Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 14, 1982.
Benny R. Feliciano, plaintiff, a professional jockey, filed a complaint for administrative review asking the circuit court to reverse a decision of the Illinois Racing Board (Board). The circuit court affirmed the decision of the Board, which found that plaintiff was in knowing possession of an illegal device in violation of the Illinois Horse Racing Act of 1975 (Act). (Ill. Rev. Stat. 1981, ch. 8, par. 37-37(a)(3).) *fn1 Plaintiff appeals the circuit court's affirmation of the Board's decision and the penalty imposed.
Plaintiff's license was suspended for life after the Board found that plaintiff's knowing possession of an illegal device was shown by a preponderance of the evidence. Such devices, known as buzzers or batteries, are electrical devices used to stimulate race horses. Section 37(c) of the Act empowers the Board to suspend or revoke such a violator's license.
Agents of the Illinois Department of Law Enforcement (DLE) testified that an anonymous phone call was received by Commander Leonard Becicka on June 15, 1981, stating that plaintiff had used a "battery" in a race the previous week at Arlington Park Race Track (Arlington) in Arlington Heights, Illinois. The anonymous caller did not indicate where the battery could be found. Commander Becicka then ordered the search of plaintiff and his car during the normal training hours the next morning. Commander Becicka decided against searching the plaintiff at the start of the races on June 15 in order to avoid unnecessary speculation by, or inconvenience to, the racing public. DLE Agents Gentilcore, Billone and Kahn arrived at Arlington about 6 a.m. on June 16 to search plaintiff and his car. The agents located plaintiff's car outside the track cafeteria and took up surveillance positions. Agent Gentilcore stated that the locking mechanism on each door of plaintiff's car was in the locked position as he passed the car. Later evidence showed that the locking mechanism of the car was in the arm rest of each door rather than at window level. Agents Kahn and Gentilcore testified that plaintiff appeared to reach into his front pants pocket, then reach for the car door, twist his hand and enter the car. Agent Billone could only see plaintiff enter the car and drive off. The agents followed plaintiff. Agent Billone stopped plaintiff, identified himself and asked to search plaintiff and his car. Plaintiff cooperated with the agents and pulled his car to a vacant area. Plaintiff signed a consent-to-search form and unlocked the front passenger-side door for Agent Gentilcore. Three racing gloves, which plaintiff admitted owning, were found in the glove compartment. Agent Gentilcore found a "battery" in the thumb of one of the racing gloves. Plaintiff denied any knowledge of, or the ownership of, the battery. Plaintiff was placed under arrest and advised of his constitutional rights. The racing stewards were notified of plaintiff's arrest.
During hearings held by the Board, plaintiff disagreed with the agents' accounts of the events of June 16, 1981. Agents Gentilcore and Kahn had stated that they observed plaintiff talking to a blond woman as he left the track cafeteria. Plaintiff denied talking to anyone as he left the cafeteria. Plaintiff further denied that he reached into his pants pocket and unlocked the car, maintaining that the car was not locked. He denied consenting to a search of his car or signing a consent-to-search form. Plaintiff denied that he unlocked the passenger-side door for Agent Gentilcore, again stating that the car was unlocked. Plaintiff stated that his car was unlocked and unattended during training hours on June 15 and during the times his wife used the car for local errands. Plaintiff's wife testified that she could not recall if the car was locked at all times while she used it.
The Board rejected plaintiff's theory that the device was "planted" in his car by someone jealous of plaintiff and to prevent his continued racing. The Board, finding his testimony to be unbelievable, held that plaintiff had violated the Act by his knowing possession of the device. Plaintiff was suspended for life and excluded from all race tracks in Illinois.
Plaintiff filed a timely complaint for administrative review by the circuit court of Cook County (Ill. Rev. Stat. 1981, ch. 110, par. 3-101 et seq.). The circuit court affirmed the Board's decision as not contrary to the manifest weight of the evidence.
Plaintiff argues that the alleged violation of section 37(a)(3) of the Act must be shown by clear and convincing evidence and not by a mere preponderance of the evidence. Plaintiff contends that the more stringent standard of proof is required where, as here, the alleged conduct could subject the accused to both civil and criminal penalties. *fn2
In order to evaluate properly this issue, we first review some general principles applicable to this subject. The standard of proof which should be applied in a particular type of adjudication by the fact finder must take into account the private interest affected by the proceeding in relation to the governmental interest, and the permanency of the threatened loss by the governmental action. As the private interest intensifies, the standard to apply should become more stringent. In Santosky v. Kramer (1982), ___ U.S. ___, 71 L.Ed.2d 599, 102 S.Ct. 1388, the Supreme Court found that a clear and convincing standard was required in a proceeding to terminate parental rights since "the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight." (___ U.S. ___, ___, 71 L.Ed.2d 599, 609, 102 S.Ct. 1388, 1396.) The primary purpose of assigning a particular standard of proof to an adjudicatory proceeding is to minimize the risk of erroneous decisions. (Santosky v. Kramer (1982), ___ U.S. ___, ___, 71 L.Ed.2d 599, 607, 102 S.Ct. 1388, 1395.) Depending on the interests involved in a particular case, "[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Addington v. Texas (1979), 441 U.S. 418, 427, 60 L.Ed.2d 323, 331-32, 99 S.Ct. 1804, 1810.
Addington involved the indefinite, involuntary commitment of plaintiff to a State mental hospital. The court found that the unique nature of civil commitment proceedings, in which the certainty of psychiatric diagnosis is impossible and where the individual's liberty interest far outweighs the interest of the State, requires a standard of proof short of proof beyond a reasonable doubt and more stringent than a mere preponderance of the evidence. The court left the determination of the precise burden to the Texas Supreme Court, noting that the equivalent of a clear and convincing standard would satisfy the due process requirements in a civil commitment proceeding. 441 U.S. 418, 433, 60 L.Ed.2d 323, 335, 99 S.Ct. 1804, 1813.
The Illinois legislature and the courts> have recognized the greater individual interest involved in civil commitment proceedings requiring proof by clear and convincing evidence. (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 3-808; People v. Nayder (1982), 106 Ill. App.3d 489, 495, 435 N.E.2d 1317, where the court recognized the need for a more stringent standard of proof at civil commitment proceedings to protect the individual's liberty interest in light of the unique nature of the evidence and the uncertainty of an evidentiary determination, when balanced against the State's interest in protecting the individual from himself and society from dangerous persons.) The standard of proof should be of a higher quality when "the possible injury to ...