The opinion of the court was delivered by: Heiple
JUSTICE HEIPLE delivered the opinion of the court:
Resolution of this case requires this court to determine the constitutionality of the Drug Asset ForfeitureProcedure Act (Act) (Ill. Rev. Stat. 1991, ch. 56 1/2, pars. 1671 through 1684). The circuit court below found that the Act's denial of a jury trial in forfeiture proceedings violates the Illinois Constitution. We agree and affirm.
Claimant, Maritza Varela, and her husband, Carlos, owned a home located at 6323 North LaCrosse Avenue in joint tenancy. On September 18, 1991, Carlos was arrested for the possession of 3.140 grams of cocaine resulting from a search of their home. On October 7, 1991, the State filed a complaint for forfeiture of the real property located at 6323 North LaCrosse, pursuant to the Illinois Controlled Substances Act (Ill Rev. Stat. 1991, ch. 56 1/2, par. 1505). On November 1, 1991, Maritza Varela filed a verified claim for return of the real property at 6323 North LaCrosse. On November 13, 1991, claimants attorney filed her appearance and demanded trial by jury.
On November 22, 1991, the State filed a motion to strike the claimant's jury demand on the ground that (1) it had been waived as a matter of law where the jury demand was not filed with the claimant's verified answer to the forfeiture complaint; and (2) the claimant did not pay the required jury fee as required by statute.
On January 13, 1992, the claimant filed a response to the State's motion to strike jury demand, wherein she claimed that her attorney was unable to file an appearance on November 1, 1991, as she was involved in an extended Federal trial. Further, when claimant's attorney went to the clerk's office at the Conclusion of her Federal trial, she was not able to pay the jury fee because the clerk's office would not accept it. The clerk's office informed claimant's attorney to take the appearance and jury demand form to the courtroom on the 23d floor of the Daley Center. The clerk of the courtroom stamped the form and told claimant's attorney to inquire about the filing fee the next time she was in court. The claimant asserted that her attorney had a reasonable excuse for not paying the jury fee, as she was not permitted to pay the clerk's office, and that she was entitled to a jury trial without having to pay a fee where the proceeding is quasi-criminal in its nature.
On June 29, 1992, after a hearing on the State's motion to strike the jury demand, the circuit court denied the State's motion. Subsequently, the State filed a motion to strike the jury demand because the Drug Asset Forfeiture Procedure Act provides that the hearings with respect to all property, subject to forfeiture under the Illinois Controlled Substances Act or the Cannabis Control Act, must be by the court without a jury. The Drug Asset Forfeiture Procedure Act provides in pertinent part:
"The hearing must be held within 60 days after filing of the answer unless continued for good cause and must be by the court without a jury." (Emphasis added.) Ill. Rev. Stat. 1991, ch. 56 1/2 par. 1679(F).
On September 23, 1992, claimant filed a response to the State's motion to strike the jury demand and a motion to declare the Drug Asset Forfeiture Procedure Act unconstitutional. The claimant argued that the Drug Asset Forfeiture Procedure Act violates due process by denying her the right to a jury trial as guaranteed by the Federal and Illinois Constitutions.
On December 31, 1992, the State filed its response to claimant's motion. The State argued that there is no right to a jury trial under the Cannabis Control Act or the Controlled Substances Act where proceedings based on those statutes were unknown at common law.
On January 5, 1993, the circuit court heard arguments by both parties. On March 31, 1993, the circuit court issued a memorandum and order declaring the Drug Asset Forfeiture Procedure Act unconstitutional. The court initially noted that under Illinois case law, there is no right to trial by jury if the proceeding in question was unknown at common law. The court then reasoned that because in rem civil asset forfeiture was an action known at common law at the time of the adoption of the Illinois Constitution, claimants were entitled to jury trials under the Drug Asset Forfeiture Procedure Act. The court ordered that the specific provision of the Act that precludes trial by jury for in rem civil asset forfeiture proceedings be excised from the statute.
On appeal to this court, the State argues that, in this State, in rem forfeiture cases have been uniformly conducted via a bench trial, and not a jury trial. The State cites several cases in which claimants forfeited contraband related to gaming or gambling without the benefit of a jury trial. Frost v. People (1901), 193 Ill. 635, 61 N.E. 1054; People v. One Pinball Machine (1942), 316 Ill. App. 161, 44 N.E.2d 950; City of Chicago v. Thomson (1946), 393 Ill. 568, 66 ...