Appeal from the Circuit Court of Lake County. No. 92-MR-610. Honorable Raymond J. McKoski, Judge, Presiding
Rehearing Denied August 25, 1994. Petition for Leave to Appeal Denied December 6, 1994.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinion of the court:
Claimant, Walter Sims, appeals the circuit court's order forfeiting a 1992 Oldsmobile pursuant to section 36-1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1991, ch. 38, par. 36-1 (now 720 ILCS 5/36-1 (West 1992)).) Sims contends that section 36-1 is unconstitutional because it grants judicial power to the Attorney General and because it vests judicial functions in the executive, rather than the judicial, branch, in violation of the separation of powers provisions of the Illinois Constitution. (Ill. Const. 1970, art. VI, § 1.) Sims also contends that the forfeiture in this case amounts to an excessive fine in violation of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII).
The parties below stipulated to the relevant facts. On November 24, 1992, Walter Sims and his son, Tom Sims, drove to the commissary at Fort Sheridan. At 9:12 a.m., Tom Sims bought 10 cartons of cigarettes. At 9:19 a.m., Walter Sims bought 10 cartons of cigarettes. At 9:55 a.m., Tom sims bought 10 more cartons of cigarettes at a different check-out counter. At 10:11 a.m;, Walter Sims bought 10 cartons of cigarettes at that check-out counter. None of the cigarette packs bore a tax stamp.
As the Simses left Fort Sheridan, a police officer stopped their car, the 1992 Oldsmobile station wagon which is the subject of this action. Police recovered from the Oldsmobile 40 cartons of cigarettes, none of which contained tax stamps. In the front seat, police found a list of names and cigarette brands and $1,548.
After an unsuccessful motion to suppress and a stipulated bench trial, the court convicted Walter Sims of one count of possession with the intent to offer for sale untaxed cigarettes (Ill. Rev. Stat. 1991, ch. 120, par. 453.24 (now 35 ILCS 130/24 (West 1992))). The State's Attorney then sought the forfeiture of Sims's car under section 36-1. The court ordered the forfeiture and Sims appeals.
Section 36-1 provides in relevant part:
"Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the coflission of * * * an offense prohibited by * * * Section 21, 22, 23, 24 or 26 of the Cigarette Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes * * * may be seized and delivered forthwith to the sheriff of the county of seizure." (Ill. Rev. Stat. 1991, ch. 38, par. 36-1 (now 720 ILCS 5/36-1 (West 1992)).)
Sims contends that section 36-1 is unconstitutional because it grantsjudicial power to the Attorney General and vests discretion in the executive branch. Sims makes the additional argument that the forfeiture in this case is an excessive penalty. He develops this argument further in his reply brief, arguing specifically that the forfeiture is an excessive fine in violation of the eighth amendment. He cites Austin v. United States (1993), 509 U.S. , 125 L. Ed. 2d 488, 113 S. Ct. 2801, which was decided one month before Sims filed his initial brief. Because we find this issue dispositive, we consider it first.
In Austin, the Supreme Court held that in rem civil forfeiture proceedings under section 511(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 881(a) (19 )) are subject to the eighth amendment's excessive fines clause. In Austin, defendant engaged in a drug transaction involving two grams of cocaine. Police obtained a search warrant for his mobile home and auto body shop. In each location they recovered small quantities of drugs and drug paraphernalia. After Austin pleaded guilty to drug charges in a South Dakota State court, the Federal government obtained the forfeiture of his home and business. (Austin, 509 U.S. at , 125 L. Ed. 2d at 495, 113 S. Ct. at 2803.) The United States Court of Appeals for the Eighth Circuit "reluctantly" affirmed the forfeiture, despite its belief that "the principle of proportionality is a deeply rooted concept in the common law" and that "as a modicum of fairness, the principle of proportionality should be applied in civil actions that result in harsh penalties." United States v. One Parcel of Property (8th Cir. 1992), 964 F.2d 814, 817.
After tracing the historical development of civil forfeiture provisions, the Supreme Court concluded that an in rem civil forfeiture is a form of punishment as contemplated by the eighth amendment. (Austin, 509 U.S. at , 125 L. Ed. 2d at 503, 113 S. Ct. at 2811.) The court, however, declined to establish specific standards to determine whether a forfeiture is "excessive" in a particular case. Instead, the court remanded the cause to the lower courts for consideration of this issue. Justice Scalia, Concurring, concluded that the critical inquiry is not the value of the property seized, but its connection to the criminal activity. If there is no substantial nexus between the property and the crime, the property is not forfeitable. Austin, 509 U.S. at , 125 L. Ed. 2d at 509, 113 S. Ct. at 2815 (Scalia, J., Concurring).
It seems clear that Austin applies to this case. The forfeiture statute at issue is identical in critical respects to that considered in Austin. Because newly announced rules of constitutional law are to be applied to cases pending on direct review ( Griffith v. Kentucky (1987), 479 U.S. 314, 322-23, 93 L. Ed. 2d 649, 658, 107 S. Ct. ...