LEGISLATIVE FISCAL ESTIMATE

[Third Reprint]

ASSEMBLY, No. 4970

STATE OF NEW JERSEY

218th LEGISLATURE

 

DATED: JANUARY 16, 2020

 

 

SUMMARY

 

Synopsis:

Revises law governing forfeiture of certain seized property.

Type of Impact:

Annual expenditure and revenue decreases to State and local governments.†

Agencies Affected:

Department of Law and Public Safety; the Judiciary; local law enforcement agencies.

 

 

Office of Legislative Services Estimate

Fiscal Impact

 

Annual

 

 

State Cost Decrease

 

Indeterminate

 

 

Local Cost Decrease

 

Indeterminate

 

 

State Revenue Decrease

 

Indeterminate

 

 

Local Revenue Decrease

 

Indeterminate

 

 

 

 

 

         The Office of Legislative Services (OLS) projects that exempting certain types of seized property from forfeiture if there are no criminal charges arising out of or related to the property seizure or if a criminal prosecution arising out of or related to the property seizure terminates with no criminal culpability, would result in indeterminate annual State expenditure and revenue decreases.†

 

         The Judiciary would also receive indeterminate less annual revenue from filing fees.

 

         Law enforcement agencies would also experience an indeterminate annual revenue loss since there will be less proceeds resulting from fewer forfeiture proceedings.†

 

         The OLS lacks sufficient information to quantify the fiscal impacts, as it is unclear how many fewer forfeiture cases would be filed in accordance with the provisions of the bill in any given fiscal year.

BILL DESCRIPTION

 

†††† The bill clarifies when certain seized property, other than prima facie contraband, may be forfeited when there are no criminal charges or when the criminal prosecution terminates with no criminal culpability.†

†††† Under current law, a forfeiture action may be enforced by a civil action for seized property, other than prima facie contraband.† Prima facie contraband refers to controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed or otherwise contraband cigarettes or tobacco products, untaxed special fuel, unlawful sound recordings and audiovisual works and items bearing a counterfeit mark.† A prosecution involving seized property that terminates without a conviction does not preclude forfeiture proceedings against the property.†

††††† Specifically, the bill prohibits forfeiture of seized property, other than prima facie contraband, if there are no criminal charges arising out of or related to the property seizure or if a criminal prosecution arising out of or related to the property seizure terminates with no criminal culpability.† No criminal culpability exists if the prosecution results in an acquittal, a dismissal with prejudice (excluding supervisory treatment), or a finding of not guilty by reason of insanity.†

††††† There are two exceptions to the general rule against forfeiture under the bill.† Forfeiture of the property is not precluded if there is no known owner of the seized property and no person credibly asserts an ownership interest in the seized property.† The other exception is when the State establishes by a preponderance of the evidence that the seized property is cash or a cash equivalent valued at more than $1,000 or seized property other than cash that is valued at more than $10,000.† The bill specifically precludes forfeiture proceedings if the State fails to prove that the value of the seized property exceeds the threshold amounts required for forfeiture.†

††††† Finally, the bill clarifies that in regard to leased seized property, the property is not subject to forfeiture if the prosecutor fails to establish by a preponderance of the evidence that the owner of the property was involved in or aware of the unlawful activity. †If the prosecutor does establish by a preponderance of the evidence that the owner of the property was involved in or aware of the unlawful activity, the property may be forfeited unless the owner establishes by a preponderance of the evidence that he or she had done all that could reasonably be expected to prevent the proscribed use of the property by an agent.†

††††† This bill is identical to Senate Bill No. 3441 (2R).†

 

 

FISCAL ANALYSIS

 

JUDICIAL BRANCH

 

††††† ††††† The Administrative Office of the Courts (AOC) provided information on the amount of forfeiture filings filed in the Law Division, Civil Part of Superior Court (Law Division) and in the Law Division, Special Civil Part of Superior Court (Special Civil Part-DC docket) in 2017 and 2018.†

††††† Civil cases in which the amount in controversy is more than $15,000 are heard in the Law Division. †Cases in which the amount in controversy is up to $15,000 are heard in the Special Civil Part-DC docket. †

††††† In 2017 there were 270 forfeiture filings in the Law Division and 99 of these filings had answers filed.† There were also 3,643 forfeiture filings in the Special Civil Part and 362 of these filings had answers filed.†

††††† In 2018 there were 263 forfeiture filings in the Law Division and 82 of these filings had answers filed.† There were also 3,291 forfeiture filings in the Special Civil Part and 319 filings had answers filed.†

 

 

OFFICE OF LEGISLATIVE SERVICES

 

††††† The OLS projects that exempting certain types of seized property from forfeiture if there are no criminal charges arising out of or related to the property seizure or if a criminal prosecution arising out of or related to the property seizure terminates with no criminal culpability, would result in indeterminate annual State expenditure and revenue decreases.†††

††††† Under the bill, forfeiture of seized property, other than prima facie contraband, is prohibited if there are no criminal charges arising out of or related to the property seizure or if a criminal prosecution arising out of or related to the property seizure terminates with no criminal culpability.† There are two exceptions to this general rule: 1) forfeiture of the property is not precluded if there is no known owner of the seized property and no person credibly asserts an ownership interest in the seized property; and 2) when the State establishes by a preponderance of the evidence that the seized property is cash or a cash equivalent valued at more than $1,000 or seized property other than cash that is valued at more than $10,000.†

††††† The OLS does not have sufficient information to quantify the decrease in annual cases that would result from this bill.† Asset forfeiture cases in which the amount in controversy is up to $15,000 are heard in the Special Civil Part-DC docket.  In 2017 in the Special Civil Part-DC docket 362 out of a total 3,643 forfeiture filings had answers filed.† In 2018 319 out of a total 3,291 forfeiture filings had answers filed in the Special Civil Part-DC docket.† Under the bill, forfeiture would be prohibited if there are no criminal charges arising out of or related to the property seizure or if a criminal prosecution arising out of or related to the property seizure terminates with no criminal culpability and the seized property is cash or a cash equivalent valued at less than $1,000 or seized property other than cash that is valued at less than $10,000.† The 362 forfeiture filings in 2017 and the 319 forfeiture filings in 2018 would include seized property that would be precluded from forfeiture under this bill.†

††††† The OLS anticipates that the decrease in annual cases would result in a decrease in annual expenditures for the Judiciary, the Department of Law and Public Safety, and county prosecutorsí offices, as county prosecutors would have to prosecute less cases and the Judiciary would have a decreased civil caseload.† The OLS also projects that the Judiciary will receive indeterminate less annual revenue from a decrease in court filing fees.† In addition, the OLS projects that law enforcement agencies would experience an indeterminate annual revenue loss since there will be less proceeds resulting from fewer forfeiture proceedings.†

 

 

Section:

Judiciary

Analyst:

Sarita Welsh

Associate Counsel

Approved:

Frank W. Haines III

Legislative Budget and Finance Officer

 

 

This legislative fiscal estimate has been produced by the Office of Legislative Services due to the failure of the Executive Branch to respond to our request for a fiscal note.

 

This fiscal estimate has been prepared pursuant to P.L.1980, c.67 (C.52:13B-6 et seq.).