People v. P.S.

676 N.E.2d 656, 175 Ill. 2d 79, 221 Ill. Dec. 853, 1997 Ill. LEXIS 10

• Court: Illinois Supreme Court
• Decided: January 30, 1997
• Docket: 78910, 78944 cons.
• Status: Published

Opinions

JUSTICE MILLER

delivered the opinion of the court:

One of the actions consolidated here, that involving defendant John Kimery, is before us on remand from the United States Supreme Court for further consideration in light of the Court’s decision in United States v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996).

The facts pertinent to this appeal are set forth in our previous opinion in this case, In re P.S., 169 Ill. 2d 260 (1996), and require only brief restatement here. In cause No. 78910, Kimery was arrested on October 6, 1991, following an incident in which he was observed making a purchase of illicit drugs. On that occasion an Aurora police officer who was conducting surveillance saw Kimery stop his car and speak to two men, who then entered a nearby building. One of the men returned to Kimery’s car several minutes later and got into the vehicle. The officer conducting the surveillance then saw the man hand Kimery a small white bag and receive money from Kimery in return. Police arrested the occupants of the vehicle and recovered a plastic bag from Kimery; the contents of the bag were later tested and were found to contain cocaine. Kimery was charged in the circuit court of Kane County with one count of unlawful possession of a controlled substance in violation of section 402(c) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56½, par. 1402(c)), a Class 4 felony.

While the criminal charge was pending, the State filed an in rem forfeiture action against Kimery’s vehicle, a 1982 Ford Mustang, pursuant to section 505(a)(3) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 561/2, par. 1505(a)(3)). The forfeiture complaint alleged the occurrence of the illegal drug sale described above. The complaint further alleged that Kimery was the registered owner of the vehicle and that the vehicle was subject to forfeiture because it had been used to facilitate the sale, receipt, possession, and concealment of a controlled substance.

Kimery entered an appearance in the forfeiture action as owner-claimant of the vehicle and requested the return of the automobile. Kimery acknowledged that he was present in the vehicle just before its seizure by authorities and admitted that a plastic bag was obtained from him, but he denied any knowledge of the contents of the bag and denied that the vehicle had been used to facilitate the alleged drug transaction. After a bench trial on May 26, 1992, the judge ordered Kimery’s automobile forfeited to the State. The appellate court later affirmed the forfeiture order. People v. One 1982 Maroon Ford Mustang, 258 Ill. App. 3d 127 (1994).

On August 13, 1992, after entry of the forfeiture judgment, Kimery moved to dismiss the pending criminal charge on grounds of double jeopardy. Kimery argued that forfeiture of the automobile constituted punishment for purposes of double jeopardy under the United States and Illinois Constitutions and that any further prosecution for the conduct that resulted in the forfeiture was therefore barred. The trial court took the motion under advisement, awaiting this court’s opinion in People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992). Following our decision in that case, which found no double jeopardy bar under either the federal constitution or the state constitution to successive forfeiture actions and criminal prosecutions, Kimery pleaded guilty to the charge on April 12, 1993. Before Kimery could be sentenced, however, he moved to withdraw his guilty plea and requested dismissal of the charge, renewing his contention that successive forfeiture actions and criminal prosecutions for the same conduct are barred by double jeopardy. In support of the motion Kimery cited the United States Supreme Court’s then-recent decision in Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), which held that a forfeiture may constitute punishment under the excessive fines clause of the eighth amendment. Following a hearing, the trial judge denied Kimery’s motion and sentenced him to one year’s imprisonment. The judge stayed the sentence, however, pending the resolution of Kimery’s interlocutory appeal of the double jeopardy question (see 145 Ill. 2d R 604(f)).

In an unpublished order the appellate court vacated the circuit court judgment, concluding that Kimery could not be prosecuted on the drug charge following the forfeiture of his automobile. The appellate court believed that forfeiture of the vehicle must be considered punishment and that a later criminal prosecution for the same conduct was therefore precluded by double jeopardy.

On the State’s appeal, we affirmed the appellate court’s disposition of Kimery’s case. In re P.S., 169 Ill. 2d 260 (1996). After reviewing the Supreme Court’s decisions in Department of Revenue v. Kurth Ranch, 511 U.S. 767,128 L. Ed. 2d 767,114 S. Ct. 1937 (1994), Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), and United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), we concluded that the prior forfeiture proceeding constituted punishment for purposes of the double jeopardy clause of the fifth amendment and that a subsequent prosecution of Kimery for the same underlying conduct was therefore barred. Our decision in 1988 Mercury Cougar preceded the Supreme Court’s rulings in Kurth Ranch and Austin, and we believed that the later decisions necessitated a result different from that reached in our earlier case. With regard to Kimery, we therefore held that the subsequent criminal prosecution was barred by double jeopardy. We reached a different result in the two other cases consolidated in P.S.; we found that the criminal charges in those prosecutions were for offenses distinct from the forfeiture actions and thus did not violate double jeopardy.

The State filed a petition for a writ of certiorari in Kimery’s case. The Supreme Court granted the petition, vacated the judgment, and remanded the cause to us for further consideration in light of the Court’s ruling in United States v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), which had been decided while the petition for certiorari was pending. Illinois v. Kimery, 518 U.S. 1031, 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996). As we explain below, we now conclude that the forfeiture action at issue here does not constitute punishment for purposes of double jeopardy and therefore does not preclude, on double jeopardy grounds, Kimery’s subsequent prosecution for the related drug offense.

The double jeopardy clause of the fifth amendment, made applicable to the states by the fourteenth amendment (Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969)), protects against three perils: a second prosecution after acquittal, a second prosecution after conviction, and multiple punishments for the same offense (North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65, 89 S. Ct. 2072, 2076. (1969)). At issue in this case is the third safeguard, that involving multiple punishments for the same offense. P.S., 169 Ill. 2d at 272.

In Ursery, the Supreme Court reaffirmed the view that a civil in rent forfeiture action is not punishment for purposes of the double jeopardy clause and therefore may be pursued independently of a criminal action based on the same underlying misconduct. The Court noted that it had consistently held that the double jeopardy clause does not apply to such forfeitures because they do not impose punishment. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489 (1972) (per curiam); Various Items of Personal Property v. United States, 282 U.S. 577, 75 L. Ed. 558, 51 S. Ct. 282 (1931). The Court did not believe that a different result was compelled by its decisions in Department of Revenue v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), and United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), cases on which this and other courts had relied in finding a double jeopardy problem in successive forfeiture actions and criminal prosecutions. The Ursery Court noted that Halper and Kurth Ranch addressed double jeopardy questions involving civil penalties assessed against an individual (Halper) and a punitive state tax imposed on illicit drugs (Kurth Ranch); Austin considered the application of the eighth amendment’s excessive fine clause to civil forfeitures. The Ursery court explained that nothing in those three decisions "purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.” Ursery, 518 U.S. at 287, 135 L. Ed. 2d at 567-68, 116 S. Ct. at 2147.

In determining whether the particular forfeiture actions involved in Ursery constituted punishment, the Court employed a two-part inquiry derived from 89 Firearms, which rejected‘a similar double jeopardy argument. First, the Court in Ursery asked whether Congress intended for the federal forfeitures at issue in those cases to be considered criminal or civil in nature. Next, the Court asked whether the forfeiture actions are so punitive in fact that they must be considered criminal, regardless of congressional intent. Ursery, 518 U.S. at 288, 135 L. Ed. 2d at 568, 116 S. Ct. at 2147. After analyzing the statutory provisions at issue in those consolidated cases, the Court concluded that the forfeitures were civil in nature.

We must decide here whether the forfeiture provided by Illinois statute is civil or criminal in nature. This is primarily a question of statutory construction. Emerald Cut Stones, 409 U.S. at 237, 34 L. Ed. 2d at 443, 93 S. Ct. at 493. Applying to the Illinois provisions the same two-part inquiry used in Ursery and 89 Firearms, we conclude that the forfeiture at issue in Kimery’s case constitutes a remedial civil sanction and does not bar a subsequent criminal prosecution.

We must first determine whether the legislature intended the forfeiture that preceded the instant prosecution to be civil or criminal in character. The property at issue in Kimery’s case was-subject to forfeiture under section 505(a)(3) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56½, par. 1505(a)(3)). Forfeiture proceedings involving property seized pursuant to that statute are governed by the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 561/2, pars. 1671 through 1684). See Ill. Rev. Stat. 1991, ch. 561/2, par. 1505(c); Ill. Rev. Stat. 1991, ch. 56½, par. 1673. An examination of the provisions of the Forfeiture Act reveals that the General Assembly, in enacting the statute, intended to create a remedial civil sanction. Many of the civil features identified in the federal forfeiture statutes at issue in Ursery and 89 Firearms can also be found in the Illinois act. Turning to the first part of our inquiry, we believe that it is clear that the legislature intended actions brought pursuant to the Forfeiture Act to be remedial civil sanctions. As an initial matter, we note that the legislature has expressly stated that the proceedings under the Forfeiture Act are civil (Ill. Rev. Stat. 1991, ch. 56½, par. 1672) and are designed to serve a remedial purpose (Ill. Rev. Stat. 1991, ch. 561/2, par. 1683).

Various procedural mechanisms provided by the Forfeiture Act further demonstrate the civil nature of those proceedings. The action is in rem and not in personam. Ill. Rev. Stat. 1991, ch. 56½, pars. 1674, 1679. Furthermore, section 6 of the Forfeiture Act provides a summary, nonjudicial proceeding for certain categories of property if no claimant appears. Ill. Rev. Stat. 1991, ch. 561/2, par. 1676. The evidentiary burdens assigned by the Forfeiture Act also indicate that judicial proceedings under the statute are civil rather than criminal in character. For example, once the State establishes the existence of probable cause for forfeiture of the property, "the claimant has the burden of showing by a preponderance of the evidence that the claimant’s interest in the property is not subject to forfeiture.” Ill. Rev. Stat. 1991, ch. 561/2, par. 1679(G). In addition, a claimant urging that the property is exempt from forfeiture has the burden of establishing that defense by a preponderance of the evidence. Ill. Rev. Stat. 1991, ch. 561/2, par. 1678. These provisions demonstrate that the legislature intended to create a civil remedial sanction in the Forfeiture Act. See Ursery, 518 U.S. at 288-89, 135 L. Ed. 2d at 568-69, 116 S. Ct. at 2147; 89 Firearms, 465 U.S. at 363-64, 79 L. Ed. 2d at 368-70, 104 S. Ct. at 1105-06.

Turning now to the second part of the test applied by the Supreme Court in Ursery and 89 Firearms, we consider whether proceedings brought under the Forfeiture Act "are so punitive in form and effect as to render them criminal” notwithstanding the legislature’s intent to make them civil. We do not believe that the sanction is so punitive that it overcomes the civil attributes we have listed above. Proceedings under the Forfeiture Act serve important nonpunitive goals. As the Supreme Court noted in Ursery, requiring the forfeiture of property used to facilitate a drug violation encourages owners "to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes.” Ursery, 518 U.S. at 290, 135 L. Ed. 2d at 569, 116 S. Ct. at 2148. Moreover, as Ursery observes, in rem civil forfeiture has not traditionally been viewed as punishment, as that term is used in the double jeopardy context. A further indication that the proceeding is not criminal is found in the absence of a requirement of proof of scienter to sustain a forfeiture order; property may be subject to forfeiture even if no one appears to claim it (Ill. Rev. Stat. 1991, ch. 561/2, par. 1676). Ursery, 518 U.S. at 292, 135 L. Ed. 2d at 570, 116 S. Ct. at 2149.

The Supreme Court’s decision in Ursery also suggests that several potentially punitive aspects of the Forfeiture Act, as noted in our prior opinion in this case (P.S., 169 Ill. 2d at 283), are not sufficient to overcome the essentially civil nature of the sanction. Thus, the statutory provision of an "innocent owner” defense to forfeiture actions (Ill. Rev. Stat. 1991, ch. 56½, par. 1678) is not fatal to the conclusion that forfeiture is a remedial civil sanction. The avowedly deterrent aim of the statutory scheme (Ill. Rev. Stat. 1991, ch. 56½, par. 1672) is also consistent with its civil nature. Finally, that the Forfeiture Act does not come into play until a criminal offense occurs does not defeat its civil purpose, for the legislature may impose both civil and criminal sanctions with respect to the same misconduct. Ursery, 518 U.S. at 291-92, 135 L. Ed. 2d at 570-71, 116 S. Ct. at 2149; see also 89 Firearms, 465 U.S. at 365-66, 79 L. Ed. 2d at 370-71, 104 S. Ct. at 1106-07.

For the reasons stated, we believe that the legislature intended the forfeiture involved in Kimery’s case to be merely a civil sanction, and we therefore hold that the subsequent criminal prosecution for the same underlying conduct does not implicate double jeopardy concerns. As we recognized in our earlier opinion in this case (P.S., 169 Ill. 2d at 282), the Forfeiture Act is patterned after the federal forfeiture provisions found in 21 U.S.C. § 881 (Ill. Rev. Stat. 1991, ch. 56½, par. 1672), and the General Assembly has stated that provisions of the Illinois statute should be interpreted in the same manner as are similar provisions of the federal statute. Ill. Rev. Stat. 1991, ch. 56½, par. 1672. One of the forfeiture statutes at issue in Ursery was the federal counterpart to the Illinois act, so it is appropriate that we reach the same result here, in light of the legislature’s intent that the Forfeiture Act receive the same construction. We thus conclude that the prior forfeiture of Kimery’s automobile, used in the drug transaction that forms the basis for the criminal charge, does not preclude on double jeopardy grounds a subsequent prosecution of Kimery for that offense.

As a final matter, we turn briefly to the question whether the same result must obtain under the double jeopardy clause found in article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, § 10). As our earlier opinion in this case noted, although Kimery and the other parties in P.S. invoked the double jeopardy provisions of both the United States Constitution and the Illinois Constitution in the circuit court proceedings, they did not argue that the provision of the state constitution granted greater protection or required a different result. P.S., 169 Ill. 2d at 271. Accordingly, the issue has been waived.

Moreover, we have previously interpreted our own state constitution’s double jeopardy clause in a manner that is consistent with the United States Supreme Court’s interpretation of the double jeopardy clause of the fifth amendment. See People v. Levin, 157 Ill. 2d 138, 160 (1993). Notably, in People v. 1988 Mercury Cougar, 154 Ill. 2d 27, 39 (1992), this court found no double jeopardy bar under either the United States Constitution or the Illinois Constitution to a forfeiture proceeding instituted after the defendant’s conviction for conduct giving rise to the forfeiture. Nothing has occurred in the few years since that decision that would alter our analysis of the state constitutional guarantee, and thus we do not believe that the double jeopardy provision of the Illinois Constitution would warrant a different result in this case.

Brief comment should be made on the analysis proposed in one of the dissenting opinions. That opinion notes that, by the time of the 1970 state constitutional convention, most of the provisions of the Bill of Rights of the United States Constitution had been made applicable to the states. From that observation the dissenting opinion infers that the drafters of the Illinois Constitution must have intended the provisions of the state Bill of Rights to supplement the United States Constitution and to stand "as an additional protection” against governmental overreaching. 175 Ill. 2d at 92 (Heiple, C.J., dissenting). The dissent apparently believes that the mere inclusion of a particular guarantee in the state Bill of Rights, without more, demonstrates that the provision means something different from the corresponding provision of the Bill of Rights of the United States Constitution. This approach leads to the conclusion that similar provisions of the federal and state constitutions mean different things, even though they are expressed in the same terms. Under this view, the Illinois drafters did not adopt well-established meanings when they used familiar words and phrases but instead always meant something different. Notably, the dissenting opinion offers no citation to the proceedings of the 1970 constitutional convention in support of this novel theory.

In any event, this case is not an appropriate vehicle for a reassessment of the lockstep doctrine, for consideration of that question is unnecessary to our resolution of the present appeal. In People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992), this court rejected double jeopardy challenges, under both the federal and state constitutions, to the same legislation at issue here. More recently, in People v. Levin, 157 Ill. 2d 138 (1993), this court held that the double jeopardy clause of our state constitution is to be construed in the same manner as the double jeopardy clause of the federal constitution. As we have already noted, the defendant did not previously argue in the circuit court or before this court that the double jeopardy provision of the state constitution should be interpreted more expansively than its federal counterpart.

Given the precedents of 1988 Mercury Cougar and Levin, this case is a curious forum in which to attempt to rekindle the debate over the interpretation of similar state and federal constitutional provisions. At the time of our original consideration of this appeal, we would have adhered to our earlier ruling in 1988 Mercury Cougar if we had not then believed that later decisions by the United States Supreme Court compelled a different result. With the meaning of those decisions clarified, we may now reinstate the holding of 1988 Mercury Cougar.

For the reasons stated, the judgment of the appellate court is reversed, and the cause is remanded to the circuit court of Kane County for further proceedings consistent with this opinion.

Reversed and remanded.

JUSTICE HARRISON took no part in the consideration or decision of this case.