[¶ 1] Gеorge M. Deering appeals from the judgment entered in the Superior Court (Penobscot County, Mills, J.) following a bench trial granting thе State’s petitions for forfeiture of defendants in rem, one 1981 Chevrolet Monte Carlo and $1213 in U.S. currency. Deering contends that аs a party-in-interest to an in rem civil forfeiture proceeding he has a right to a jury trial pursuant to the Maine Constitution. We agrеe and vacate the judgment.
[¶ 2] In 1994, the Bangor police arrested Deering for violating the terms of his bail. In a search following the arrest, the police found two baggies of marijuana in Deering’s 1981 Chevrolet Monte Carlo. After searching Deering’s person, the police also discovered $1213, a notebook containing a list of names and corresponding numbers, emрty baggies, and cigarette rolling papers.
[¶ 3] Subsequently, the State petitioned the court pursuant to 15 M.R.S.A. § 5822 (Supp.1998) to order forfeiture of the Monte Carlo and the U.S. currency. 1 In his answers to the petitions, Deering demanded a jury trial. Despite this demand, thе State filed the M.R. Civ. P. 16(b) pretrial statement without requesting a jury trial, and the Superior Court (Penobscot County, Marsa-no, J.) placed the cаse on a nonjury trial list. Displeased with the nonjury status, Deering again demanded a jury trial. The Superior Court (Penobscot County, Delahanty, C.J.) denied Deering’s request, stating that a jury trial is not available pursuant to 15 M.R.S.A. §§ 5821-5826 (Supp.1998).
[¶ 4] At the beginning of the bench trial, Deering demanded a jury trial fоr a third time, and once again the Superior Court (Penobscot County, Mills, J.) declined his request. 2 Following the trial, the court granted the State’s petitiоns for forfeiture and Deering appealed.
[¶ 5] The forfeiture statute explicitly provides that hearings on forfeiture petitions shall be tried to “the court,” not to a jury:
4. Hearings. At a hearing, other than default proceedings, the court shall hear evidence, make findings of fact, enter conclusions of law аnd file a final order from which the parties have the right of appeal....
15 M.R.S.A. § 5822(4) (emphasis added). We must determine, therefore, whether a party whose property is subject to forfeiture is entitled to a jury trial, notwithstanding the statutory provision for bench trial only.
[¶ 6] The Maine Constitution provides that,
[i]n all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced ....
*1261
Me. Const. art. I, § 20. This language provides “a ‘brоad constitutional guarantee of the right to a jury trial in all civil eases,’ except where ‘by the common law and Massаchusetts statutory law that existed prior to the adoption of the Maine Constitution in 1820 such cases were decided without a jury.’ ”
Kennebec Fed. Sav. & Loan Ass’n v. Kueter,
[¶ 7] The legal and historical authority indicate that at common law a party-in-interest to an
in rem
civil forfeiture proceeding had a right to a jury trial.
See
5 James W. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 38.31[1] (2d ed.1994). In England, forfeiture tо the Crown by a procedure
in rem
of an object used in the violation of the law “was a practice familiar not only tо the English admiralty courts but to the Court of Exchequer.”
C.J. Hendry Co. v. Moore,
[¶ 8] In light of this historical precedent, the Seventh Circuit has determined that, “[t]he conclusion appears inescapable that both English and American prаctice prior to 1791 definitely recognized jury trial of
in rem
actions at common law as the established mode of determining the propriety of statutory forfeitures on land for breach of statutory prohibitions.”
United States v. One 1976 Mercedes Benz 280S,
[¶ 9] At common law a party-in-interest to an
in rem
civil forfeiture procеeding had a right to a jury trial, and the State has not affirmatively shown that this right was rescinded in Massachusetts before 1820.
See Kennebec Fed. Sav. & Loan Ass’n,
The entry is:
Judgment vacated. Remanded to the Superior Court for further proceedings consistent with this opinion.
Notes
. Title 15 M.R.S.A. § 5822 provides in part:
1. Filing of petition. A petition for forfeiture must be filed as provided in this section.
A. A district attorney or the Attorney General may petition thе Superior Court in the name of the State in the nature of a proceeding in rem to order forfeiture of property subject to forfeiture under section 5821 ....
Title 15 M.R.S.A. § 5821 provides in part:
The following shall be subject to forfeiture to the State and no property' right may exist in them:
4. Conveyances. All conveyances, including aircraft, vehicles or vessels, which are used or are intended for usе to transport or in any manner to facilitate the transportation, sale, trafficking, furnishing, receipt, possession or concealment of property described in subsection 1 or 2 ....
6. Money instruments. Except as provided in paragraph A, аll money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for а scheduled drug in violation of Title 17-A, chapter 45; all proceeds traceable to such an exchange and all money, negotiable instruments and securities used or intended to be used to facilitate any violation of Title 17-A, chapter 45 ....
. Althоugh Deering neither paid the jury fee nor requested a fee waiver, we do not find that he failed to preserve his right to a jury triаl.
See
Administrative Order SJC-321, Me, Rptr., 576-88 A.2d CXXXV-CXXXVI. It is generally true that nonpayment of the jury fee, unless it is waived because of indigency, will foreclose a litigant from obtaining a jury trial.
See Martin v. Sullivan,