THE PEOPLE OF THE STATE OF ILLINOIS ex rel. MATTHEW HARTRICH, State's Attorney of Crawford County, Illinois, Appellant,
2010 HARLEY-DAVIDSON (Petra Henderson, Appellee).
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion. Justices Freeman, Thomas, Garman, and Theis
concurred in the judgment and opinion.
1 The last time this court addressed the application of the
excessive fines clause of the federal constitution's
eighth amendment to the civil forfeiture of personal property
was our decision in People ex rel. Waller v. 1989 Ford
F350 Truck, 162 Ill.2d 78 (1994). In this appeal, we
return to that issue.
2 After the trial court ordered the forfeiture of the
claimant's motorcycle based on her husband's criminal
conduct while driving it, she first raised an as-applied
constitutional challenge to the Illinois civil forfeiture
statute (720 ILCS 5/36-1 (West 2012)). She argued that the
statute, as applied to the specific facts in this case,
violated the excessive fines clause of the United States
Constitution (U.S. Const., amend. VIII). Those facts showed
that her husband was driving on a revoked license while under
the influence of alcohol after an earlier revocation was
extended due to his prior conviction for driving while his
license was revoked, following multiple driving under the
influence (DUI) convictions and statutory summary
suspensions. The trial court rejected her claim, but the
appellate court reversed. The appellate court concluded the
forfeiture of the motorcycle constituted a constitutionally
excessive penalty, violating the excessive fines clause of
the eighth amendment. 2016 IL App (5th) 150035, ¶ 41. We
reverse the judgment of the appellate court and reinstate the
trial court's forfeiture order.
3 I. BACKGROUND
4 After midnight on April 26, 2014, a police officer in
Robinson, Illinois, heard a motorcycle "revving"
before observing a trike-style motorcycle make a "very
wide" right turn, swerve, and nearly hit a telephone
pole. The officer followed and turned on his car's
emergency lights, but the motorcycle did not stop. The
officer then activated his siren, but the motorcycle still
did not stop. Instead, it continued to weave across the road
for a total of about 12 blocks before turning into a
driveway. The motorcycle was driven by Mark Henderson, whose
wife, Petra, was a passenger on the back.
5 When Mark got off the motorcycle, the officer noted that he
exhibited "a strong odor of alcohol, " slurred
speech, and poor balance. The officer placed him under
arrest. A breath test revealed his blood alcohol
concentration was 0.161, over twice the legal limit. Mark was
charged with aggravated DUI (625 ILCS 5/11-501(d) (West
2014)) and driving with a suspended or revoked driver's
license (625 ILCS 5/6-303 (West 2014)). Since 1996, his
license had been summarily suspended multiple times, and his
license was revoked following his 2008 DUI conviction. That
revocation was extended after he was convicted of driving
with a revoked license in 2012; as of April 2014, Mark's
license remained revoked. The police seized the motorcycle, a
2010 Harley-Davidson, and the State filed initial and amended
forfeiture complaints in the circuit court of Crawford County
pursuant to section 36-1 of the Criminal Code of 2012 (720
ILCS 5/36-1(a)(6)(A)(i) (West 2012)).
6 At a December 2014 hearing on the State's forfeiture
request, Mark's wife Petra, the claimant in this case,
was shown to be the title owner of the motorcycle, although
Mark took care of the maintenance on the vehicle. Mark also
had the key fob with him throughout the night of his arrest.
The evidence showed that the motorcycle could be started
whenever its key fob was near.
7 The claimant and her husband provided similar descriptions
of that evening's events. The claimant testified that
Mark was a passenger as she drove the motorcycle to a number
of bars in nearby towns. Prior to the couple's 12-block
ride home from the Corner Place bar in Robinson, Illinois, he
jumped on the motorcycle before her for the first time that
night and started it. The claimant, who had not been
drinking, initially objected to her husband driving. He,
however, refused to get off the motorcycle. At the forfeiture
hearing, the claimant admitted that she knew Mark was
intoxicated and had no driver's license. That statement
matched the account she gave to the police when Mark was
arrested. Nonetheless, she allowed him to drive her home
because he told her the only alternative was for her to walk.
The claimant testified that she had purchased the motorcycle
in 2010 for $35, 000, but no evidence was adduced about its
value at either the time of her husband's arrest or the
8 After hearing the evidence and the parties' arguments,
the trial court entered an order of civil forfeiture,
expressly finding that the claimant's testimony was
self-serving and not credible. The trial court concluded that
the claimant consented to her husband driving the motorcycle
even though she knew he was intoxicated and did not have a
valid driver's license, making the motorcycle subject to
civil forfeiture. In a posttrial motion, the claimant argued
for the first time that the forfeiture order created an
as-applied violation of the excessive fines clause of the
federal constitution's eighth amendment. The trial court
rejected her claim, and she filed a timely notice of appeal.
9 The appellate court declined to overturn the trial
judge's factual findings that the claimant's
testimony was not credible and that she knowingly consented
to her husband driving the motorcycle that night.
Nonetheless, the court reversed the forfeiture order,
concluding that, in light of the claimant's limited
culpability, the penalty was unconstitutionally excessive
under this court's three-part test in Waller,
162 Ill.2d at 89-90. We allowed the State's petition for
leave to appeal pursuant to Illinois Supreme Court Rule
315(a) (eff. Mar. 15, 2016).
10 II. ANALYSIS
11 This appeal addresses the constitutionality of the
Illinois civil forfeiture statute (720 ILCS
5/36-1(a)(6)(A)(i) (West 2012)) as applied to the
court-ordered forfeiture of the claimant's 2010
Harley-Davidson motorcycle. The claimant specifically alleges
that the trial court's application of the civil
forfeiture statute to her motorcycle under the facts of this
case violates the excessive fines clause of the eighth
amendment of the federal constitution (U.S. Const., amend.
VIII). The claimant makes it clear that she is bringing only
an as-applied constitutional challenge to the statute, not a
facial one. The distinction is crucial.
12 While a successful facial challenge faces the heavy burden
of establishing that a statute is unconstitutional under any
possible set of facts, an as-applied challenge has the burden
of showing that a constitutional violation arises from the
application of the statute to a specific set of facts and
circumstances. People v. Holman, 2017 IL 120655,
¶ 29. For that reason, the facts necessarily play a
critical role in the resolution of an as-applied
constitutional challenge. Both facial and as-applied
challenges face the same considerable burden of clearly
overcoming the strong judicial presumption that the statute
in question is constitutional. McElwain v. Office of the
Illinois Secretary of State, 2015 IL 117170, ¶ 14
(stating the presumption in the context of an as-applied
constitutional challenge); People v. Kitch, 239
Ill.2d 452, 466 (2011) (stating the presumption in the
context of a facial constitutional challenge). In fact, our
courts are obliged to construe all statutes so that they
comport with the applicable constitutional provisions
whenever reasonably possible. People v. Minnis, 2016
IL 119563, ¶ 21.
13 Because the constitutionality of a statute presents a
legal question, we review the present as-applied challenge to
the civil forfeiture statute de novo. People v.
One 1998 GMC, 2011 IL 110236, ¶ 20. We will, of
course, continue to give deference to the trial court's
underlying credibility and factual findings, reversing them
only if they are against the manifest weight of the evidence.
Kalata v. Anheuser-Busch Cos., 144 Ill.2d 425, 433
14 We note that the focus of the claimant's arguments has
changed significantly since the forfeiture proceedings began
in the trial court. In that court as well as the appellate
court, the claimant relied heavily on her status as an
"innocent owner, " insisting that she did not
knowingly consent to her husband driving the motorcycle on
the night of his arrest. Both courts rejected that argument,
with the appellate court concluding the manifest weight of
the evidence supported the trial court's factual finding
that the claimant permitted her husband to drive prior to his
arrest despite knowing that he was intoxicated and did not
have a driver's license. The appellate court also upheld
the trial court's determination that the claimant's
contrary exculpatory testimony was not credible. 2016 IL App
(5th) 150035, ¶ 25. Before this court, however, the
claimant has completely abandoned her prior legal argument,
now openly conceding that she knowingly consented to her
husband driving the motorcycle that night. After reviewing
the trial record, we agree with the appellate court that the
trial court's factual and credibility findings were not
against the manifest weight of the evidence. Therefore, we
will rely on those findings throughout the remainder of our
as-applied constitutional analysis.
15 The standard for whether a forfeiture violates the federal
excessive fines clause was first broadly set out by the
United States Supreme Court in United States v.
Bajakajian, 524 U.S. 321 (1998). In that case, the Court
addressed the constitutionality of requiring Hosep Bajakajian
to forfeit over $357, 000 in cash that he willfully attempted
to take out of the country without informing the United
States government, in violation of a federal reporting
statute. The district court found that the forfeiture of the
entire sum Bajakajian failed to report, as requested by the
government, would create an "extraordinarily harsh"
and "grossly disproportionate" penalty when
compared to his offense, thereby violating the excessive
fines clause of the eighth amendment. The Ninth Circuit Court
of Appeals affirmed. Bajakajian, 524 U.S. at 325-26.
16 The Supreme Court agreed, holding that the forfeiture of
the full amount of the cash undisclosed by Bajakajian would
create an eighth amendment violation. In reaching that
conclusion, the Court established the first broad analytical
framework for reviewing constitutional claims brought under
the excessive fines clause. After initially having
"little trouble" concluding the forfeiture of the
statutory amount was a "fine" for purposes of an
eighth amendment analysis, the Supreme Court discussed the
historical development of in rem and in
personam forfeitures, as well as their differences, and
concluded the federal forfeiture statute was derived from the
in personam criminal forfeiture tradition.
Bajakajian, 524 U.S. at 328-33. The Court then
addressed what it deemed to be the "touchstone" of
the excessive fines clause: proportionality. Proportionality
had long required "some relationship" between the
amount of the forfeiture and the gravity of the offense.
Until that case, however, the Court had not "articulated
a standard for determining whether a punitive forfeiture is
constitutionally excessive." Bajakajian, 524
U.S. at 334.
17 To fill that analytical void, the Court borrowed from its
own case law on the cruel and unusual punishments clause. In
recognition of the " 'substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes,
' " the Court expressly declined to require strict
proportionality between the forfeiture and the misconduct.
Bajakajian, 524 U.S. at 336 (quoting Solem v.
Helm, 463 U.S. 277, 290 (1983)). Instead, it held that
the proper standard for deciding if a specific punitive
forfeiture was constitutionally excessive, thereby violating
the eighth amendment's excessive fines clause, was if the
forfeiture was "grossly disproportional to the
gravity" of that misconduct. Bajakajian, 524
U.S. at 336-37. While continuing to recognize the traditional
distinctions between an in personam forfeiture and
the in rem forfeiture at issue here, the court
explained that the same "grossly disproportionate"
standard applies whenever a forfeiture is intended, at least
in part, to impose punishment. Bajakajian, 524 U.S.
at 332-34; Von Hofe v. United States, 492 F.3d 175,
184 (2d Cir. 2007).
18 Although this court has not reviewed an issue involving
the excessive fines clause since the Supreme Court decided
Bajakajian, in Waller, 162 Ill.2d at 90, we
relied on then-emerging federal case law to conclude that an
excessive fine clause challenge required a fact-intensive,
case-by-case approach. We also adopted a three-part test from
the federal courts. That test required courts to weigh (1)
the gravity of the offense against the harshness of the
penalty, (2) how integral the property was in the commission
of the offense, and (3) whether the criminal conduct "
'involving the defendant property was extensive in terms
of time and/or spatial use.' " Waller, 162
Ill.2d at 89-90 (quoting United States v. Real Property
Located at 6625 Zumirez Drive, 845 F.Supp. 725, 732
(C.D. Cal. 1994)). While those factors are not exclusive,
they provide the starting point for judicial review.
Waller, 162 Ill.2d at 90. Despite preceding the
Supreme Court's decision in Bajakajian, the
three-prong test in Waller largely foreshadowed both
the general standard announced in that case and the factors
later defined by federal case law (see, e.g.,
Von Hofe, 492 F.3d at 186).
19 Here, the parties' focus is largely on the first
factor, comparing the gravity of the offense to the harshness
of the forfeiture. The State argues that the motorcycle's
forfeiture was proportionate to the inherent dangers
presented by Mark's aggravated DUI. This court has
previously recognized the seriousness of the public safety
threat created by the commission of a DUI, especially when
the driver's license was already revoked due to a prior
DUI. The legislature has also undoubtedly deemed aggravated
DUI to be a serious criminal offense. See, e.g.,
People ex rel. Glasgow v. Carlson, 2016 IL 120544,
¶ 28 (acknowledging the seriousness of successive DUI
convictions). It is a Class 4 felony and carries a prison
sentence of one to three years, with a fine of up to $25,
000. 625 ILCS 5/11-501(d)(2)(A) (West 2014); 730 ILCS
5/5-4.5-45(a), 5-4.5-50(b) (West 2014). The State asserts
that the claimant's culpability in this case is high
because she knew her husband was intoxicated and had no
license but permitted him to drive the motorcycle anyway,
making her legally accountable for his criminal conduct.
20 The claimant, on the other hand, maintains that her
conduct was merely negligent. She points out that she was not
personally prosecuted for any offense that would have
subjected the motorcycle to forfeiture. According to her,
an unconstitutional imbalance exists between her minimal
culpability and her monetary loss due to the forfeiture. She
notes that forfeiture is generally disfavored. People v.
1991 Chevrolet Camaro, 251 Ill.App.3d 382, 388 (1993).
She also attempts to distinguish this case from the $28, 000
vehicle forfeiture approved in People v. One 2000
GMC, 357 Ill.App.3d 873 (2005), by arguing that the
claimant in One 2000 GMC pled guilty to DUI and
driving on a suspended license, while here she was not
prosecuted or convicted of any offense. She asserts that the
case most similar to this one is a Pennsylvania decision,
Commonwealth v. 1997 Chevrolet, 106 A.3d 836 (Pa.
Commw. Ct. 2014) (en banc). There, the appellate
court reversed an order forfeiting the homeowner's
residence and minivan because they were used to facilitate
$90 in controlled marijuana sales transacted by her son, who
lived with her, and remanded the cause for a new forfeiture
proceeding applying the proper test.
21 In our view, the Pennsylvania court's 1997
Chevrolet decision does not help this claimant. To the
contrary, that decision undermines her argument for a number
of reasons. First, the degree of knowledge the two property
owners had about the underlying offenses varied considerably.
The homeowner in 1997 Chevrolet consistently alleged
she did not know her son was selling drugs out of her home.
1997 Chevrolet, 106 A.3d at 844-45. In contrast,
here the claimant has now abandoned the "innocent
owner" defense that she maintained throughout the
proceedings in the trial and appellate courts, openly
admitting to this court that she knowingly consented to her
husband driving the motorcycle even though she knew he was
intoxicated and did not have a driver's license.
22 Second, the Pennsylvania court emphasized the unique
position that personal residences hold in eighth amendment
forfeiture analysis. The evidence in that case showed the
homeowner had resided in her house for over 30 years.
1997 Chevrolet, 106 A.3d at 848. The court noted
that the forfeiture of a home is "not readily
granted" and explained that courts have "
'traditionally drawn a distinction between one's
personal property and one's home, according the latter
far greater protection under the law.' " 1997
Chevrolet, 106 A.3d at 859 (quoting United States v.
Certain Lots in Virginia Beach, 657 F.Supp. 1062, 1065
(E.D. Va. 1987)). Here, the claimant has not attempted to
argue that her motorcycle warrants the same degree of
heightened protection provided to personal residences, and we
have found no case law to support that position.
23 Third, the Pennsylvania court expressly adopted the Second
Circuit Court of Appeals' analytical framework in Von
Hofe, 492 F.3d 175, to determine "the culpability
of a property owner who is not the perpetrator of the
criminal conduct that prompts the forfeiture." 1997
Chevrolet, 106 A.3d at 860. The analysis in Von
Hofe largely undercuts the claimant's arguments
before this court. As the Second Circuit explained, in an
in rem forfeiture such as this one, the legal
fiction of the property's purported "guilt" is
measured by examining "the relationship between the
property and the criminal offense." Von Hofe,
492 F.3d at 185. Here, the relationship between Mark's
aggravated DUI and the motorcycle is very close indeed; he
would not have committed that offense if he had not been
driving the claimant's motorcycle that night.
24 The Von Hofe decision also addressed the
traditional distinction between in rem and in
personam forfeitures. Unlike in in personam
forfeitures, the absence of criminal charges against the
claimant is not a hindrance in an in rem forfeiture
case. An in rem forfeiture may withstand
constitutional scrutiny even if the property owner has never
been criminally charged. "Neither conviction nor even
the commencement of criminal proceedings is a necessary
precondition to an in rem forfeiture. ***
Nonetheless, the culpability of a claimant is relevant to our
excessiveness determination." Von Hofe, 492
F.3d at 185.
25 In reviewing a property owner's degree of culpability,
a court must consider any "criminal conduct he or she
let transpire on the property." Von Hofe, 492
F.3d at 185. The Pennsylvania case relied on by the claimant
expressly agreed with the Second Circuit's decision to
look beyond any criminal charges in considering the
claimant's culpability, stating that "the property
owner's culpability must be evaluated by his own
knowledge and actions, not the knowledge and actions of the
wrongdoer." 1997 Chevrolet, 106 A.3d at 862.
That position is, however, completely contrary to the one
taken by the claimant at oral argument before this court.
During oral argument, counsel for the claimant alternatively
argued that Mark's criminal offense was the only relevant
consideration and, after further questioning by the court,
that we must look at the misconduct of both the claimant and
her husband in deciding whether the forfeiture was justified.
26 Applying the Von Hofe analysis, we conclude that
the claimant's culpability in her husband's
aggravated DUI was far more than negligible. Although the
claimant was not criminally prosecuted, she candidly admitted
to this court that she consented to her husband driving the
motorcycle on the night of his arrest despite knowing about
his intoxication and revoked license. Even in the absence of
that admission, however, we would have reached the same
conclusion. First, the trial court determined that the
claimant's exculpatory testimony during the forfeiture
hearing was not credible. We afford great deference to that
finding because that court was in a superior position to
evaluate the testimony and credibility of the witnesses than
is this court, with our review limited to a cold, written
record. People ex rel. Madigan v. J.T. Einoder,
Inc., 2015 IL 117193, ¶ 40. We cannot say that the
trial court erred in making its credibility determination.
27 Next, the forfeiture statute requires the State to
establish by a preponderance of the evidence that the vehicle
to be forfeited was "used with the knowledge and consent
of the owner in the commission of" one of the specified
offenses, in this case an aggravated DUI, after the
driver's license had been revoked for a prior DUI. 720
ILCS 5/36-1(a)(6)(A)(i), 36-2 (West 2012). At the time of
Mark's arrest, he undoubtedly had been driving the
claimant's motorcycle despite having a revoked
driver's license for the second time and a blood alcohol
concentration of over twice the legal limit in Illinois.
28 The record also shows, and the claimant now admits, that
she knew of those conditions at the time she consented to her
husband driving the couple home. A reasonable trier of fact
could conclude that, under the facts and circumstances of
this case, the claimant's conduct in knowingly granting
her husband consent to drive her motorcycle was more than
merely negligent. Based on the record and the deference we
necessarily give to the trier of fact, we cannot say that the
trial court's finding that the statutory perquisites for
civil forfeiture were satisfied was against the manifest
weight of the evidence. See Kalata, 144 Ill.2d at
433 (specifying the standard of review for findings made by
the trier of fact). The trial court's findings adequately
support the conclusion that the claimant bore more than
marginal culpability for both her husband's subsequent
aggravated DUI and the inherent public danger it created.
Accordingly, we reject the claimant's contention that she
lacked sufficient culpability for her husband's criminal
conduct to warrant the forfeiture of her motorcycle.
29 Nonetheless, the claimant maintains that the forfeiture of
her 2010 Harley-Davidson trike motorcycle was
constitutionally excessive because her financial loss from
the forfeiture was disproportionately large when compared to
her degree of culpability. Because we have already concluded
that the evidence supports the conclusion that the claimant
bore more than minimal culpability, we turn to the matter of
the financial loss incurred by the claimant when her
motorcycle was forfeited. The resolution of that question
necessarily requires evidence about the value of the
motorcycle. On that point, however, the record is woefully
lacking. It shows only that the claimant originally acquired
the motorcycle in May 2010 for the purchase price of $35, 000
and has continued to make payments of $160 every two weeks
since that time. The remaining balance due at the time of the
forfeiture hearing was approximately $6000. Critically, the
claimant failed to present any evidence on the value
of the motorcycle at or around the time of the forfeiture
30 Even though the claimant did not raise her as-applied
eighth amendment excessive fines clause challenge until after
the trial court had entered its forfeiture order, it
undoubtedly remains incumbent on her, as the party
challenging the constitutionality of the forfeiture statute,
to shoulder the heavy burden of rebutting the strong judicial
presumption of the statute's validity and establishing
the alleged as-applied constitutional violation. People
v. Rizzo, 2016 IL 118599, ¶ 23. On that count, the
claimant has fallen far short.
31 At oral argument, the claimant's counsel cited only
general public knowledge and common experience in speculating
that the motorcycle retained a substantial portion of its
initial value despite being subject to depreciation during
the four years between its purchase and its seizure by the
police. Supposition, however, does not suffice to carry the
claimant's burden of "clearly
establishing" that the application of a particular
statute is unconstitutional. (Emphasis in original.)
Rizzo, 2016 IL 118599, ¶ 48. All as-applied
challenges are, by definition, reliant on the application of
the law to the specific facts and circumstances
alleged by the challenger. "Therefore, it is paramount
that the record be sufficiently developed in terms of those
facts and circumstances for purposes of appellate
review." People v. Thompson, 2015 IL 118151,
¶ 37. "The challenger cannot shift the burden of
proof and research to the circuit court-it is his burden
alone to overcome the presumptions of unconstitutionality,
which exist for a reason." Rizzo, 2016 IL
118599, ¶ 48.
32 As this court explained in Rizzo, without an
evidentiary hearing and sufficient factual findings, a court
cannot properly conclude that a statute is unconstitutional
as applied. Any finding of a statute's
unconstitutionality as applied to a given set of facts would
be premature without a sufficient factual predicate.
Rizzo, 2016 IL 118599, ¶ 26. In this case, the
record is entirely devoid of any evidence on the
value of the motorcycle at the time of the forfeiture.
Without any evidentiary predicate, this court cannot conclude
that the claimant has met her substantial burden of
establishing that section 36-1 is unconstitutional as applied
to the specific facts and circumstances of this case. Our
abeyance is further warranted by our duty to construe
legislative enactments as constitutional whenever possible.
Minnis, 2016 IL 119563, ¶ 21. We cannot shirk
that duty here by intentionally overlooking the
challenger's complete failure to shoulder her burden of
establishing that the forfeiture ordered by the trial court
under the specific facts of this case is grossly
disproportionate to the property owner's culpability for
her personal misconduct. The claimant has simply not met her
burden of proof in mounting an as-applied constitutional
challenge to the forfeiture statute at issue.
33 Nonetheless, the claimant cites our legislature's
recently enacted reforms to the civil asset forfeiture scheme
in Illinois to support her constitutional challenge. The new
measures adopted include requiring law enforcement to provide
additional public disclosures as well as mandating judicial
proportionality review hearings in all forfeiture cases. At
those review hearings, the State must support its forfeiture
request with clear and convincing evidence, not just a
preponderance of the evidence. Critically, the effective date
of that legislation is July 1, 2018. Because the proceedings
in this case long preceded that future date, the new
requirements do not apply here. Consequently, we leave any
questions addressing the interaction between the newly
amended forfeiture provisions and the eighth amendment for
another day and the appropriate case.
34 III. CONCLUSION
35 Here, the trial court properly concluded that the State
provided enough proof to establish the statutory
prerequisites for civil forfeiture of the claimant's
motorcycle by a preponderance of the evidence. 720 ILCS
5/36-1 (West 2012). The evidence showed, and the claimant now
admits, that she knowingly gave her husband consent to drive
her 2010 Harley-Davidson trike motorcycle even though she
knew he was intoxicated and his driver's license had been
revoked. That revocation was an extension of an initial
revocation entered after her husband was convicted of driving
with a revoked license following multiple DUI convictions and
statutory summary suspensions. For the reasons previously
discussed, the claimant's culpability was sufficient to
subject the motorcycle to forfeiture. Moreover, because the
claimant did not present sufficient evidence of the value of
her 2010 Harley-Davidson trike motorcycle to enable this
court to determine whether its forfeiture constituted an
unconstitutionally excessive penalty, she has failed to meet
her substantial burden of proof in challenging the
constitutionality of the forfeiture statute as applied here.
36 For those reasons, we must reject her claim that section
36-1 of the Illinois forfeiture statute (720 ILCS 5/36-1
(West 2012)) violates the excessive fines clause of the
eighth amendment of the United States Constitution (U.S.
Const., amend. VIII) as applied to the facts in this case.
Due to our resolution of this matter, we need not address the
remainder of the eighth amendment excessive fines clause test
set out in Waller, 162 Ill.2d at 89-90. Accordingly,
we reverse the judgment of the appellate court that
overturned the trial court's forfeiture order because the
application of section 36-1 violated the eighth amendment. We
reinstate the trial court's order of forfeiture.
37 Appellate court judgment reversed.
38 Circuit court judgment affirmed.
39 CHIEF JUSTICE KARMEIER, dissenting:
40 Standing alone outside the Corner Place sports bar in the
middle of the night along an empty street in her small, rural
town, Petra Henderson had to make a difficult choice, and she
had to make it fast. Her husband, who had no driver's
license and was drunk again, had stepped out ahead of her as
they left the bar near closing time, jumped on her $35, 000
Harley-Davidson "trike" motorcycle, and insisted,
over her protests, that he be allowed to drive it home. Petra
was powerless to physically stop him, and they both knew it.
41 With the resigned pragmatism one might develop from being
married to a 59-year-old chronic drunk, Petra figured she had
only two options. Neither one was good. If she got on her
trike with her husband at the controls, she risked injury but
could at least exercise some oversight to make sure he drove
straight to their house, six-tenths of a mile away, without
hurting the trike or anyone they might encounter along the
way. If, on the other hand, she let him drive off without
her, it might be safer for her (although, of course, there
was still danger in her walking home alone after midnight),
but her husband would be left with unsupervised control over
her expensive vehicle and might simply decide to head off
into the night to "who knows where, " putting him,
the public, and her trike at considerable risk. Revving the
engine for effect, Petra's husband insisted she either
get on now or she would be walking.
42 She got on. They made it safely home after a drive that
could have taken no more than a couple of minutes and parked
the vehicle in the driveway of their house, but it proved to
be a costly decision. While the husband's engine revving
was intended to pressure Petra, it also attracted the
attention of local police, who followed the couple home with
lights flashing and siren blaring and placed the husband
43 Had Petra not been married to her husband, she could have
been prosecuted for a Class A misdemeanor for allowing him to
drive while under the influence of alcohol, an offense for
which the maximum statutory fine is $2500. Because she was
his spouse, however, she was not, as a matter of law, subject
even to that minor offense. In the eyes of the law, she was
guilty of nothing. That was not true of her husband. He was
charged with multiple offenses and ultimately pled guilty to
aggravated driving under the influence (DUI), for which he
was fined and given probation.
44 Although no evidence was presented that the wife had any
knowledge that her husband's conduct might constitute
aggravated DUI and although the State never sought to
implicate her in commission of that or any crime under an
accountability theory, it used the husband's offense as
justification to seize and then bring this in rem
civil forfeiture proceeding against her $35, 000 trike so
that it could keep and then sell the vehicle and use the
proceeds to support the Robinson Police
45 The appellate court unanimously and correctly held that
seizure and forfeiture of Petra's vehicle under the
circumstances of this case were incompatible with the eighth
amendment's excessive fines clause (U.S. Const., amend.
VIII) and that the circuit court's judgment granting the
State's forfeiture complaint must therefore be reversed.
2016 IL App (5th) 150035. A majority of my colleagues now
reverses the appellate court's judgment and reinstates
the trial court's forfeiture order. For the reasons that
follow, the majority's disposition interprets
Illinois's seizure and forfeiture statutes incorrectly,
applies that law in a way that yields an absurd result the
legislature could not have intended, upholds a determination
by the trial court that is contrary to the manifest weight of
the evidence, employs erroneous presumptions, fails to follow
the proper legal framework regarding the excessive fines
clause of the United States Constitution, cites erroneous
authority, and ultimately reaches a result that is opposite
the one commanded by the standards adopted by this court and
consistently followed by the courts of Illinois in assessing
whether an in rem civil forfeiture contravenes the
excessive fines clause. For all of these reasons, I
47 The vehicle at issue in these proceedings is a 2010
Harley-Davidson Tri Glide Ultra Classic three-wheeled (trike)
motorcycle owned by Petra (hereinafter the owner), who is
employed as a bus driver by "Rides Mass. Transit, "
a public transportation system in southeastern
Illinois. The owner had purchased the trike new for
$35, 000 and was making loan payments of $160 every two
weeks. The trike's value was not disputed by
the State at trial.
48 The vehicle was titled in the owner's name alone.
Although she was married, her husband (age 59 at the time of
these events) did not have, had never held, and did not claim
any ownership interest in the vehicle. The record showed that
the owner possessed a Class M license that permitted her to
operate the vehicle lawfully, and she did operate it herself.
While the husband maintained the vehicle as a hobby, there
was no evidence that he ever drove it, or was allowed to
drive it, on public roads. He would work on the vehicle at
the couple's house, taking it out of the garage and onto
the lawn in front of the house when it needed service.
49 The husband had a history of alcohol abuse reflected in a
criminal record dating back to the mid-1990s. At the time of
the events giving rise to this action, his driver's
license had been revoked for operating a motor vehicle while
under the influence. The revocation had been in place many
years and predated the owner's acquisition of the
vehicle. The record is silent as to whether the couple's
marriage came before or after the husband lost his license.
While the owner was aware that her husband's driver's
license had been revoked and that he was not allowed to
drive, no evidence was presented by the State to establish
that she had any knowledge that the basis for the revocation
was a DUI.
50 On Friday, April 25, 2014, the husband got off work before
the owner did and called her to suggest that they go for a
pleasure drive when she returned home from work. When she
agreed, he took the key fob for the vehicle from the hook
where it hung in the kitchen by the back door of the
couple's house so he could move the vehicle out of the
garage and prepare it for the drive. The vehicle did not need
an actual key to operate. The engine could be started with a
switch so long as the fob was within a certain distance (8 to
10 feet) of the vehicle. The fob could be carried by either
the passenger or the driver. As long as the requisite
proximity was maintained, the vehicle would operate.
51 With fob in pocket, the husband checked the vehicle's
tire pressure, dusted it off, started the engine, and pulled
it out of the garage. As soon as the owner returned home and
got ready for the drive, she took control of the vehicle, and
the couple began their trip. Their route for the evening was
a large (approximately 103-mile) loop beginning at their
house in Robinson, then going first to the village of Oblong.
From Oblong they proceeded to Lawrenceville. From
Lawrenceville they drove to Palestine and from Palestine they
returned to Robinson, stopping at a sports bar near their
house called the Corner Place. There is no dispute that the
owner drove the entire time.
52 The couple left the Corner Place, at approximately 12:30
a.m. on April 26, 2014. As they approached the vehicle, the
husband asked the owner to let him drive back home. The
husband testified that she said no because he did not have a
license and had too much to drink. Disregarding her
objections, he jumped on first, got behind the controls and
started it up. The owner "told [him] to get off or get
in the back rather. [H]e couldn't drive it." He
refused, kept revving the engine "to get her to get on,
" and told her he intended to take it home. She could
"either get on or walk." She got on. When asked if
the owner had ever allowed him to operate the trike that
night, he replied, "No, she didn't give me her
permission. She told me I ...