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The Pennsylvania Supreme Court has ruled that common-law civil forfeiture does not exist in Pennsylvania, but stopped short of saying the same for common-law criminal forfeiture, instead leaving that issue for another day.

The justices ruled 6-1 to uphold a unanimous January 2017 decision by the Commonwealth Court en banc in Commonwealth v. Irland, which said the state government has no legal basis, absent statutory authority, for seizing so-called derivative contraband. The Commonwealth Court's decision had reversed an Adams County trial judge's ruling.

Writing for the high court majority, Chief Justice Thomas Saylor said the court agreed with the Commonwealth Court “that there is no historical foundation establishing common law civil forfeiture in the commonwealth and that civil forfeiture of derivative contraband requires statutory authorization.”

“Beginning with the historical record, the Commonwealth Court accurately observed that our intermediate courts' recognition of common law forfeiture was largely based on references to statutory forfeiture,” Saylor said. “Furthermore, the authorities presently forwarded by the commonwealth and its amici do not demonstrate that common law or non-statutory civil forfeiture was embraced by the commonwealth at the time of its establishment or in any period prior to the 1980s.”

Saylor added in a footnote that “criminal forfeiture, as a common law precept, does appear in some authorities as having been employed in Pennsylvania around the time of the commonwealth's founding,” but said that issue was not relevant to the Irland case, which dealt only with “civil derivative contraband forfeiture.”

According to court documents, defendant Justen Irland was arrested in Adams County for brandishing his handgun at a driver who was tailgating his vehicle. Authorities confiscated Irland's gun and charged him with simple assault, harassment, disorderly conduct as a third-degree misdemeanor, and disorderly conduct as a summary offense.

Irland pleaded guilty to the summary offense of disorderly conduct and was ordered to pay a $200 fine, after which he filed a motion for return of his gun, according to court documents. The state, however, filed a motion for forfeiture and destruction of the gun based on a theory of common-law forfeiture, saying it had legal authority to confiscate any property with a substantial “'nexus'” to the crime committed. Adams County Court of Common Pleas Judge Thomas R. Campbell agreed and ordered the gun destroyed.

Irland appealed, arguing that common-law forfeiture does not exist in Pennsylvania and the Commonwealth Court agreed, pointing to the state Supreme Court's 1895 ruling in Carpenter's Estate. The justices in that case found that neither a son who was convicted of murdering his father nor the son's mother, who was convicted of being an accessory after the fact, forfeited their right to receive a share of the father's estate, despite having committed the crimes with the intent of inheriting the estate.

The high court in Carpenter's Estate reasoned that there was no statutory authority for such a punishment.

“The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence,” the Carpenter's Estate court said.

The Commonwealth Court said that while the Carpenter's Estate ruling did not deal specifically with derivative contraband, the decision “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.”

Saylor said that portion of the intermediate appellate court's reasoning missed the mark because those provisions of the constitution applied to forfeiture pursuant to attainder, which in England was a criminal sanction derived from a felony or treason conviction and is a distinct concept from civil forfeiture.

Still, Saylor said, the Commonwealth Court was correct that there is no historical basis for the existence of common-law forfeiture in Pennsylvania. And that dearth of historical evidence seems to negate the argument made by amicus Pennsylvania District Attorneys Association that early forfeiture statutes were intended to provide narrow exceptions to broad common-law forfeiture power, according to Saylor.

Instead, Saylor said, it's more likely those statutes were enacted to expressly allow forfeitures in certain circumstances in recognition that no common-law forfeiture power existed.

Justices Max Baer, Debra Todd, Christine Donohue, David Wecht and Kevin Dougherty joined Saylor in finding that common-law civil forfeiture does not exist in Pennsylvania.

Dougherty, however, penned a concurring opinion noting that he would have also held that common-law criminal forfeiture does not exist.

“I agree that common law criminal forfeiture seems to have 'been employed in Pennsylvania around the time of the commonwealth's founding,'” Dougherty said. “However, I find its disappearance from our jurisprudence for over 150 years until its re-emergence in 1980s-era decisions from the Superior Court—in cases which relied on our jurisprudence regarding statutory forfeiture—supports a conclusion that common law criminal forfeiture ceased to exist in the commonwealth's earliest days.”

Justice Sallie Updyke Mundy, meanwhile, wrote a dissenting opinion, arguing that under the Supreme Court's own 2014 ruling Commonwealth v. Allen, Irland's motion for return of his property was untimely because it was filed more than 30 days after sentencing, meaning the trial court did not have jurisdiction to rule on it.

Adams County District Attorney Brian R. Sinnett said his office never viewed the issue in this case as having to do with civil forfeiture. Instead, he said, it began as an attempt by the government to destroy an item that was used to commit a crime, which is permitted under Rule 588 of Criminal Procedure.

Sinnett said it seemed like the Commonwealth Court was simply looking for an opportunity to address common-law forfeiture and used the Irland case as a vehicle to do it.

Irland's lawyer, Sean A. Mott of the Adams County Public Defender's Office, did not return a call seeking comment.

(Copies of the 31-page opinion in Commonwealth v. Irland, PICS No. 18-1184, are available at http://at.law.com/PICS.)