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August 11, 1981


The opinion of the court was delivered by: TROUTMAN


American courts, as dispute resolution forums, place upon litigants the burden to persuade. *fn1" Often this jurisprudential system forces judges, as arbiters, to rule in favor of either one litigant who urges strict, literal or general application of a law or legal principle as opposed to another litigant who pleads for a spirited or broad interpretation or a specific exception thereto. *fn2" In some situations the accepted legal principle clashes with the equities thereof and produces seemingly inhumanitarian results. *fn3" Other times, as in the case sub judice, the legal principle struggles with logic, precedent and uncertainty. Presently, plaintiff seeks remission of her forfeited automobile, seized in connection with a drug investigation and arrest of her husband. She argues that logic suggests that her lack of involvement in his illegal conduct renders the forfeiture unduly and unfairly oppressive. The Government, moving to dismiss, contends that precedent firmly establishes that the merits of the Attorney General's decision to deny remittance cannot be reviewed by the Court, and hence, it lacks jurisdiction. The element of uncertainty has been supplied by two Supreme Court decisions which can be read to imply an exception to this judicially, not statutorily, conceived notion.

 The common law recognized forfeiture in both civil and criminal cases, and early American law included such statutes, *fn4" although the law "abhors" *fn5" and "disfavors" *fn6" forfeitures and considers then "odious", *fn7" the innocence or good faith of the property owner cannot be asserted as a defense. *fn8" As a matter of fact, the Tariff Act of 1930, as amended, *fn9" affords the Attorney General exclusive authority to remit a forfeiture. His discretion must be exercised within the admittedly broad command of the statute. *fn10" Although the Court may direct him to consider the merits of a petition, *fn11" it has no jurisdiction to review his exercise of discretion. *fn12"

 Against this panoply of precedent, the Supreme Court considered the applicability of the Fifth Amendment privilege against self-incrimination to a forfeiture proceeding. *fn13" Reasoning that forfeiture statutes impose a penalty "only upon those who are significantly involved in a criminal enterprise", the Court concluded that the privilege did apply. *fn14" In Calero-Toledo v. Pearson Yacht Leasing Co., *fn15" the Court explained that the Coin & Currency case did not overrule prior decisions which upheld application of forfeiture statutes to innocent persons not significantly involved in a criminal enterprise. Yet the Court did hold that


it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. *fn16"

 The Court also recognized another exception, where the owner alleged that he was not involved in or aware of the illegal behavior and that he had done all that he reasonably could have been expected to do to prevent the offensive use of his property. *fn17" In both situations the Court opined that "it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive". *fn18" Accordingly, where the property owner includes such allegations the Court apparently has jurisdiction to review the Fifth Amendment constitutional claim. *fn19"

 In the case at bar, plaintiff alleged only that she had "no knowledge or information whatsoever of the use of her motor vehicle for the purposes of the transportation of any narcotic or controlled substance, or any other contraband". *fn20" In light of Calero-Toledo, to withstand a motion to dismiss, plaintiff must also include an allegation that she did all that she reasonably could have been expected to do to prevent the illegal use of her automobile. In the "interests of justice" plaintiff will be afforded an opportunity to amend the complaint. *fn21"

 The Government's motion for summary judgment must also be denied. Plaintiff cannot rely exclusively upon the allegations of her complaint. *fn22" Instead, she must produce evidence by affidavit or otherwise *fn23" explaining the manner in which her husband acquired possession of the car and proving that at the time she did not know or have reason to believe that the car would be used for illegal purposes. *fn24" In other words, the Court cannot determine whether the general rule of forfeiture should apply to plaintiff's automobile until evidence has been submitted relating to whether plaintiff voluntarily surrendered possession of the car to her husband, whether she knew of her husband's possession of drugs and, if she did not know, whether her ignorance was reasonable. *fn25"

 An appropriate order denying the Government's motions will be entered.

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