Nassau County Supreme Court Justice Robert Roberto Jr. invited parties in three separate vehicle forfeiture actions1 to appeal his previous forfeiture rulings in light of the 2nd Circuit’s holding in Krimstock v Kelly. The county forfeiture laws are similar to the New York City statute held constitutionally defective by the 2nd Circuit, which held that due process requires prompt post-seizure hearings.

Many defendants challenged the constitutionality of the Nassau County DUI forfeiture laws since their passage in 1999. According to an article by Leigh Jones, published in the New York Law Review, prior to the 2nd Circuit ruling in Krimstock Justice Roberto generally sided with the county.

Justice Roberto’s earlier rulings that have routinely upheld the county’s vehicle forfeiture law as providing sufficient due process, even for leasing companies whose vehicles are seized because of the lessee’s arrest for driving while intoxicated or ability impaired.

His decision last December referred to a class-action lawsuit that Ford Motor Credit Co. was considering filing as an innocent third party defending against county forfeiture actions. Although the judge’s decision denied the possible class action lawsuit as a basis for granting Ford’s request for extensive interrogatories, he mentioned an argument by Ford’s counsel, which asserts the county’s seizure law as applied may be "disparate, unequal and unconstitutional."

Due to the 2nd Circuit Krimstock ruling Justice Roberto invited a test to the constitutionality of Nassau’s law, calling on the three individuals to seek review of his forfeiture decisions from a court of binding appellate authority under Krimstock.

Justice Roberto wrote that while the 2nd Circuit declined to follow an state Appellate Division First Department decision upholding the city’s statute on similar challenges, until the Second Department makes it’s own determination or the state Court of Appeals rules otherwise, he must follow the First Department’s ruling. "This Court cannot act on the analysis of the 2nd Circuit even if it were certain–which it is not–that the procedures currently in place in Nassau County would run afoul of its analysis."2

Justice Roberto compared Nassau’s law to New York City’s, noting that unlike the city, Nassau provides notice of a possible forfeiture action at the time of seizure. He pointed out that he previously held the county must justify it’s retention of the vehicle to the court "upon any challenge to its possession by the owner," adding that such challenge is "not limited to any particular point in time."

Justice Roberto wrote that although Nassau’s law provides written notice at the time of arrest, it does not contain a provision that notifies the owner of an opportunity to challenge the forfeiture.

In October Justice Roberto had denied a motion by General Motors Acceptance Corporation to dismiss a forfeiture action against an innocent leasing company,3 ruling the law enables Nassau County to seize vehicles from innocent third parties. He relied on forfeiture prosecutors’ favorite Supreme Court case, Calero-Toledo v. Pearson Yacht Leasing Co., which upheld the forfeiture of a yacht leased by customers who brought a small amount of marijuana on board. Justice Roberto determined that innocent lessors are not helpless against the forfeiture action because they are free to buy back the cars at county auctions and sue the lessee for the losses.

Nassau County hired outside counsel Andrew J. Campanelli, of Perry and Campanelli in Garden City, last year to handle nearly 1,600 backlogged forfeiture actions. Campanelli, who receives 26 percent of the proceeds from the forfeited cars he auctions, said that Nassau County typically settles with third-party lessors for about $2,000, but that Ford is "taking a very hard position."

Hopefully we will see more trickle down effects regarding Due Process as lower courts begin implementing the Second Circuit’s Krimstock holding.