[Proposed amicus brief in Carol Thomas’ New Jersey case - never filed (caption omitted)]
STATEMENT OF INTEREST OF AMICUS CURIAE
	Patricia Samples (“Samples”) is an individual and a resident of the County of Sonoma, State of California, who has filed suit against California Attorney General Bill Lockyer to enjoin the enforcement of the revenue disbursement provisions of California’s drug asset forfeiture law, set forth in California Health & Safety Code sections 11469 through 11495.^1  The case is currently pending in Sonoma County Superior Court (Samples v. Lockyer, Case No. SCV - 231307) and in the First District Court of Appeal, Division Two, on pre-judgment appeal from the trial court’s denial of Sample’s motion for preliminary injunction. (Samples v. Lockyer, Case No. A102873.)  Samples seeks no damages and her monetary interest is limited to recovery of attorney fees and costs. 

^1
	Samples proceeds under California Code of Civil Procedure section 526a, which affords her unique standing as a state taxpayers to enjoin the enforcement of the state’s forfeiture statutes, even though she has never had property seized or forfeited and is under no eminent threat of injury from the forfeiture statutes. (See White v. Davis, 13 Cal.3d 757, 762-765 (Cal. Supreme Ct. 1975);Van Atta v. Scott, 27 Cal. 3d 424, 447-551 (Cal. Supreme Ct. 1980).)

	Like New Jersey (N.J.S.A. 2C:64-6a), California allocates forfeiture revenue to prosecutorial and law enforcement agencies –  first by reimbursing them for all investigatory and prosecutorial costs, then by awarding the participating law enforcement agencies 65% and the prosecuting agency 10% of the remaining forfeiture proceeds (Calif. Hlth. & Safty. Code §11489); prohibits employment and salaries from being directly tied to forfeiture revenue, and requires agencies to account for their use of forfeiture revenue. (Id., @ 11469.)  	As does Appellee Carol Thomas’ (“Thomas”) counterclaim, Samples’s suit contends the revenue disbursement provisions of California’s forfeiture law (Calif. Hlth. & Sfty. Code §11489) violates due process by vesting prosecutorial and law enforcement agencies with a pecuniary interest in forfeiture.  Thus, for purposes of participation as amicus curiae, Samples’ interests are congruent with Thomas’ interests.^2

^2
	Concurrent with the filing of this brief, counsel for Samples submits an application to appear pro hoc vice.  Counsel notes that he also represents the appellants in Sohigian, et al. v. City of Oakland, et al. (California First Dist. Ct. of Appeal, Div. 3, Case No. A103031)  and O’Connell v. City of Stockton, et al. (California Third Dist. Ct. of Appeal, Case No.C044400), in which local forfeiture ordinances are challenged on due process/pecuniary interest grounds similar to those at issue here.

	The participation of Samples as amicus curiae will assist this Court in the resolution of a critically important constitutional issue of first impression.  Aside from the lower court decision in this case, no other published or unpublished opinion is known to exist directly addressing the constitutional issue considered here.  The participation of amicus curiae is appropriate to address this issue of “broad implication” (Taxpayers Assoc. of Weymouth Twp. WeymoutTwp., 80 N.J. 6 (1976), cert. denied, 430 U.S. 977 (1977)) and “general public interest.” (Casey v. Male, 63 N.J. Super. 255 (Co. Ct. 1960).)  This is particularly so because the prosecutorial duty of financial impartiality, which is at the center of this case, is a duty owed to the public as much as individual litigants. (See Barrett, et al. v. Union Township Committee, 230 N.J. Super 195, 200 [553 A.2d 62] (N.J. App. Div. 1989) [“It is fundamental that the public is entitled to have its representatives perform their duties free from any personal or pecuniary interest that might affect their judgment.”]; Wyzkowski v. Rizas, 132 N.J. 509, 523 [626 A.2d 406] (1993) [the need for this rule is to ensure that there is no conflicting interest that may interfere with the representative’s impartial performance of his duties as a representative of the public’s interests].)  In this respect, Samples offers arguments on the public interest which the parties and amicus have not, by focusing not only on the potential for innocent property owners and criminal defendants to suffer because of the pecuniary interests of prosecutors and police, but also the guilty to escape just punishment by using forfeiture or monetary settlements in lieu thereof as a bargaining chip in criminal prosecutions, thereby buying prosecutorial leniency.  Individuals such as Thomas suffer immensely because of the financial incentives of forfeiture, but ultimately it is the public trust in the fair administration of justice which suffers the most.  As a member of the public, Samples respectfully asks that her voice be heard as amicus. 

ARGUMENT
I.
THE TRIAL COURT PROPERLY FOUND THAT N.J.S.A. 2C:64-6a 
VIOLATES DUE PROCESS BY VESTING PROSECUTORIAL AGENCIES 
WITH A SUBSTANTIAL PECUNIARY INTEREST IN FORFEITURE
A.  	Introduction and summary of arguments.
	“The truth pronounced by Justinian more than a thousand years ago that, ‘Impartiality is the  life of justice,' is just as valid today as it was then.” (United States v. Brown, 539 F.2d 467, 469  (5^th Cir. 1976).) Of all the circumstances that can affect impartiality and give rise to a disabling bias, “pecuniary interest has long received the most unequivocal condemnation and the least forgiving scrutiny.” (Haas v. County of San Bernardino, 27 Cal. 4th 1017, 1025 (Cal. Supreme Ct. 2002).)  Congress deems it so important that those representing the public interest should be financially disinterested in the decisions they make that it has made it a crime punishable by up to five years in prison for a federal employee – including a prosecutor – to participate in a "judicial or other proceeding" in which the employee or a closely related person or entity has a financial interest. (18 U.S.C. 208, subd. (a).)
	The constitutions of our nation and of our states, the rules of evidence and procedure, and over 225 years of case law promise a full panoply of rights to criminal defendants and forfeiture claimants. But ultimately the guarantee of these rights is no stronger than the integrity and fairness of the prosecutor to whom the criminal and forfeiture investigations and prosecutions are entrusted.  In all his activities, the prosecutor’s duties are conditioned by the fact that he “'is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a ... prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." (Berger v. United States, 295 U.S. 78, 88 [79 L.Ed. 1314, 55 S.Ct. 629] (1935); Young v. U.S. ex rel. Vuitton et Fils S. A., 481 U.S. 787, 802-803  [95 L. Ed. 2d 740, 107 S. Ct. 2124] (1987) [“Young”].)
	The importance to the public, as well as individuals accused of crimes and those with an interest in property sought to be forfeited because of those alleged crimes, that the prosecutor act "with the highest degree of integrity and impartiality, and with the appearance thereof," cannot easily be overstated. (People v. Eubanks, 14 Cal. 4th 580, 589 (Cal. Supreme Ct. 1996) [“Eubanks”].)  “It is fundamental that the public is entitled to have its representatives perform their duties free from any personal or pecuniary interest that might affect their judgment.” (Barrett, et al. v. Union Township Committee, supra, 230 N.J. Super 195, 200 [553 A.2d 62].)  The need for this rule is to ensure that there is no conflicting interest that may interfere with the prosecutor’s impartial performance of his duties as a representative of the public’s interests. (See Wyzkowski v. Rizas, supra, 132 N.J. 509, 523 [626 A.2d 406].)  Conflicting interests can undermine a prosecutor's impartiality, which can affect the prosecutor's assessment of probable cause to proceed, the disclosure of exculpatory evidence and the willingness to plea bargain, as well as implicate the prosecutor's ethical obligation to see that the defendant is accorded procedural justice and that his guilt is decided upon the basis of sufficient evidence. (State v. Storm, 141 N.J. 245, 253 [661 A.2d 790, 794] (1995).)
	The duty of financial impartiality can be traced back to the biblical teaching that "the love of money is a root of all kinds of evil." (1 Timothy 6:10.)  It also has strong roots in this country’s independence: monetary incentives promoting police lawlessness and selective enforcement, in the form of the customs writs of assistance, were among the key grievances that triggered the American Revolution. (Blumenson and Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 75-77, fns. 143-151 (1998) [“Policing for Profit”].)^3 Writs of assistance authorized customs officers to seize suspected contraband and to retain a share of the proceeds, often a third, for themselves and their informants.  From the viewpoint of the Crown, this incentive helped to ensure that goods landing in American ports were taxed or, if prohibited, confiscated.  But for the colonists, it was an outrage that brought with it corrupt officials, lawless seizures, selective enforcement, and fabricated evidence which led to fortunes being put into private pockets. (Ibid.)  From these complaints "the child Independence was born." (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 76.)

^3
	Policing for Profit has been cited in: Buritica v. United States, 8 F. Supp. 2d 1188, 1193-1195 (N.D. CA 1998); United States v. Siriprechapong, 181 F.R.D. 416, 419 [1998 U.S. Dist. LEXIS 17405] (N.D. CA 1998); United States v. One 1997 E35 Ford Van, 50 F. Supp. 2d 789, 796 (N.D. Ill., E. Div. 1999); United States v. One Lot of United States Currency Totaling $14,665, 33 F. Supp. 2d 47, 60 (Dist. of Mass. 1998); and State v. Nunez. 129 N.M. 63, 69 [2 P.3d 264] (N.M. Supreme Ct. 1999).  In 2001, the authors followed up with an update on the status of forfeiture law and the constitutional issues associated therewith. (Blumenson & Nilsen, The Next Stage of Forfeiture Reform, 14 Federal Sentencing Reporter No. 2, p. 76 (Sept./Oct. 2001).)

	These historical teachings and experiences have led to the understanding that an interested prosecutor “undermines confidence in the integrity” of the proceedings (Young, supra, 481 U.S.  at 810), and “creates an appearance of impropriety that diminishes faith in the fairness” of the justice system. (Id., at 811.)  The court and the public “cannot have confidence in a proceeding in which [an interested prosecutor] plays the critical role of preparing and presenting the case for the defendant's guilt.” (Id., at 811) “Justice must satisfy the appearance of justice,”  and a prosecutor with conflicting loyalties “presents the appearance of precisely the opposite.” (Id. at 811-812.) And without "both the appearance and reality of fairness” which "generat[es] the feeling, so important to a popular government, that justice has been done" (Marshall v. Jerrico, Inc., 446 U.S. 238, 242 [64 L. Ed. 2d 182, 193, 100 S. Ct. 1610] (1980) [“Jerrico”]), the confidence of society is lost and “the concept of the rule of law cannot survive.” (People ex rel. Clancy v. Superior Court, 39 Cal. 3d 740, 746 (Cal. Supreme Ct. 1985) [“Clancy”].) 
	The trial court below rightly held that N.J.S.A. Section 2C:64-6a violates the due process clauses of the United States and New Jersey constitutions and is contrary to the United States Supreme Court’s holding in Jerrico, supra, 446 U.S. 238 – as well as numerous other cases which the trial court did not mention, such as Young, supra, 481 U.S. 787, and State v. Storm, supra, 141 N.J. 245, 252-254.  This court should affirm.
II. 	The prosecutorial duty of financial impartiality. 
	In Young, supra, 481 U.S. 787, the High Court held that counsel for a party that is the beneficiary of a court order may not serve as the prosecutor of criminal contempt charges for alleged violations of that order, because he acts under an insurmountable conflict of interest when pursuing the criminal prosecution. (Id. at 802-814.)  The court explained: "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice,  not merely to convict. [¶ ...] As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer." (Id., at 803, citations omitted.)
	Because of their unique responsibilities, prosecutors are forbidden from holding any interest in the outcome of a prosecution, because there interest may be adverse to their duty to ensure that “justice is done.”  (Id., at 803-805.)
The Government's interest is in dispassionate assessment of the propriety of criminal charges for ... [contempt].  The private party's interest is in obtaining the benefits of the court's order.  While these concerns sometimes may be congruent, sometimes they may not.  A prosecutor may be tempted to bring a tenuously supported prosecution if such a course promises financial or legal rewards for the private client.  Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement providing benefits to the private client is conditioned on a recommendation against criminal charges.” (Id., at 805; and see id., at 806 [discussing these temptation as applied to the facts of the case]; and id., at 811 [discussing the “terrible array of coercive methods” available to a prosecutor to obtain information and to force settlements and plea bargains in both criminal and related civil proceedings].)

	“A prosecutor occupies a unique role in our criminal justice system and it is essential that he carry out his duties fairly and impartially.  Where a ... prosecutor ...  also represents an interested party, the possibility that his prosecutorial judgment will be compromised is significant.” (Id. at 826 (Powell, J., with whom Rehnquist, C.J., and O'Connor, J., joined, conc. in part, diss. in part).)  An interested prosecutor “undermines confidence in the integrity of the criminal proceeding” (id., at 810), and “creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general.” (Id., at 811.)  The court and the public “cannot have confidence in a proceeding in which [an interested prosecutor] plays the critical role of preparing and presenting the case for the defendant's guilt.” (Id., at 811) “Justice must satisfy the appearance of justice,”  and a prosecutor with conflicting loyalties “presents the appearance of precisely the opposite.” (Id. at 811-812.) 
	The fact that the judge makes the initial decision that a contempt prosecution should proceed and presides over the proceedings is not sufficient to alleviate the taint of an interested prosecutor. (Id. at 807.)
A prosecutor exercises considerable discretion in matters such as the determination of which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, which persons should be charged with what offenses, which persons should be utilized as witnesses, whether to enter into plea bargains and the terms on which they will be established, and whether any individuals should be granted immunity.  These decisions, critical to the conduct of a prosecution, are all made outside the supervision of the court. (Ibid; and see id., at 813 [“a prosecution contains a myriad of occasions for the exercise of discretion, each of which goes to shape the record in a case, but few of which are part of the record.”].)^4

^4
	The prosecutor’s “discretion to investigate, initiate, prosecute and discontinue [is] broad enough, conceptually and practically, to merit the observation that, overall, more control over individuals' liberty and reputation may thus be vested [in a prosecutor] than in perhaps any other public official.” (People v. Zimmer, 51 N.Y.2d 390, 394 [414 N.E.2d 705, 708] (1980).)  An individual can be as easily affected by an act of prosecutorial omission as from one of commission, from discretion withheld as from discretion exercised. (Id., 51 N.Y.2d at 393-94.) The prosecutor's discretion is greatest before a formal action is commenced because, except where a statute makes prosecution mandatory, he has unfettered and unreviewable discretion to investigate and decide whether to prosecute. (People v. Parmar, 86 Cal.App.4th 781, 806-807 (Cal. App. 2001).)  This necessarily includes the discretion to determine that despite evidence of a criminal violation the matter may be sufficiently addressed without prosecution of a criminal or forfeiture action. (People ex rel. Clancy v. Superior Court, 39 Cal. 3d 740, 749 (Cal. Supreme Ct. 1985) [“Clancy”]; People v. Parmar, supra, 86 Cal.App.4th at 807.)

Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life.  For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice. (Id., at 814.)

	The Supreme Court’s decision in Young is based on its supervisory authority over procedures in the federal courts, and does not reach any constitutional issues (id. at 809, fn.21 (Brennan, J., with whom Marshall, Blackmun, and Stevens, JJ., joined), and id. at 826 (Powell, J., with whom Rehnquist, C.J., and O'Connor, J., joined, conc. in part and diss. in part)); but the majority’s analysis is grounded in due process principles, the dissenters concurred with the majority’s decision to forbid interested prosecutors (id. at 826), and in his concurrence Justice Blackmun concluded that the appointment of an interested prosecutor is a violation of due process. (Id. at 814-815; see also maj. opn. at 808, fn. 19, citing Brotherhood of Locomotive Firemen & Enginemen v. United States, 411 F.2d 312, 319 (5^th Cir. 1969) [appointment of interested prosecutor violates due process].) 
	As stated in State v. Eldridge, 951 S.W.2d 775, 782 (Tn. Ct. App. 1997): “Although Young strongly condemned interested counsel serving as ... prosecutors, the Court avoided the necessity of reaching the constitutional issue since it relied upon its inherent supervisory authority in condemning the practice. (Young, 481 U.S. at 809.)  Obviously, this does not preclude and probably only foreshadows a constitutional bar with respect to the use of interested ... prosecutors. (Citation.) ... [¶] Numerous cases have either found express due process violations or due process implications relating to the participation of an interested prosecutor. (Citations.) We have no hesitation in concluding that the participation ... [of an interested prosecutor] is a violation of the defendant's rights under the Due Process Clause of the [U.S.. and] ... the Tennessee Constitution[s].”
	Amicus CPANJ insists that Young is limited to those factual situations where a lawyer represents two different clients with conflicting interests. (CPANJ Brf. 34-35.)^5 But Young “was especially concerned not only with the conflicting roles of prosecutor and private counsel, but also with the fact that any potential interests of or relationships between the prosecutor and a criminal defendant might compromise the fundamental integrity of the prosecutorial function. ... Indeed, [Young] has become the leading case on general matters of a prosecutor's conflict of interest ....” (New Jersey v. Imperiale, 773 F. Supp. 747, 752 (Dist. of NJ 1991).)  Although Young specifically declined to reach the due process issue (481 U.S. at 809, fn. 21), “the strong language and reasoning of [Young] ... focus[es] on the prosecutorial function and potential conflict of interests, concerns which are equally at issue in due process challenges to the fundamental fairness of a trial. Thus, [Young] is not only analogous but virtually on point in any criminal case where the ... prosecutor has a personal stake or a conflict of interest.” (Imperiale, 773 F.Supp. at p. 17.)^6

^5
	Before addressing the legal failing of this argument, Samples notes that the financial incentives of forfeiture essentially place the prosecutor in the position of representing two “clients”: the public at large –  whose interest is in a dispassionate assessment of the case such that “justice is done” – and the prosecutor’s office (and those of his law enforcement colleagues) – whose financial interest is in securing as much forfeiture revenue as possible, justice be damned.

^6
	That the State claims Imperiale helps their case (Pb27) is one of the many mysteries of their arguments on appeal.

	In Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967), the court relied on due process to invalidate an assault conviction where the state prosecuting attorney represented the alleged victim (Ganger's wife) in the prosecution of a divorce action which was pending at the time of the criminal trial and was based upon the same alleged assault on Mrs. Ganger. (Id., at p. 711.)  The court reasoned:
The prosecuting attorney is an officer of the court, holding a quasi judicial position.  His primary responsibility is essentially judicial – the prosecution of the guilty and the protection of the innocent; his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. (Id. at 714, citations omitted.)

[The] conflict of interest clearly denied Ganger the possibility of fair minded exercise of the prosecutor's discretion.  Not every criminal case goes to trial. Prosecuting attorneys frequently decline to charge, or nol pros, criminal cases –  especially ones arising out of domestic relations.  Aside from the possibility of a favorable charge decision, including nol pros, there is always the prospect of plea bargaining. 

  	Because of the prosecuting attorney's own self-interest in the civil litigation  (including the possibility that the size of his fee would be determined by what could be exacted from defendant), he was not in a position to exercise fair-minded judgment with respect to (1) whether to decline to prosecute, (2) whether to reduce the charge to a lesser degree of assault, or (3) whether to recommend a suspended sentence or other clemency. (Id., at  712-713,  footnotes omitted.)
 
	Similar conclusions have been reached in numerous other cases. (People v. Zimmer, supra,  414 N.E.2d 705, 708-709 [51 N.Y.2d 390, 393-394]; Commonwealth v. Tabor, 384 N.E.2d 190 [376 Mass. 811, 819-820] (Mass. Supreme Ct. 1978); Sinclair v. State, 278 Md. 243, 255, fn.8 [363 A.2d 468] (1976); Commonwealth v. Eskridge, 529 Pa. 387, 392 [604 A.2d 700] (1992); Cantrell v. Commonwealth, 229 Va. 387, 394 [329 S.E.2d 22] (1985); State v. Detroit Motors, 163 A. 2d 227 [62 N.J. Super. 386] (L. Div. 1960); State v. Tate, 171 So. 108 [185 La. 1006] (La. Supreme Ct. 1936);  In re Ridgely, 106 A. 2d 527, 530-31 [48 Del. 464] (Del. Supreme Ct. 1954); In re Davidson, 908 F.2d 1249, 1251 (5th Cir. 1990); Callahan v. Jones, 93 P.2d 326 [200 Wash. 241] (Wash. Supreme Ct. 1939).)
II. 	The duty of financial impartiality extends to forfeiture actions.
	The State insists that the prosecutorial duty of financial impartiality has no application here because forfeiture actions are civil, not criminal, the prosecutor is representing the “plaintiff,” and “there is no due process right to a neutral, impartial civil plaintiff.” (Pb 16; see also Pb 1 [describing the trial court’s holding as “revolutionary” because it concludes “that a civil plaintiff cannot profit from the action he or she has filed”].)  Amicus ACLU is correct to describe this argument as a mischaracterization of both the nature of a forfeiture action and the role of the prosecutor therein. (ACLU Brf. at 4.)
	A forfeiture action is not a general “civil” action brought on behalf of a private plaintiff, it is a “quasi-criminal” action brought in the name of the state on behalf of the people, whose "object, like a criminal proceeding, is to penalize for the commission of an offense against the law." (One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 [14 L. Ed. 2d 170, 85 S. Ct. 1246] (1965); State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994) [“The United States Supreme Court has recognized the criminal character of forfeiture proceedings despite its adoption of the civil burden of proof”]; see also Board of Supervisors v. Simpson, 36 Cal. 2d 671, 674-675 (1951) [the civil abatement of a nuisance is penal in nature and “is in aid of an auxiliary to the enforcement of the criminal law," the general object of which is “no different from that of certain penal statutes”].)
	The New Jersey Supreme Court has firmly held that in quasi-criminal cases of this nature, “the need for impartiality extends beyond the judge to the prosecutor.” (State v. Storm, supra, 141 N.J. 245, 252.)  Similarly, in Clancy, supra, 39 Cal. 3d 740, the California Supreme Court extended the duty of prosecutorial financial impartiality to “civil” nuisance abatement actions – which are often just forfeiture actions by another name. (See, e.g., Bennis v. Michigan, 516 U.S. 442 [116 S. Ct. 994, 134 L.Ed. 2d 68] (1996) [state statute authorized vehicle used to solicit prostitution to be “abated” as a “nuisance” – Supreme Court repeatedly describes this as a “forfeiture” and analyzes it accordingly].)  The California Supreme Court reasoned that nuisance abatement actions, like criminal prosecutions, are “a class of civil actions that demands the representative of the government to be absolutely [financially] neutral. ” (39 Cal. 3d 740, 748.) Therefore, “[a]ny financial arrangement that would tempt the government attorney to tip the scale [of justice] cannot be tolerated.” (Id. at 749.)
	Moreover, because of the interplay between the related criminal action and the forfeiture proceeding, additional entanglements come into play which further warrant the need for prosecutorial financial impartiality. (See Clancy, supra, 39 Cal. 3d 740, 748-749.)  This is so because a prosecutor may be may be tempted to bring a tenuously supported criminal investigation and/or prosecution if such a course promises financial rewards in the related forfeiture action (Young, supra, 481 U.S. at p. 805), and a prosecutor has the ability to use the adverse consequences of criminal investigation and prosecution (see id. at p. 814 [“forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life.”]) as leverage in the civil forfeiture proceeding –  by, for example, dismissing or reducing criminal charges in exchange for an agreement to forgo a challenge to the seizure and forfeiture of property. (Young, supra,  481 U.S. at p. 805; Ganger v. Peyton, supra, 379 F.2d at 711-712 [prosecutor offered to dismiss criminal charges in exchange for favorable civil settlement]; State v. Eldridge, supra, 951 S.W.2d 775, 783 [same]; Policing for Profit, supra,  65 U. Chi. L. Rev. 35, 70-74, and The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76,  fns.27-39; Moran, Private Prosecutors in Criminal Contempt Actions Under Rule 42(b) of the Federal Rules of Criminal Procedure (1986) 54 Fordham L. Rev. 1141, 1158-1159; Sidman, The Outmoded Concept of Private Prosecution (1976) 25 Am. U. L. Rev. 754, 793.)
	The prosecutor is free to use public resources and the array of investigatory techniques to rout out additional evidence against the criminal defendant and/or forfeiture claimant, a pursuit based not necessarily on the prosecutor's view of the social importance of the case, but on the institutional financial interest which he and his law enforcement colleagues have in the case. (See Commonwealth v. Eskridge, 529 Pa. 387, 390 [604 A.2d 700, 701] (Penn. Supreme Ct. 1992), quoting Commonwealth v. Dunlap, 233 Pa.Super. 38, 46 [335 A.2d 364, 368] (Penn. Ct. of App. 1975) (Hoffman, J. dissenting).)  As discussed by the Supreme Court in Young, supra, 481 U.S. at p. 811, prosecutors pursuing related criminal and forfeiture actions "have available a terrible array of coercive methods to obtain information," such as "police investigation and interrogation, warrants, informers and agents whose activities are immunized, authorized wiretapping, civil investigatory demands, [and] enhanced subpoena power"  – the misuse of which "would unfairly harass citizens, give unfair advantage to [the prosecutor in the forfeiture proceedings], and impair public willingness to accept the legitimate use of those powers." (Young, supra, 481 U.S. at p. 811, internal citation omitted; see also id., at p. 814 [prosecutors have the "power to employ the full machinery of the state in scrutinizing any given individual."].)
	The fact that a criminal conviction is not necessary for forfeiture under New Jersey law does not lessen the potential for abuse, because a prosecutor would be hard-pressed to abandon prosecution of a defendant without concessions in the related forfeiture action, when a criminal conviction would be conclusive proof of the ground for forfeiture alleged in the forfeiture proceeding. (Commonwealth v. Eskridge, supra, 529 Pa. 387, 390 [604 A.2d 700, 701], quoting Commonwealth v. Dunlap, supra,  233 Pa.Super. 38, 46, 335 A.2d 364, 368 (Hoffman, J. dissenting).)  No means exists in criminal and related forfeiture actions to assure the public that any of the criminal defendants and forfeiture claimants who have settled their cases rather than pay the cost of lawyers and submit their liberty and property to further actual or potential deprivation, and their reputations to further damage, at the hands of pecuniarily interested prosecutors and police, are factually guilty of having committed the underlying crime on which the criminal and forfeiture cases rest. (See Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553, 595 (Cal. Supreme Ct. 1998) (Brown, J., diss.).)  This is especially true because a trial court accepting a criminal disposition which involves the forfeiture of property or monetary settlement in lieu thereof is not statutorily or constitutionally compelled to determine whether the forfeiture or monetary settlement is factually and legally justified. (Libretti v. United States, 516 U.S. 29, 41-43 [133 L. Ed. 2d 271, 116 S. Ct. 356] (1995) (“Libretti”)]; and see id., at pp. 55-56 (Stevens, J. diss.).)
	This does not mean that prosecutors will always be overzealous in their criminal enforcement in order to secure financial rewards in the related forfeiture actions  To the contrary, it is equally likely that prosecutors and police will be underzealous by forgoing meritorious criminal prosecutions if such promises financial rewards in the related forfeiture action – by, for example, dismissing or reducing criminal charges, or accepting a lesser sentence in exchange for concession in the forfeiture action, including a monetary payment in lieu of forfeiture. (Young, supra, 481 U.S. at 805-806; Ganger v. Peyton, supra, 379 F.2d at 711-712 [prosecutor offered to dismiss in exchange for favorable civil settlement]; State v. Eldridge, supra, 951 S.W.2d 775, 783 [same]; Policing for Profit, supra,  65 U. Chi. L. Rev. 35, 70-74, and The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76,  fns.27-39 [detailing studies and investigations showing that agreements to forfeit property correlate to a significant reduction in sentences, especially in cases of wealthy defendants such as drug “king pins”]; and see "Money at the root of deals," Boston Globe at 1, 6 (Sept. 25, 1995) [reporting that district attorneys "have grown dependent on the drug money as a way to help pay their basic operating expenses"].) Such an arrangement impermissibly allows the guilty to escape just punishment by permitting them to buy prosecutorial leniency. (Libretti, supra, 516 U.S. 29, 56 (Stevens, J. diss.); Young, supra, 481 U.S. at 805-806.)
	The parties and amicus have not discussed the interplay between the criminal and forfeiture actions, perhaps because Thomas was never charged in a criminal action – it was her son whose alleged conduct gave rise to the seizure of her vehicle and the filing of a forfeiture action.  As a result, the parties focus almost exclusively on the potential for innocent citizens – such as Thomas – to suffer at the hands of pecuniarily interested prosecutors and police, without fully addressing the equally disturbing potential for guilty criminal defendants to escape just punishment by buying prosecutorial leniency through the related forfeiture action.  Both aspects must be explored because the public’s interest is ensuring that the innocent do not suffer and the guilty do not escape just punishment. (Young, supra, 481 U.S. 787, 802-803.)^7  

^7
	In this respect, amicus CPANJ is grossly mistaken to urge that the financial incentives of forfeiture are congruent with the public interest and to argue in essence –  in the infamous words of Gordon Gecko in the movie Wall Street – that “greed is good.” (CPANJ Brf. 36-38.)  In truth, the financial incentives of forfeiture represent the antithesis of the public’s interest, motivating police and prosecutors to punish the innocent and allow the guilty to escape just punishment when either course promises pecuniary gain. There is nothing “good” about corrupting the very essence of the prosecutorial roll and creating a system which begs for the public’s interest to be ignored in favor of financial rewards.

	That the duty of prosecutorial financial impartiality extends beyond criminal proceedings to forfeiture actions is made clear by Jerrico, supra, 446 U.S. 238, in which the  High Court found that prosecutors need not be as impartial as adjudicators, but are still bound by due process limitations on conflicts of interests:
“We do not suggest ... that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors.  Prosecutors are also public officials; they, too, must serve the public interest .... A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” (446 U.S. at 250 [internal citations and footnotes omitted].)

	Stretching credulity past the breaking point, the State insists that Jerrico was referring only to “administrative” prosecutors, not state prosecutors pursuing forfeiture actions. (Pb19.)  Samples fully agrees with Thomas’ conclusion that the State must have read a different case. (Thomas Brf., 10.)  Nowhere does Jerrico differentiate between prosecutors in civil, administrative, quasi-criminal or criminal actions.  Indeed,  the High Court later cited the above-quoted passage of Jerrico as being consistent with the trend to prohibit interested prosecutors from prosecuting criminal actions (Young, supra, 481 U.S. at p. 808) – which makes no sense if Jerrico only applies to “administrative” actions.^8  

^8
	As Thomas notes, while the State insists Jerrico is inapplicable and thus so is its finding that due process places limits on the partisanship of “prosecutors” (Pb 28-36), Amicus CPANJ begrudgingly concedes Jerrico probably applies (CPANJ Brf. 5-6), but urges that it is distinguishable. Meanwhile, here on the left coast, California Attorney General Bill Lockyer describes Jerrico as “binding” and the only decision “on point,” and argues that it requires the court to uphold the allocation of forfeiture revenue to prosecutors and police. (Samples v. Lockyer, First District Court of Appeal, Div. 2, Case No. A102873, Respondents’ Opening Brief at pp. 2-3, 12-13.)  None of them are right, but perhaps they should try to convince each other before attempting to convince the court.

	The State and Amicus CPANJ go on to suggest that the reason that “administrative” prosecutors are subject to due process limits on their partiality, while “civil” forfeiture prosecutors are not, is that there are substantially more procedural protections available in forfeiture actions, including the alleged greater independence (and presumably competence) of “real” judges – as opposed to administrative law judges (“ALJs”) such as the one which presided over the administrative proceeding in Jerrico.  Thomas has correctly pointed out the flaws in these arguments, not the least of which is that the entire focus in Jerrico is on the acceptable level of bias and partiality for prosecutors – nary a word of the opinion supports the State’s or amicus CPANJ’s arguments regarding the participation of ALJs.  
	Samples adds that the arguments are entirely inconsistent with the Supreme Court’s recognition in Young that the presence of a neutral judge does not cure the participation of an interested prosecutor because of the myriad of discretionary prosecutorial decisions which occur outside the purview of the court (Young, supra, 481 U.S. at 807- 813; see also Ganger v. Peyton, supra, 379 F. 2d at 711-714; Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154, 163, fn.6, 326 N.E.2d 334  (Mass. Supreme Ct. 1975))^9, and the fact that “[e]ven if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life.”  (Young, supra, 481 U.S. at 814.)^10  “For this reason, we must have assurance that ... [prosecutors] will be guided solely by their sense of public responsibility for the attainment of justice,” for they act as a critical neutral buffer between “the private life of the citizen and the public glare of criminal accusation.” (Id. at 814.)^11

^9
	Even if a judge is able to develop a factual record,  prosecutorial discretion "rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake."  (Wayte v. United States, 470 U.S. 598, 607 [105 S. Ct. 1524, 1530, 84 L. Ed. 2d 547] (1985).)

^10
	A conclusion which directly follows from the recognition in Jerrico that the decision to enforce or not to enforce “may itself result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately vindicated in an adjudication.” (Jerrico, supra, 446 U.S. at 249.)

^11
	Similarly, the California Supreme Court has held that the prospect of dismissal or acquittal by a neutral judge or jury does not cure the defect inherent when a prosecutor has a financial interest, because the damage to the defendant arises from having to face an improper arrest and prosecution in the first place. (See Eubanks, supra, 14 Cal.4th at 593-594 [an open investigation or prosecution imposes great hardship even if charges are dismissed]; Hambarian v. Superior Court, 27 Cal.4th 826, 848-849 (2002) (Moreno, J., diss.).)

	Adjusting this language for forfeiture proceedings, the presence of a neutral judge does not cure the participation of a financially interested prosecutor because of the myriad of discretionary prosecutorial decisions which occur outside the purview of the court – such as the decision to seize property, what property to seize, whether to pursue forfeiture, dismiss, settle, oppose a third party claim (such as Thomas’ original claim of innocent ownership), who to call as witnesses and which witnesses to grant immunity –  and the fact that even if a property claimant is ultimately successful in securing the release of his/her property, forced immersion in a forfeiture investigation and adjudication is a wrenching disruption of everyday life.^12  “For [these reasons], we must have assurance that ... [forfeiture prosecutors] will be guided solely by their sense of public responsibility for the attainment of justice.” (Young, supra, 481 U.S. at 814.)

^12
	This is especially true where the State seizes valuable or important property, such as Thomas’ car, as "automobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and recreation as well as to the daily necessities of life" (Coleman v. Watt, 40 F.3d 255, 260-61 (8th Cir. 1994)) and an owner's "ability to make a living" may depend  the "uninterrupted use of an automobile.” (Stypmann  v. City and County of San Francisco, 557 F.2d 1338 1342-43 (9^th Cir. 1977).)

	If the presence of a neutral arbiter cures the participation of a pecuniary interested prosecutor, as the State and amicus CPANJ urge, then the United States Supreme Court in Young, supra, 481 at 807-814, the federal courts in Ganger v. Peyton, supra, 379 F. 2d at 711-714, and Brotherhood of Locomotive Firemen & Enginemen v. United States, supra, 411 F.2d 312, 318-320, and the sister-state courts cited above at page 11 of this brief, would not apply a rule of per se reversal when a prosecutor is found to have had a financial conflict of interest.  In many of those cases, the defendants were prosecuted before a neutral judge AND a neutral jury, yet the courts did not hesitate in reversing their convictions because of the insidious affects of the prosecutor’s financial conflict of interest on the fair administration of justice.   
	Additionally, forfeiture actions are overwhelmingly resolved by settlements (often in conjunction with plea agreements in the related criminal action), so a neutral judge (or jury) rarely has an opportunity to scrutinize the financial interest of prosecutors and police.^13  It is therefore equally as important, if not more so, to have financially disinterested law enforcement officers and prosecutors as a financially disinterested judge. (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 62 [“in a system where few cases ever go to trial,” in most cases “the integrity of the system depends primarily on the fairness of the law enforcement branch.”]; Ganger v.Peyton, supra, 379 F.2d at 712, fn. 4 [“more people are cleared and released by the police themselves than by the entire legal process of arraignment, preliminary hearing, indictment by the grand jury, and trial”].)^14

^13
	Thomas has properly put before this court authority which discusses the many reasons why forfeiture judgments on the merits are so rare, including the absence of appointed counsel, the imbalance of power and skill, Fifth Amendment issues arising from the related criminal investigation or prosecution which often prevent forfeiture claimants and witnesses from testifying in the forfeiture proceedings, and the high costs of defending against forfeiture. (See, e.g., United States v. $191,910.00 in United States Currency, 16 F.3d 1051, 1068-1069 and fns. 36 & 37 (9^th Cir. 1994); and see Thomas Brf. at 32, n. 8.)

^14
	Samples thus disagrees with Thomas’ concession – to the extent it is one – that the availability of a neutral adjudicator “is at most simply one of the factors that courts are to examine in determining whether unconstitutional prosecutorial bias exists.” (Thomas Brf.32, italics added.)  A neutral adjudicator is not a factor which the court should consider in the legal analysis, period.  As Thomas’ counterclaim itself demonstrates, by the time a forfeiture action reaches a neutral adjudicator, the harm to the property owner has already occurred by virtue of the initial seizure and commencement of the action.  A judge cannot turn back the clock.

	The State is thus wrong to suggest that the prosecutorial duty of financial impartiality does not extend to forfeiture proceedings.  It undeniably does.
III. 	Application of the duty of financial impartiality to 2C:64-6a reveals that due process is violated by the prosecutor’s financial interest in forfeiture.	
	Forced to face Jerrico, supra, 446 U.S. 238, the State and amicus CPANJ argue that no due process violation is shown because, as in Jerrico, forfeiture revenue goes to state and local agencies and not to prosecutors and police officers individually. (CPANJ Brf. 3.)^15 “But that has never, in Jerrico ... or any other case, been the end of the inquiry.” (Trial Court Slip Opinion, at 8-9.)

^15
	As a factual matter, Samples agrees with Thomas that forfeiture revenue does benefit individual prosecutors and police officers. (Thomas Brf. 59-61.)  Using revenue to pay for a golf outing and breakfast, for example, has exactly the same affect as if the revenue were paid directly to prosecutors and police officers who then used “their own” money for such expenditures.  Other purchases such as new carpets, office furniture, and televisions make the office setting more enjoyable and thus provide a direct benefit to employees; as do perks such as free travel and accommodations at conventions and retreats. (Ibid.)

	To be sure, a direct, personal financial interest will have a particularly strong tendency to imply extraneous motivation, but it does not follow that only evidence of a direct, personal financial interest will support a due process violation. (Eubanks, supra, 14 Cal. 4th at 595.)  As the California Supreme Court said in Eubanks: “No reason is apparent why a public prosecutor's impartiality could not be impaired by institutional interests, as by personal ones. We have recognized the existence of such an impermissible conflict in a scheme that made the official budget of a public defender dependent on litigation decisions that also affected the interests of the defender's clients (People v. Barboza, 29 Cal. 3d 375, 380 (1981)); in some circumstances, the same might be true of prosecutors. For example, a scheme that provides monetary rewards to a prosecutorial office might carry the potential impermissibly to skew a prosecutor's exercise of the charging and plea bargaining functions. (Citation.)” (Eubanks, supra, 14 Cal. 4th at 596.)^16

^16
	Eubanks addresses the issue of prosecutorial disqualification under California Penal Code section 1424 – which permits a defendant to move for disqualification based on prosecutorial bias, but the standard under Penal Code section 1424 is the same as due process. (Eubanks, supra, 14 Cal. 4th at 596 and fn. 8;  Hambarian v. Superior Court, supra,  27 Cal.4th 826, 833, fn. 4; People v. Snow 30 Cal. 4th 43, 86, fn. 12 (2003).) Indeed, The Massachusetts Supreme Court suggests that Penal Code section 1424's “requirement of a showing of likely prejudice due to a conflict of interest may well impose a burden on a defendant ... that due process considerations do not.” (Commonwealth v. Ellis, 429 Mass. 362, 367-369, fn. 9 [708 N.E.2d 644, 648-649] (Mass. Supreme Ct. 1999).)  So if anything, a disabling conflict of interest is more readily shown under due process standards.

	In People v. Barboza, supra, 29 Cal. 3d 375, the California Supreme Court invalidated a scheme where the Public Defender's office was paid a set sum per month and $15,000 was deposited in a reserve account which was required to be maintained at all times to pay “conflicts” counsel when the public defender was disqualified because of a conflict of interest.  The amount of any deficiency in the reserve account was subtracted from the monthly payment due the Public Defender’s office and deposited in the account.  At the end of each fiscal year, any unexpended balance in the reserve account was paid to the Public Defender’s office, and conversely, the Public Defender’s office was liable for any deficiency in the account. (29 Cal.3d at 378-379.)  
	Pursuant to the contract, the fewer “conflicts” attorneys that were engaged, the  more money was available for the operation of the Public Defender's office.  “The direct consequence of this arrangement was a financial disincentive for the public defender either to investigate or declare the existence of actual or potential conflicts of interest requiring the employment of [conflict] counsel.” (Id. at 379.)  The Public Defender and his deputies were confronted with competing considerations: discovery of any conflicts versus protection of the office’s financial self-interest. (Ibid.)  “No matter how well-intentioned the public defender might be, the contract places him in a situation with grave consequences and implications for  the administration of justice.  Not only is there an ‘appearance of impropriety,’ there is also a real and insoluble tension, created by the contract, between the defender's conflicting interests.” (Id. at 380.)
	In Eubanks, supra, 14 Cal.4th 580, the California Supreme Court held that the reasoning of Barboza applies equally to prosecutors and therefore an impermissible conflict arises from a scheme that makes the official budget of a prosecutor dependent on litigation decisions that also affect the prosecutor’s exercise of discretion or duty to ensure that justice is done. (14 Cal.4th at 595-596.)  Thus, in Eubanks, after reciting the prosecutor’s duty of impartiality (id., at 588-594), the court concluded a $13,000 payment by the alleged corporate victim of trade secrets theft to the district attorney’s office to cover the cost of the district attorney's investigation created an impermissible financial conflict of interest which required disqualification.  (Id., at 594-600; see also id., 600-604 (George, C.J., joined by Mosk, J., conc.).)^17

^17 
	In so holding, the court said: “[A] prosecutor may have a conflict if institutional arrangements link the prosecutor too closely to [another] party ... who in turn has a personal interest in the defendant's prosecution and conviction. ... The tie that binds the prosecutor to an interested [third party] may be compelling though it derives from the prosecutor's institutional objectives or obligations. A public prosecutor must not be in a position of ‘attempting at once to serve two masters,’ the People at large and [another] person or entity with its own particular interests in the prosecution. (Citation.)” (Eubanks, supra, 14 Cal. 4th at 596.)  Similarly, the Massachusetts Supreme Court has said that “a prosecutor [must] be disinterested in the sense that the prosecutor must not be nor appear to be influenced, in his or her exercise of discretion, either by his or her personal interests or by a person or entity to whom the prosecution of a criminal case will or may bring significant benefits.” (Commonwealth v. Ellis, supra, 708 N.E.2d 644, 650.)

	As applied here, this means the court should not only looks to the interest of the prosecutor himself, but also to the interests of the law enforcement agencies with whom the prosecutor must interact and on whom he must rely in order to effectively prosecute criminal and related forfeiture actions. (Parmar, supra,  86 Cal.App.4th at 795-797; Eubanks, supra, 14 Cal.4th at 590, 596; and id. at 601-603 (George, C.J., conc.); Hambarian, supra, 27 Cal.4th 826, 837-838; and id., at 849-852 (Moreno, J., diss.).)  Therefore, if the court accepts the State’s argument that prosecutorial forfeiture revenue must be discounted by the discretionary appropriations made to law enforcement agencies, the court should recognize that the financially strapped law enforcement agencies are just as dependent on forfeiture revenue as the prosecutorial agencies. (See People v. Eubanks, supra, 14 Cal. 4th 580, 602-603 (George, C. J., joined by Mosk, J., conc.) [the issue is the likely influence upon the “financially strapped” prosecutor].)  Far from lessening the financial conflict, discretionary (or mandatory) disbursements to law enforcement agencies increase it: the financially interested prosecutor’s reliance on the financially interested law enforcement agencies, and vice-versa, presents a constitutionally disqualifying bias, squared!

	Similarly, in Wilson v. New Orleans, supra, 479 So.2d 891, 899, 901-902, the Supreme Court of Louisiana struck down a system where a private company which administered a parking enforcement program, including “booting” vehicles of parking violators, received a commission on the fines collected, even though no employee personally profited.  The private company acted in a prosecutorial, not adjudicative, roll because vehicle owners were able to contest the propriety of the “boot” in court. (Id. at 898-899.)  The court noted the record contained no evidence of wrongdoing or prejudice to the plaintiff, but held no such showing was required because the “financial interest disqualifies [the company] as a neutral and detached decision maker” and “necessarily involves a lack of due process.” (Id., at 901-902.)  
	Of the same ilk is Hubbell, Inc. v. City of Bridgeport (Conn.Sup. Ct. 1996) 1996 Conn. Super. LEXIS 281, where the city's tax assessor hired a private firm to review and reassess the personal property taxes owed by taxpayers, and the private firm received a percentage of any increased taxes that were imposed and collected.  The private firm reviewed the personal property taxes paid by Hubbell and substantially increased the taxes owed.  The court found the increase factually unsustainable in large part because the private firm’s financial interest was “so evident that the evidence and testimony it presented is not worthy of belief.”  In a footnote, the court also concludes the financial arrangement violates due process by vesting the private firm – who was, in essence, acting as the de facto tax assessor – with a pecuniary interest in the enforcement process. (1996 Conn. Super. LEXIS 281, *14-*15, fn. 8.)  As in Wilson, the private firm in Hubbell acted in a prosecutorial, not adjudicative, roll because it assessed taxes while the court determined the propriety of the assessments. (Ibid.)
	The reasoning of Barboza, Eubanks, Wilson, and Hubbell follows directly from the due process standard applicable to adjudicators, who can be disqualified based on their “institutional” financial interests as well as their personal interests.  (Ward v. Village of Monroeville, 409 U.S. 57 [34 L. Ed. 2d 267, 93 S. Ct. 80] (1972); United Church of the Medical Center v. Medical Center Commission, 689 F.2d 693, 699-701 (7^th Cir. 1982); Salcido v. Woodbury County, 119 F. Supp. 2d 900, 928 (N.D. Iowa 2000); Meyer v. Niles Township, 477 F. Supp. 357, 362 (N.D. Ill. 1979); Augustus v. Roemer, 771 F. Supp. 1458, 1472-1473 (1991 E.D. LA); see also State v. Anderson, 427 N.W.2d 316 (N. Dak. 1988), cert. denied, 488 U.S. 965, 109 S. Ct. 491, 102 L. Ed. 2d 528 [construing state statute to avoid constitutional due process violation]; 1998 S.C. AG LEXIS 167 [Atty. Gen. Opn. – criminal fees and assessments imposed by a court may not constitutionally be used as a revenue source for funding the court's operations].) 
	The seminal case regarding pecuniary conflicts of interest is Tumey v. Ohio, 273 U.S. 510, 532 [71 L. Ed. 749, 47 S. Ct. 437] (1927) [“Tumey”], in which a mayor-judge was paid, in addition to his regular salary, a certain sum in each case in which he found the defendant guilty of a liquor law violation. The High Court found this a denial of due process:
The mayor received for his fees and costs in the present case $12, and . . . for seven months he made about $100 a month, in addition to his salary. We cannot regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest. [P] ... There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it, but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process  of law. (Id., at pp. 531-532 [89 L. Ed. 2d at p. 758].)

	In addition, as more directly pertinent here, the facts of Tumey reveal that one-half of the fines imposed by the mayor-judge were retained by the village. These funds were used to hire attorneys and detectives to enforce the laws and to pay for village improvements.  On these facts, the Supreme Court found a second violation of due process on the basis that the mayor-judge also had an impermissible institutional interest or "official motive" in helping the village financially. (Id., 273 U.S. at 533, 535.)
	The "possible temptation" and “institutional interests” rules announced in Tumey were extended in Ward, supra, 409 U.S. 57.  There, the mayor-judge had no direct pecuniary interest, but the fines he levied went into the village’s General Fund. Again finding a violation of due process, the Supreme Court stated that the mayor-judge's interest as chief executive officer of the village, responsible to account for village finances, presented a "possible temptation" by which "the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court." (409 U.S. at 60.)  The mayor-judge thus had a disqualifying pecuniary “institutional interest” in the outcome of cases before him.
	The rationale of Tumey and Ward apply equally in the civil and administrative contexts. (Haas v. County of San Bernardino, supra, 27 Cal. 4th 1017, 1024-1027 [“Hass”]; Gibson v. Berryhill, 411 U.S. 564, 578-579 [36 L.Ed.2d 488, 93 S.Ct.1689] (1973); and see Clancy, supra, 39 Cal.3d at p. 747.) As stated in  Jerrico, supra, 446 U.S. 238, the United States Supreme Court has employed the principles of Tumey and Ward “in a variety of settings, demonstrating the powerful and independent constitutional interest in fair adjudicative procedure." (Id. at 243.)  The prevailing rule, as announced in Tumey, is "... that the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter which he was to decide," violates due process. (Tumey, supra, 273 U.S. at 524.)
	This rule was applied in United Church of the Medical Center v. Medical Center Commission, supra, 689 F.2d 693, where the Church challenged the constitutionality of a state statute vesting the Medical Center Commission with the authority to decide whether property conveyed to the Medical Center had been used in violation of restrictions governing the conveyance, and a finding of improper use would result in title to the property reverting to the Commission which would, in turn, receive all money from the sale of such property. (Id., 695-696, 698-699.)  The Church contended this statutory scheme gave the Commission, which serves as the decision-maker in the reverter proceedings, a direct financial stake in the outcome of those proceedings and thus violated due process. (Id. at  699-700.)  The court agreed:
In this case the Commission has a pecuniary interest in the outcome of the reverter proceedings,  because if the Commission finds a [prohibited use], the property reverts to the Commission, without cost to the Commission even though the property has valuable improvements on it; and in the event of subsequent sale of the property, the proceeds redound to the coffers of the Commission. This is sufficient under the Berryhill rule [(see Gibson v. Berryhill, supra, 411 U.S. 564)] to mandate disqualification of the Commission in the reverter proceeding, and require that the reverter proceedings provisions of the statute be held unconstitutional. [fn. omitted.] 
 
[The Commission] attempt[s] to distinguish this case from Berryhill [by] ... argu[ing] that there is no personal benefit to the Commission or the commissioners in the event of reverter. ... [¶] [This] factor [does not] distinguish[ ] this case from Berryhill.  As that Court pointed out, the disqualifying financial stake need not be “direct or positive.” The Court cited Ward v. Village of Monroeville, [supra,] 409 U.S. 57 ..., in which the Court found unconstitutional a procedure whereby a defendant was compelled to stand trial for traffic offenses before the mayor who was responsible for village finances, and whose court provided a substantial portion of village funds.  Thus, as was pointed out in Meyer v. Niles Township, 477 F. Supp. 357, 362 (N.D. Ill.1979), “[the] principle of disqualification applies even if the pecuniary interest is only an indirect outgrowth of a public official's desire to protect official funds.” (689 F.3d at pp. 699-701 [emphasis added].)

 	United Church of the Medical Center thus recognizes, consistent with Tumey and Ward, that an agency’s “institutional interest” in its budget is sufficient to create a financial conflict of interest which violates due process.
	Pointing to Jerrico, supra, 446 U.S. 238, the State and amicus CPANJ contend the standard of Tumey and Ward does not apply because forfeiture prosecutors are not judges and perform “no judicial or quasi-judicial functions,” and  its is the judge, not the prosecutor, who remains the ultimate arbiter of criminal and forfeiture actions. (Jerrico, supra, 446 U.S. at 247.)  But unlike the United States Supreme Court in Jerrico, the California State Supreme Court has embraced the strict standards and principles of Tumey and Ward and said that prosecutors must be “absolutely” financially neutral (Clancy, supra, 39 Cal.3d at 748) and therefore “[a]ny financial arrangement that would tempt the government attorney to tip the scale [of justice] cannot be tolerated” (id., at 749); and has cited Ward and Tumey as examples of situations where prosecutors “can be disqualified for having an interest in the case extraneous to their official function.” (Id. at 747.)  Under the independent scrutiny of the New Jersey constitution, this court should follow California’s lead.
	For a court “to provide an effective forum, both the complainant and the defendant must trust the impartiality of the proceedings. To earn that trust, the prosecutor, like the judge, must be impartial.” (State v. Storm, supra, 661 A.2d 790, 795, bold added.) This is so because “the prosecuting attorney is an officer of the court, holding a quasi judicial position.  His primary responsibility is essentially judicial – the prosecution of the guilty and the protection of the innocent.” (Ganger v. Peyton, supra, 379 F. 2d 709, 714, bold added, cited and quoted with approval in Eubanks, supra, 14 Cal.4th at 596.)  And “the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter which he [is] to decide," is constitutionally disqualifying. (Tumey, supra, 273 U.S. 524, bold added.)^18  

^18
	The rule which Samples advocates under the independent force of the New Jersey constitution is not that prosecutors must always be as impartial as judges, only that they must be as financially impartial as judges.  Thus, to the United States Supreme Court statement in Jerrico that:
 
Prosecutors need not be entirely "neutral and detached." (citation.) In an adversary system, they are necessarily permitted to be zealous in their enforcement of the law. (Jerrico, 446 U.S. at 247.)

	Samples would add: “[But] [w]hile ... [prosecutors] have a duty of zealous advocacy, ‘both the accused and the public have a legitimate expectation that his zeal . . . will be born of objective and impartial consideration of each individual case.’” (Eubanks, supra, 14 Cal.4th at 590, quoting People v. Superior Court (Greer), 19 Cal.3d 255, 267 (1977).)  That expectation is not met when the prosecutor has a financial interest in the outcome of the proceedings. (Eubanks, supra, 14 Cal.4th at 595-596; Clancy, supra, 39 Cal. 3d 740, 745-749; Barboza, supra, 29 Cal. 3d 375, 380-381 [distinguishing Jerrico]; State v. Storm, supra, 661 A.2d 790, 7954-796.)

	The California Supreme Court applied these salient principles in Eubanks, supra, 14 Cal. 4th 580, and Barboza, supra, 29 Cal. 3d 375, thus demonstrating that, like the adjudicators in Tumey, Ward, and United Church of the Medical Center, a prosecutor has a disqualifying financial “institutional” interest even though his interest is only an indirect outgrowth of his desire to protect funding for his office and those of his law enforcement colleagues. (United Church of the Medical Center, supra, 689 F.3d at 699-701; Eubanks, supra, 14 Cal. 4th at 595-596; Barboza, supra, 29 Cal. 3d 375, 380-381.)
	Federal law requires the same conclusion because although Jerrico rejected the application to prosecutors of the strict standard set forth in Tumey and Ward, the High Court emphasized that prosecutors are still bound by due process limitations on financial conflicts of interests:
“We do not suggest ... that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors.  Prosecutors are also public officials; they, too, must serve the public interest .... A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” (446 U.S. at 250 [internal citations and footnotes omitted].)

	In Young, the High Court explained that although the federal standard for finding a conflict of interest may differ slightly with respect to judges and prosecutors, “this difference in treatment is relevant to whether a conflict is found, ... not to its gravity once identified.” (Young, supra, 481 U.S. at 810-811.)  Thus, under federal law, the standards applicable to prosecutors and adjudicators differ slightly in degree, but not in kind.  Once a court concludes a prosecutor is “subject to influences that undermine confidence that a prosecution can be conducted in disinterested fashion,” the court “cannot have confidence in a proceeding in which [the prosecutor] plays the critical role of preparing and presenting the case for the defendant’s guilt.” (Ibid.)
	Accordingly, regardless of whether the court applies the strict standard of “absolute” financial impartiality called for by the California Supreme Court in Clancy or the slightly less stringent standard of Jerrico, it should conclude the incentive for law enforcement and prosecutorial agencies’ to supplement their budgets through forfeiture violates due process by injecting a financial interests into the enforcement process (Eubanks, supra, 14 Cal.4th at 595-596, citing Jerrico, supra, 446 U.S. at 250) which carries a significant potential for “devastating” government abuse. (Libretti, supra, 516 U.S. 29, 43.) 
	Moreover, Jerrico is factually distinguishable because under New Jersey’s forfeiture law revenue goes directly to the prosecutorial and law enforcement agencies as additional funding beyond general budgetary allocations; and thus the challenged provisions are intended to and do actually result in an increase in the funds available to the prosecutorial and law enforcement agencies over the amount appropriated by federal, state and local governments. (Compare Jerrico, supra, 446 U.S. at 246, 250-252.) 
	Additionally, unlike Jerrico, the revenue allocated to the prosecutorial and law enforcement agencies from forfeiture is not limited to the costs incurred in investigating or prosecuting the forfeiture actions, so there is a substantial risk that the prosecutorial and law enforcement agencies will improperly make arrests, seize property, pursue criminal and forfeiture prosecutions, and press for convictions and forfeiture judgments as a means to increase the revenue available to them. (Baca v. Padilla (1920) 190 P. 730, 732, 26 N.M. 223 [prosecutor must not have a financial incentive to “fatten his purse”]; Young, supra, 481 U.S. at 805-806.)  Indeed, “in theory and practice there is no limitation upon the motivation for [budgetary] enlargement to which a ... prosecutor is subject in deciding upon seizure of property.” (Trial Court Slip Opn. at 11.)  This is because there is no statutory or regulatory limit on the dollar amount prosecutorial or law enforcement  agencies receive from forfeiture in a given case or a given budget cycle. (Id., at 8.)  The more property they seize, the more money they get. (Can Something This Easy, Quick, and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution (1994) 39 N.Y.L. Sch. L. Rev. 1, 3-4.)  Forfeiture revenue is therefore limited only by the energy police and prosecutors are willing to commit to seizing and forfeiting property. (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 51, 67-70; and see United States v. James Daniel Good Real Property, 510 U.S. 43, 55-56 and fn. 2 [126 L. Ed. 2d 490, 114 S. Ct. 492] (1993).) And because 2C:64-6a mandates that forfeiture revenue go to prosecutors, prosecutor are assured that the proceeds from forfeiture will go directly to their agencies.  (Compare Jerrico, supra, 446 U.S. 246, 250-252.)
	These factual differences demonstrate that 2C:64-6a is exactly what the High Court had in mind when it warned about the constitutional implications of a scheme which injects a financial interest into the enforcement process. (446 U.S. at 250.)
	In finding that 2C:64-6a violates due process by vesting prosecutors with a pecuniary interest in forfeiture, the trial court distinguishes Jerrico on many of the same grounds as Samples does here, but also compares the percentage of forfeiture revenue to the overall budgets of local prosecuting agencies – finding that percentages of .21% to 7.17% (under the formula most favorable to the state) are likely to affect prosecutorial discretion.  Thomas also presses for a proportionality analysis, although she insists the court should use different figures which result in much higher percentages.  Samples agrees with the ultimate conclusion of the trial court and most of its legal reasoning, as well as the vast majority of arguments advanced by Thomas, but vehemently disagrees with the use of the proportionality test because it is legally and factually inappropriate and leads to false mathematical results which have no bearing on the true measure of prosecutorial financial interest.^19 

^19
	As will be explained, the mathematic results are always falsely low as a measure of the prosecutor’s financial interest.  Thus, if this court agrees with the trial court’s figures and legal conclusion or accepts Thomas’ figures and thereby reaches the same legal conclusion, then there is “no harm, no foul.”  But if the court believes the trial court’s and/or Thomas’ proportionality figures are too low to violate due process, it should consider Samples’ argument that proportionality is a tremendously false measure of prosecutorial financial interest.

	Although Jerrico, supra, 446 U.S. 238, notes the penalty assessments imposed by local branches of the Employment Standards Administration of the Department of Labor (“ESA”) made up approximately 1% of the ESA’s overall budget, the court did not suggest proportionality dictated the outcome and instead pointed to the fact that the ESA routinely returned to the Treasury Department surplus budgetary allocations in an amount which exceeded the overall penalties received (446 U.S. at 245-246) such that the “challenged [penalty] provisions [did not actually] ... result[ ] in any increase in the funds available to the ESA over the amount appropriated by Congress.” (Id., at 246; and see id. at 250-251.)  Equally important, the High Court concluded that no local branch of the ESA could realistically expect to be financially rewarded for its enforcement efforts because the ESA reimbursed local branches in accordance with costs and reimbursement was entirely discretionary. (Id., 246, 250-252.)  Thus, “there were so many unpredictable contingencies between enforcement and increasing [local branch] budget funds” that the possibility of improper financial motivation was “too remote” to violate due process. (Trial Court Slip Opn. at 9, discussing and quoting Jerrico , 446 U.S. at 252.)  Proportionality simply did not enter into the analysis.
	Similarly, in Barboza, supra, 29 Cal. 3d 375, the California Supreme Court did not suggest that the presence of the public defender’s financial conflict of interest was dictated by the fact that revenue from conflict cases made up a constitutionally significant portion of the public defender’s overall budget.  Indeed, the court did not even attempt to quantify the amount of conflict revenue at-issue, much less compare it as a percentage of the overall budget.  Wilson, supra, 479 So.2d at 899, 901-902, and Hubbell, supra, 1996 Conn. Super. LEXIS 281, also do not undertake proportionality analyses.
	Perhaps the best example is Eubanks, supra, 14 Cal.4th 580, where the court concluded a $13,000 payment to the district attorney’s office created an impermissible financial conflict of interest.  Not once did the court mention the size of the overall budget of the district attorney’s office or attempt to assess the $13,000 payment in proportion to the overall budget – which undoubtedly would have revealed an infinitesimally small percentage.  Instead, as Chief Justice George put it, the court asked whether $13,000 was significant to a “financially strapped” prosecutor. (Id., p. 603 (George, C.J., joined by Mosk, J., conc.)^20

^20
	Samples recognizes that there are state and federal decisions which utilize proportionality in assessing the financial interests of adjudicators (some of which the State has cited), but when one traces back those cases to Tumey, Ward and Jerrico – on which they purport to rely for their use of “proportionality – it becomes readily apparent they are using a formula which enjoys absolutely no support in United States Supreme Court jurisprudence.  Tumey does not discuss percentages and Ward and Jerrico do so only in passing, without every relying on the percentages for the conclusions reached. 

	The worst of the bunch is Alpha Epsilon Phi Tau Chapter Housing Association v. City of Berkeley, 114 F.3d 840 (9^th Cir. 1997), where the adjudicative body was funded 100% by the fees imposed upon landlords, but the court – without discussion or explanation – looked only to revenue generated in contested cases to reach a proportionality figure of 5% on which it based its conclusion that no disqualifying pecuniary interest existed. (114 F.3d at pp. 843-848.) This approach is absolutely wrong because the low number of contested cases could very well be the result of the deterrent value of the adjudicator’s heavy bias, and because the opposite result (a due process violation) is reached if more hearings are contested, even though the statutory scheme does not change. (See Rose v. Village of Peninsula, 875 F. Supp. 442, 450-454 (N.D. OH 1995), approved and adopted in Depiero v. City of Macedonia, 180 F.3d 770, 779-783 (6^th Cir. 1999).) Thus, Alpha Epsilon, on which the State relies, is worthy of no deference.

	In any event, as explained next herein, proportionality is ill-suited to test prosecutorial financial interest.

	Moreover, proportionality wrongly relies on forfeiture revenue actually received, when in reality prosecutors and police are motivated by revenue they hope to but do not always actually receive.  (See Haas, supra, 27 Cal.4th at pp. 1020-1034.)^21 Weak cases motivated by financial gain may be weeded out by the court or jury, thereby depriving the prosecutor of the fruits of forfeiture and skewing the revenue numbers so as to hide from mathematical scrutiny the prosecutor’s financial appetite and improper conduct. (See Trial Court Slip Opn. at 11 [noting that revenue generated from forfeiture is restrained by the presence of a subsequent impartial adjudicator].) Other times, financially motivated law enforcement and prosecutorial conduct will be thwarted by intervening events, such as a financially driven investigation, search or arrest which ultimately proves financially fruitless.

^21
	In Hass, the California Supreme Court found a disqualifying pecuniary interest existed based on a system which allowed the County of San Bernardino to select temporary administrative hearing officers on an ad hoc basis and pay them according to the duration or amount of work performed.  The court reasoned that the selection system gave hearing officers an impermissible financial interest in the outcome of the cases they were appointed to decide as their prospects for obtaining future ad hoc appointments depended solely on the county's good will. (Haas, supra, 27 Cal.4th at pp. 1020-1034.)

	As directly pertinent here, the California Supreme Court pointed to evidence in the record that the attorney for the County had stated several times in the presence of the hearing officer that the County would consider employing her again in the future as an administrative hearing officer. (Id., at pp. 1022-1023.)  The County, however, later argued that it never truly intended to hire the hearing officer except for cases involving massage clinics, no such cases had arisen in the 8 years following the case at-issue, and the hearing officer had in fact not been employed by the County following the case at-issue. (Id. at p. 1031, fn. 18.)  The court  flatly rejected the argument, stating:

  	“[N]othing in the record indicates that [the County attorney] told [the hearing officer], before [the hearing officer] made the decision not to recuse herself, that he would consider hiring her only for cases involving massage clinics. ... Nor could [the hearing officer] have known, at the time she made her decision, that the possible future employment mentioned by [the County Attorney] would not in fact materialize.” (Ibid. [bold added].)

	The court went on to explain that to determine whether the hearing officer was biased by her financial interest, the proper focus was to look to the facts as they were known at the time of her decision, not as they later materialized. (Haas, supra, 27 Cal.4th at pp. 1033-1034; and see id., at p. 1031, fn. 18.)

	For example, in the case of Donald Scott the Ventura County (California) District Attorney concluded Los Angeles County Sheriff’s deputies obtained a search warrant based on knowingly false information because of their desire to garner the proceeds from the forfeiture of Scott's $5 million ranch.  No drugs were found on the property and thus no forfeiture action took place, but Scott was shot dead during the raid. The unlawfully procured search warrant, concluded the Ventura County DA, became Scott’s death warrant. (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, pp. 73-76.)^22  Although the California legislature concluded that the Scott case “showcases the dangers of the zeal that may cause law enforcement to overemphasize the revenue-enhancing aspect of asset forfeiture,”^23 using the standard “proportionality” formula results in no pecuniary interest being shown, because no forfeiture revenue was generated.  The formula fails to  reach the proper conclusion because it was the desire to generate forfeiture revenue – not the actual receipt of revenue – which caused law enforcement to overzealously pursue Donald Scott and ultimately murder him.  The formula would similarly fail if Scott had been arrested but never formally charged; charged but not convicted; or convicted but forfeiture was denied because of a statutory defense, such as a claim of innocent ownership by Scott’s wife. Similarly, the formula would be skewed if officers and prosecutors believed the Ranch was worth $5 million but during the course of their investigation or prosecution found it was only worth $50,000; or if the desire to secure $5 million in forfeiture proceeds caused the prosecutor and police to go forward with an unmeritorious case which they otherwise would not have filed, only to later garner a fraction of their hoped-for profits pursuant to a settlement in exchange for dismissal – or no profits at all if their weak case is dismissed out from under them by the court or a jury returns an acquittal.

^22 
	In 2000, Los Angeles County and the federal government settled a wrongful death/42 U.S.C. §1983 action filed by the Scott family for five million dollars. (The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76, fn. 26.)

^23
	June 20, 1993, Senate Committee Bill Analyses of AB 114, as Amended April 29, 1993; May 18, 1993, and May 25, 1993, Senate Committee Bill Analyses of 1993 SB 1158; June 13, 1993, Assembly Committee on Public Safety Bill Analyses of SB 1158; April 20, 1993, Assembly Committee on Public Safety Bill Analyses of SB 1568, as originally introduced.

	The case at bar further exemplifies the imprecision of the proportionality test, because Thomas’ vehicle was not forfeited and thus the prosecution generated no revenue to be included in the proportionality formula.  Thomas’ vehicle just as easily could have been a house, a boat, an airplane, or a vehicle with far more value than a 1990 Ford Thunderbird – all of which would register “zero” in the revenue column of the proportionality test because of the dismissal of the forfeiture action, yet all of which provide sufficient monetary incentive for prosecutors and police to effect an improper seizure and commence an unmeritorious forfeiture action (among other things).
	Unlike an adjudicator who has full control over his financial interests because he is the final arbiter of those brought before him, in the context of law enforcement and prosecutors there are a myriad of events which can prevent financially motivated conduct from reaping its hoped-for rewards.  It is thus potential revenue to be realized from seizure and forfeiture, not the amount actually received, which governs the due process analysis.  (See Haas, supra, 27 Cal.4th at pp. 1020-1034.) But potential forfeiture revenue cannot be readily quantified for purposes of a mathematical proportionality test, because it all depends on what prosecutors and police believed when they acted – which may or may not be an accurate depiction of reality as it was then or later came to be.
	An additional problem with proportionality is that it falsely assumes criminal defendants without significant assets are not affected by the prospect of prosecutorial pecuniary gain, when they are actually tremendously impacted because unlike wealthy defendants they have nothing of value to entice the prosecutor in the plea bargaining process.  (The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76, fn. 27.)  Indeed, learned commentators suggest the best constitutional challenge “may come from the asset-poor defendants who suffer the most in plea bargaining from the government's [financial] conflict of interest.” (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 73.)
	Nevertheless, although forfeiture revenue actually received is not a true measure of the corruptive influence of 2C:64-6a, it provides a starting point for the due process analysis and given the tremendous dollar amounts involved, an ending point as well.  The court does not need to speculate about hoped-for revenue which motivates prosecutors and police but is never realized, because the potential for abuse is readily apparent from the nearly $32 million actually generated from forfeiture between 1998-2000.  In these difficult fiscal times, this amount is far more than is necessary to give rise to the potential that prosecutorial discretion will be affected by the desire for pecuniary gain.  (See People v. Eubanks, supra, 14 Cal. 4th 580, 602-603 (George, C. J., joined by Mosk, J., conc.) [the issue is the likely influence upon the “financially strapped” prosecutor].)
	The court and the public cannot have confidence in forfeiture proceedings because section 2C:64-6a creates an “unseemly” arrangement (Civil In Rem Forfeiture and Double Jeopardy (1986) 82 Iowa L. Rev. 183, 220), and “‘built-in’ conflict of interest” (United States v. That Certain Real Property Located at 632-636 Ninth Avenue, Calera, Alabama (N.D. Ala. 1992) 798 F.Supp.1540, 1551) which is “corruptive” and “creates incentives that evidently require a more-than-human judgment and restraint” (United States v. Funds Held ex rel. Wetterer (2^nd Cir. 2000) 210 F.3d 96, 110), because it places the police and prosecutors in a position where the “smell of money” has the potential to skew their discretionary decisions (United States Currency in the Amount of $150,660.00 (8th Cir., 1992) 980 F.2d 1200, 1208 (Bright, J., diss.)) by tempting them to improperly use forfeiture to generate revenue for their agencies. (Funds Held ex rel. Wetterer, supra,  210 F.3d 96, 110; United States v. $191,910.00 in United States Currency (9^th Cir. 1994) 16 F.3d 1051, 1068-1069 and fns. 36 & 37; Policing for Profit, supra, 65 U. Chi. L. Rev. 35.)  This provides “strong incentives” for “even the most honest” law enforcement agents and deputy City attorneys to “pursue forfeitures for improper purposes” and “encourag[es] seizures [and prosecutions] in marginal cases” to force settlements – and “one can only imagine what kind of encouragement this gives dishonest agents.”(Civil In Rem Forfeiture and Double Jeopardy, supra, 82 Iowa L. Rev. 183, 220.)^24	

^24
	Unfortunately, it is unnecessary to imagine what dishonest agents might do, because financially motivated abuses are well documented. (See, e.g., United State v Reese (9^th Cir. 1993) 2 F.3d 870, 874-880; Policing for Profit, supra,  65 U. Chi. L. Rev. 35, 83; The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76, fn.27; To Protect and Collect: Taking Case Into Custody, Kansas City Star, Jan. 1999 (www.kcstar.com/projects/drugforfeit); Civil Forfeiture Law Are Under Attack, Wall Street Journal, Jan. 14, 1993;  Drug Raids Net Much Valuable Property – and Legal Uproar, Wash. Post, April 1, 1991; Forfeiture Laws Seize National Scorn, Orlando Sentinel, Aug. 2, 1992; How the Long Arm of the Law Can Seize What it Wants, Philadelphia Inquirer, Feb. 18, 1990; Police Work or Piracy?, Louisville Courier-Journal, Oct. 6-7, 1991; Presumed Guilty – The Law’s Victims in the War on Drugs, Pittsburgh Press, Aug. 11-16, 1991; Reigning in Property Seizures by Police, LA Times, May 31, 1993; Small Amounts of Drugs Can Put Drivers’ Cars Behind Bars, News and Observer, July 20, 1990; Special Report: Abusing}plain  Forfeiture Laws; Are Seizures “Legalized Theft?”, USA Today, May 18, 1992; Where the Innocent Lose, Newsweek, Jan 4, 1993.)

	The financial conflict of interest allows pecuniary benefits to flow to prosecutorial and law enforcement agencies in much the same way benefits flowed to the mayor/judge in Ward, supra, 409 U.S. 57, and thereby creates an incentive for the prosecutor and police to overzealously and, perhaps, unconstitutionally pursue forfeitures. (The Plight of the Minority Motorist (1994) 39 N.Y.L. Sch. L. Rev. 49, 52-54, 64; Michele M. Jochner, Illinois Bar Journal (1999) 87 Ill. B.J. 78, 79; Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 56, 65-66, 83.)
[A] conflict[ ]  of interest and [other] policy problems ... arise when law enforcement and prosecutorial agencies reap [a] financial bounty from the forfeiture decisions they make. Decisions regarding whose property to seize, and how to deal with citizens whose property has been seized is too often dictated by the profit the agencies stand to realize from the seizures. (Civil Asset Forfeiture Reform Act, Hearings on HR 1916 before the House Committee on the Judiciary, 104th Cong, 2d Sess 310 (July 22, 1996) [prepared statement of E.E. Edwards, III, David B. Smith, and Richard J. Troberman, Co-Chairs of the National Association of Criminal Defense Lawyers Asset Forfeiture Abuse Task Force].)

Financial gain is the obvious motive for many crimes. Ironically, this motive also explains the problematic behavior of law enforcement agencies involved in civil asset forfeiture. ... Giving law enforcement agencies a portion of the assets that they seize ... leads to questionable practices and overzealous pursuit of forfeitures, to the detriment of the public. (Follow the Money, supra, 90 Calif. L. Rev. at 1635, 1646.)

The inherent defect of civil asset forfeiture lies in its financial incentives. Because it rewards law enforcement agencies financially in proportion to the value of assets seized, civil asset forfeiture distorts law enforcement objectives, encouraging agencies to focus on maximum financial gain rather than criminal deterrence. [¶¶ ...] Procedural reform of the [forfeiture] process ... will promote little actual change in the absence of a transformation of the financial incentives that motivate law enforcement .... (Id., at 1664, 1672.)

[T]he ease and profitability of forfeiture have refocused law enforcement away from apprehension and investigation of criminals to grabbing property. [¶¶ ...] Police actively have set out to create criminal opportunities in order to forfeit property, and they have pursued weak and questionable cases.(Runaway Civil Forfeiture, supra, 39 N.Y.L. Sch. L. Rev. 1, 43, 44.)
 
With facilities, cruisers, computer and other equipment, salaries and positions sometimes dependent on how much money can be generated by their own seizures, police and prosecution agencies ... routinely operate under a conflict between their economic self-interest and traditional law enforcement objectives. (The Next Stage of Forfeiture Reform, supra, 14 Fed. Sent. R. 76.)

	Section 2C:64-6a injects a financial interest “which brings constitutionally irrelevant and impermissible factors into the prosecutorial decision-making process” (Eubanks, supra, 14 Cal.4th at 596; Jerrico, supra, 446 U.S. 238, 250), and thereby creates a financial conflict of interest which is so grave as to violate due process. Paraphrasing the California Supreme Court’s decision in People v. Barboza, supra, 29 Cal. 3d 375, 380-381 – whose reasoning applies equally to prosecutors (Eubanks, supra, 14 Cal.4th at 595-596):
The prosecutor’s budget and those of his law enforcement colleagues are directly affected by his determinations to seek forfeitures or monetary settlements in lieu thereof; which in turn are directly affected by his decision to file, prosecute and dispose of criminal actions. No matter how well-intentioned the prosecutor might be, the monetary incentives place him in a situation with grave consequences and implications for the administration of justice.  Not only is there an "appearance of impropriety," there is also a real and insoluble tension between the prosecutor’s conflicting interests to do what justice requires and his interests in the budget of his office and the offices of his law enforcement colleagues.

	Section 2C:64-6a creates a contingency fee system in which law enforcement and prosecutorial agencies are paid for seizing property and securing an order of forfeiture or  settlement. Such a system “ought never to be permitted” (Price v. Caperton,  62 Ky. 207, 208 (Ky. App. 1864)) because it injects into the prosecution of a forfeiture case (and the related criminal case as well) a prosecutor whose institutional interests are best served by securing forfeiture or a settlement (and the conviction of the accused in the related criminal case), regardless of the question as to whether or not the defendant/claimant is guilty or innocent. (Baca v. Padilla, supra, 190 P. 730, 731-732; Commonwealth v. Eskridge, supra, 529 Pa. 387, 390; 604 A.2d 700, 701.)
	This does not mean that prosecutors will always be overzealous in their criminal enforcement in order to secure financial rewards under section 11489.  To the contrary, it is equally likely that prosecutors and police will be underzealous by forgoing meritorious criminal prosecutions if such promises financial rewards in the related forfeiture action – by, for example, dismissing or reducing criminal charges, or accepting a lesser sentence in exchange for concession in the forfeiture action, including a monetary payment in lieu of forfeiture. (Young, supra, 481 U.S. at 805-806; Libretti, supra, 516 U.S. 29, 56 (Stevens, J. diss.).)
	Under such circumstances, the prosecutor cannot fairly consider the public interest in treating the accused, forfeiture claimants and other third parties justly (State v. Storm, supra, 141 N.J. 245, 253 [661 A.2d 790, 794]; Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors (1994)  47 Ark. L. Rev. 511, 590 [“The Public Interest”]; Clancy, supra, 39 Cal. 3d 740, 745-750; Young, supra,  481 U.S. at 805), or fairly determine whether probable cause truly exists for the arrest and prosecution of a suspect or the seizure or forfeiture of property. (State v. Storm, supra, 141 N.J. 245, 253; Connally v. Georgia (1977) 429 U.S. 245, 250 [50 L. Ed. 2d 444 97 S. Ct. 546]; compare Jones v. Greene (Tn. Ct. of App. 1996) 946 S.W.2d 817 [no due process violation because forfeiture revenue deposited into state’s General Fund]; United States v. Terry (SDNY. 1992) 806 F. Supp. 490, 495-496 [no conflict of interest because revenue generated from AG’s prosecution of a related civil action goes into the state’s general fund].) One could hardly design a pecuniary incentive system better calculated to bias law enforcement decisions. (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, at 62.)
	Ultimately, the financial incentives place the prosecutor and police in a no-win situation in which their motivation and judgment can always be questioned.  Regardless of whether a prosecutor or police officer appears to be acting leniently (by extending grace in exchange for forfeiture-related concessions) or zealously (by pursuing convictions and forfeiture judgments), their actions are always tainted by the potential that they are financially motivated and thus undertaken in contravention of the constitutional duty to ensure that justice is done. (Stop Youth Addiction, supra, 17 Cal. 4th 553, 594-596 (Brown, J., diss.); Young, supra, 481 U.S. at 805-806.)
	But even if police and prosecutors could successfully insulate their decisions from the intrusion of the competing financial interest, that is not the point. The point is that “justice must satisfy the appearance of justice” and a financially interested prosecutor presents “the appearance of precisely the opposite” because it causes the defendant, forfeiture claimants, and the public to doubt that the prosecutor and police are acting disinterestedly. (Young, supra, 481 U.S. at 810-812; Zimmer, supra, 414 N.E.2d 705, 708; Brotherhood, supra, 411 F.2d 312, 319-320.)  And without "both the appearance and reality of fairness” which "generat[es] the feeling, so important to a popular government, that justice has been done" (Jerrico, supra, 446 U.S. 238, 242), the confidence of society is lost and “the concept of the rule of law cannot survive.” (Clancy, supra, 39 Cal. 3d 740, 746; see also In re Opinion 452 87 N.J. 45, 49  [432 A.2d 829] (1981)[underlying the requirement of financial impartiality “is a concern that the potential danger of conflict ... might undermine public confidence in our system of government and the independent integrity of the legal profession”]; State v. Rizzo, 69 N.J. 28, 30 [350 A.2d 225] (1975) [impartiality is necessary “to the end that the image of disinterested justice is not impoverished or tainted ...[and] for the sake of public confidence in the probity of the administration of justice.”].)  

CONCLUSION
	The prosecutor’s unique constitutional roll requires he be financially disinterested. Because of section 2C:64-6a, he is not.  We are thus faced with the spectacle of prosecutors using the “awful instrument of the criminal law” for purpose of financial gain. (Cf. Wright v. United States (2d Cir. 1984) 732 F.2d 1048, cert. denied,  469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 774 (1985), quoting McNabb v. United States (1943) 318 U.S. 322.) The decision of the trial court should be affirmed.

				Respectfully Submitted,
Date: _____			By:_________________
				      Mark T. Clausen,
				Attorney for Patricia Samples