applied Fourth and Fifth amendment protections to forfeiture cases, but said that does not transform them into criminal proceedings.
The U.S. Supreme Court has also “held that forfeiture does not constitute punishment for purposes of the double-jeopardy clause,” Baer wrote.
Justin J. McShane, a criminal defense attorney at The McShane Firm in Harrisburg, Pa., said the decision represents a change for property-related forfeiture cases in Pennsylvania. But he said he does not expect to see a major transformation in how cases proceed.
“I think it’s a great case from the point of view of confirming what a lot of us in this area of law thought the law was,” he said. “I don’t know if this is going to tremendously shift the landscape, at least here in Harrisburg.”
McShane said he was also troubled by the idea that some might lose their ability to go to trial, but in his experience, few forfeiture cases made it to trial before this decision.
Joseph N. Gothie, a criminal defense lawyer at the Gothie Law Firm in York, Pa., said the decision creates opportunities for alternatives to trial that the Rules of Civil Procedure clearly allow and the Forfeiture Act does not address. The opinion makes sense, he said, and creates a “workable patch” for holes in the act.
“Defense counsel who are upset that a door is closed on mandating a jury trial even where there are no disputed facts should consider the other doors that are opened, like discovery, depositions and preliminary objections,” Gothie said in an email to the Law Weekly. “Lawyers representing citizens in CSFA cases should be mindful of their pleadings and what they need to do to develop a record that supports that there are material facts in dispute.”
For example, he said, in Palazzari’s case, the state engaged in discovery and the defense was able to do the same.
Gothie said he is concerned with the possibility that standards in summary judgment cases might erode over time, particularly in cases involving small amounts of money or small properties. But, he said, he expects the courts to use appropriate levels of scrutiny.
“It’s still a matter that deserves to be evaluated fairly and fully,” Gothie said.