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01/30/97 P.S. v. P.S.

January 30, 1997

IN RE P.S., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
P.S., APPELLEE).-THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. JOHN KIMERY, APPELLEE.-THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. RODERICK TURNER, APPELLEE.



The Honorable Justice Miller delivered the opinion of the court. Justice Harrison took no part in the consideration or decision of this case. Chief Justice Heiple, dissenting. Justice Nickels joins in this dissent. Justice Nickels, also dissenting. Chief Justice Heiple joins in this dissent.

The opinion of the court was delivered by: Miller

The Honorable 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. , 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, 214 Ill. Dec. 475, 661 N.E.2d 329 (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. 56 1/2, 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. 56 1/2, 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, 630 N.E.2d 137, 196 Ill. Dec. 440 (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, 607 N.E.2d 217, 180 Ill. Dec. 323 (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, 214 Ill. Dec. 475, 661 N.E.2d 329 (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. , 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), which had been decided while the petition for certiorari was pending. Illinois v. Kimery, U.S. , 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 rem 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 , 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 , 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 ...


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