In re P.S.
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 78910, 78944 cons.--Agenda 6--September 1996.
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.
Opinion filed January 30, 1997.
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 (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«, 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«, 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
(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 (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 (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 case
constitutes a remedial civil sanction and does not bar a subsequent
criminal prosecution.
We must first determine whether the legislature intended
the forfeiture that preceded the instant prosecution to be civil or
criminal in character. The property at issue in Kimery's case was
subject to forfeiture under section 505(a)(3) of the Illinois
Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56«, par.
1505(a)(3)). Forfeiture proceedings involving property seized
pursuant to that statute are governed by the Drug Asset Forfeiture
Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 56«,
pars. 1671 through 1684). See Ill. Rev. Stat. 1991, ch. 56«, par.
1505(c); Ill. Rev. Stat. 1991, ch. 56«, par. 1673. An examination
of the provisions of the Forfeiture Act reveals that the General
Assembly, in enacting the statute, intended to create a remedial
civil sanction. Many of the civil features identified in the
federal forfeiture statutes at issue in Ursery and 89 Firearms can
also be found in the Illinois act. Turning to the first part of our
inquiry, we believe that it is clear that the legislature intended
actions brought pursuant to the Forfeiture Act to be remedial civil
sanctions. As an initial matter, we note that the legislature has
expressly stated that the proceedings under the Forfeiture Act are
civil (Ill. Rev. Stat. 1991, ch. 56«, par. 1672) and are designed
to serve a remedial purpose (Ill. Rev. Stat. 1991, ch. 56«, par.
1683).
Various procedural mechanisms provided by the Forfeiture
Act further demonstrate the civil nature of those proceedings. The
action is in rem and not in personam. Ill. Rev. Stat. 1991, ch.
56«, pars. 1674, 1679. Furthermore, section 6 of the Forfeiture Act
provides a summary, nonjudicial proceeding for certain categories
of property if no claimant appears. Ill. Rev. Stat. 1991, ch. 56«,
par. 1676. The evidentiary burdens assigned by the Forfeiture Act
also indicate that judicial proceedings under the statute are civil
rather than criminal in character. For example, once the State
establishes the existence of probable cause for forfeiture of the
property, "the claimant has the burden of showing by a
preponderance of the evidence that the claimant's interest in the
property is not subject to forfeiture." Ill. Rev. Stat. 1991, ch.
56«, par. 1679(G). In addition, a claimant urging that the property
is exempt from forfeiture has the burden of establishing that
defense by a preponderance of the evidence. Ill. Rev. Stat. 1991,
ch. 56«, par. 1678. These provisions demonstrate that the
legislature intended to create a civil remedial sanction in the
Forfeiture Act. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 568-
69, 116 S. Ct. at 2147; 89 Firearms, 465 U.S. at 363-64, 79 L. Ed. 2d at 368-70, 104 S. Ct. at 1105-06.
Turning now to the second part of the test applied by the
Supreme Court in Ursery and 89 Firearms, we consider whether
proceedings brought under the Forfeiture Act "are so punitive in
form and effect as to render them criminal" notwithstanding the
legislature's intent to make them civil. We do not believe that the
sanction is so punitive that it overcomes the civil attributes we
have listed above. Proceedings under the Forfeiture Act serve
important nonpunitive goals. As the Supreme Court noted in Ursery,
requiring the forfeiture of property used to facilitate a drug
violation encourages owners "to take care in managing their
property and ensures that they will not permit that property to be
used for illegal purposes." Ursery, 518 U.S. at ___, 135 L. Ed. 2d
at 569, 116 S. Ct. at 2148. Moreover, as Ursery observes, in rem
civil forfeiture has not traditionally been viewed as punishment,
as that term is used in the double jeopardy context. A further
indication that the proceeding is not criminal is found in the
absence of a requirement of proof of scienter to sustain a
forfeiture order; property may be subject to forfeiture even if no
one appears to claim it (Ill. Rev. Stat. 1991, ch. 56«, par. 1676).
Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 570, 116 S. Ct. at 2149.
The Supreme Court's decision in Ursery also suggests that
several potentially punitive aspects of the Forfeiture Act, as
noted in our prior opinion in this case (P.S., 169 Ill. 2d at 283),
are not sufficient to overcome the essentially civil nature of the
sanction. Thus, the statutory provision of an "innocent owner"
defense to forfeiture actions (Ill. Rev. Stat. 1991, ch. 56«, par.
1678) is not fatal to the conclusion that forfeiture is a remedial
civil sanction. The avowedly deterrent aim of the statutory scheme
(Ill. Rev. Stat. 1991, ch. 56«, par. 1672) is also consistent with
its civil nature. Finally, that the Forfeiture Act does not come
into play until a criminal offense occurs does not defeat its civil
purpose, for the legislature may impose both civil and criminal
sanctions with respect to the same misconduct. Ursery, 518 U.S. at
___, 135 L. Ed. 2d at 570-71, 116 S. Ct. at 2149; see also 89
Firearms, 465 U.S. at 365-66, 79 L. Ed. 2d at 370-71, 104 S. Ct. at
1106-07.
For the reasons stated, we believe that the legislature
intended the forfeiture involved in Kimery's case to be merely a
civil sanction, and we therefore hold that the subsequent criminal
prosecution for the same underlying conduct does not implicate
double jeopardy concerns. As we recognized in our earlier opinion
in this case (P.S., 169 Ill. 2d at 282), the Forfeiture Act is
patterned after the federal forfeiture provisions found in 21
U.S.C. 881 (Ill. Rev. Stat. 1991, ch. 56«, par. 1672), and the
General Assembly has stated that provisions of the Illinois statute
should be interpreted in the same manner as are similar provisions
of the federal statute. Ill. Rev. Stat. 1991, ch. 56«, par. 1672.
One of the forfeiture statutes at issue in Ursery was the federal
counterpart to the Illinois act, so it is appropriate that we reach
the same result here, in light of the legislature's intent that the
Forfeiture Act receive the same construction. We thus conclude that
the prior forfeiture of Kimery's automobile, used in the drug
transaction that forms the basis for the criminal charge, does not
preclude on double jeopardy grounds a subsequent prosecution of
Kimery for that offense.
As a final matter, we turn briefly to the question
whether the same result must obtain under the double jeopardy
clause found in article I, section 10, of the Illinois Constitution
(Ill. Const. 1970, art. I, 10). As our earlier opinion in this
case noted, although Kimery and the other parties in P.S. invoked
the double jeopardy provisions of both the United States
Constitution and the Illinois Constitution in the circuit court
proceedings, they did not argue that the provision of the state
constitution granted greater protection or required a different
result. P.S., 169 Ill. 2d at 271. Accordingly, the issue has been
waived.
Moreover, we have previously interpreted our own state
constitution's double jeopardy clause in a manner that is
consistent with the United States Supreme Court's interpretation of
the double jeopardy clause of the fifth amendment. See People v.
Levin, 157 Ill. 2d 138, 160 (1993). Notably, in People v. 1988
Mercury Cougar, 154 Ill. 2d 27, 39 (1992), this court found no
double jeopardy bar under either the United States Constitution or
the Illinois Constitution to a forfeiture proceeding instituted
after the defendant's conviction for conduct giving rise to the
forfeiture. Nothing has occurred in the few years since that
decision that would alter our analysis of the state constitutional
guarantee, and thus we do not believe that the double jeopardy
provision of the Illinois Constitution would warrant a different
result in this case.
Brief comment should be made of the analysis proposed in
one of the dissenting opinions. That opinion notes that, by the
time of the 1970 state constitutional convention, most of the
provisions of the Bill of Rights of the United States Constitution
had been made applicable to the states. From that observation the
dissenting opinion infers that the drafters of the Illinois
Constitution must have intended the provisions of the state Bill of
Rights to supplement the United States Constitution and to stand
"as an additional protection" against governmental overreaching.
Slip op. at 11 (Heiple, C.J., dissenting). The dissent apparently
believes that the mere inclusion of a particular guarantee in the
state Bill of Rights, without more, demonstrates that the provision
means something different from the corresponding provision of the
Bill of Rights of the United States Constitution. This approach
leads to the conclusion that similar provisions of the federal and
state constitutions mean different things, even though they are
expressed in the same terms. Under this view, the Illinois drafters
did not adopt well-established meanings when they used familiar
words and phrases but instead always meant something different.
Notably, the dissenting opinion offers no citation to the
proceedings of the 1970 constitutional convention in support of
this novel theory.
In any event, this case is not an appropriate vehicle for
a reassessment of the lockstep doctrine, for consideration of that
question is unnecessary to our resolution of the present appeal. In
People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992), this court
rejected double jeopardy challenges, under both the federal and
state constitutions, to the same legislation at issue here. More
recently, in People v. Levin, 157 Ill. 2d 138 (1993), this court
held that the double jeopardy clause of our state constitution is
to be construed in the same manner as the double jeopardy clause of
the federal constitution. As we have already noted, the defendant
did not previously argue in the circuit court or before this court
that the double jeopardy provision of the state constitution should
be interpreted more expansively than its federal counterpart.
Given the precedents of 1988 Mercury Cougar and Levin,
this case is a curious forum in which to attempt to rekindle the
debate over the interpretation of similar state and federal
constitutional provisions. At the time of our original
consideration of this appeal, we would have adhered to our earlier
ruling in 1988 Mercury Cougar if we had not then believed that
later decisions by the United States Supreme Court compelled a
different result. With the meaning of those decisions clarified, we
may now reinstate the holding of 1988 Mercury Cougar.
For the reasons stated, the judgment of the appellate
court is reversed, and the cause is remanded to the circuit court
of Kane County for further proceedings consistent with this
opinion.
Reversed and remanded.
JUSTICE HARRISON took no part in the consideration or
decision of this case.
CHIEF JUSTICE HEIPLE, dissenting:
I agree with the majority's conclusion that the fifth
amendment of the United States Constitution, as interpreted by the
United States Supreme Court, does not prohibit the prosecution of
defendant Kimery for unlawful possession of a controlled substance
following the forfeiture of his automobile to the State. Because I
believe, however, that this determination does not end the inquiry
we must conduct as Illinois' highest court, I respectfully dissent.
Article I, section 10, of the Illinois Constitution
provides that "[n]o person shall *** be twice put in jeopardy for
the same offense." Ill. Const. 1970, art. I, 10. The majority
holds that this provision should be interpreted "in a manner that
is consistent with the United States Supreme Court's interpretation
of the double jeopardy clause of the fifth amendment." Slip op. at
8. I do not believe there is any persuasive justification for this
holding. No one would suggest that the United States Supreme Court
is bound to interpret provisions of the federal Constitution in a
manner that is consistent with this court's interpretation of
similar provisions of the Illinois Constitution. As I have stated
previously, I believe the converse of such a suggestion to be
equally insupportable. See People v. Mitchell, 165 Ill. 2d 211,
233-35 (1995) (Heiple, J., dissenting).
The Illinois Bill of Rights, contained in article I of
the Illinois Constitution, was enacted by citizens of this state to
protect themselves against unwarranted deprivation of their lives,
liberty, and property by the state's government. The most recent
version of the state constitution was ratified by the people in
1970. At that time, nearly all of the provisions of the United
States Constitution's Bill of Rights had been construed by the
United States Supreme Court to constrain state governments as well
as the federal government. The Illinois Bill of Rights must
therefore have been intended to serve as an additional protection
against abuses of power by state government, supplemental to the
safeguards provided by the United States Constitution. In light of
this fact, I consider it a dereliction of our duties as Illinois
judges to delegate the function of interpreting our state
constitution to the United States Supreme Court in the manner
dictated by the majority. Rather, I believe that our oaths of
office require "that the seven justices of this court *** bring to
bear on every important constitutional issue their independent
resources of wisdom, judgment, and experience." People ex rel.
Daley v. Joyce, 126 Ill. 2d 209, 226 (1988) (Clark, J.,
concurring).
Applying this interpretive approach, I would hold that
prosecuting defendant for unlawful possession of a controlled
substance following the forfeiture of the automobile which was
allegedly used to facilitate that offense violates article I,
section 10, of the Illinois Constitution. Initially, I note that I
disagree with the majority that defendant has waived this issue.
Defendant contended, both in the circuit court and on appeal, that
his prosecution violated the state constitution. Moreover, he was
not afforded an opportunity to rebrief this argument upon remand of
this case from the United States Supreme Court. I believe we
therefore have a responsibility to address the issue.
The plain wording of section 10 prohibits putting a
person in jeopardy twice for the same offense. The determinative
question is thus whether the forfeiture of defendant's automobile
to the state based on the vehicle's alleged use in facilitating a
crime constitutes putting defendant in jeopardy for the commission
of that crime. If it does, the state is barred from conducting a
separate proceeding that also puts defendant in jeopardy for that
crime.
I believe that the forfeiture which the state effected
here clearly put defendant in jeopardy for an offense that was the
same as that for which he was later prosecuted. The Illinois
Constitution prohibits the undue deprivation not only of a person's
life and liberty, but also of his property. Ill. Const. 1970, art.
I, 2. A proceeding brought to deprive a person of property based
on his commission of a crime thus puts him "in jeopardy" for that
crime just as surely as does a proceeding to deprive him of
liberty. Likewise, it is clear that the two instances of jeopardy
here were directed at the "same offense," because defendant was
charged with committing only one illegal act, namely, unlawful
possession of a controlled substance. But for the commission of
this offense, there was no basis for the forfeiture, since
" `[t]here is nothing even remotely criminal in possessing an
automobile.' " Austin v. United States, 509 U.S. 602, 621, 125 L. Ed. 2d 488, 505, 113 S. Ct. 2801, 2811 (1993), quoting One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 14 L. Ed. 2d 170, 174, 85 S. Ct. 1246, 1250 (1965).
I am not persuaded by the majority's arguments that a
forfeiture such as this does not place a defendant in jeopardy for
commission of an offense. First, I consider it irrelevant that the
legislature may have intended the forfeiture to be civil rather
than criminal in character. See slip op. at 5-6. If an action by
the government violates a constitutional prohibition, no amount of
evidence manifesting the legislature's purportedly benign intent in
authorizing that action can render the action constitutional. I
consider it similarly irrelevant, in assessing the
constitutionality of a statute under our state constitution, that
the legislature has expressed an intention that statutory
construction of the provision comport with the interpretation of
similar statutes by the federal courts. See slip op. at 7-8.
I am also not persuaded by the majority's assertion that
"important nonpunitive goals" of the instant forfeiture immunize it
from constitutional challenge under double jeopardy principles. See
slip op. at 6. In our prior opinion in this case, we held that a
forfeiture of property violates double jeopardy if it serves even
in part to punish the defendant. In re P.S., 169 Ill. 2d 260, 282
(1996). We then proceeded to hold that various punitive aspects of
the forfeiture, including its avowedly deterrent aim, its "innocent
owner" defense, and its dependence on an underlying criminal
violation, rendered it subject to double jeopardy constraints.
P.S., 169 Ill. 2d at 283. I believed this analysis to be persuasive
at the time our previous opinion was issued, and I remain persuaded
despite the United States Supreme Court's contrary interpretation
of the United States Constitution.
In People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992),
this court held that the forfeiture of a vehicle in a proceeding
separate from a prosecution for an underlying drug offense does not
constitute double jeopardy. That opinion, however, interpreted
federal precedent only, and did not specifically address the
applicability of article I, section 10, of the Illinois
Constitution. In People v. Levin, 157 Ill. 2d 138 (1993), we
refused to interpret article 1, section 10 more broadly than the
United States Constitution's double jeopardy provision. Levin,
however, dealt only with the application of double jeopardy
principles to noncapital sentencing procedures. Levin, 157 Ill. 2d
at 160. I believe that striking the proper balance between law
enforcement and individual liberty in the ever-escalating "war on
drugs" now requires that this court exercise its independent
judgment in declaring unconstitutional forfeitures conducted in the
manner evidenced here. See People v. Mitchell, 165 Ill. 2d 211,
233-35 (1995) (Heiple, J., dissenting).
Because I believe that defendant has been twice put in
jeopardy for the same offense in violation of the Illinois
Constitution, I would affirm the judgment of the appellate court.
JUSTICE NICKELS joins in this dissent.
JUSTICE NICKELS, also dissenting:
In light of the United States Supreme Court's decision in
United States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), I agree with the majority's conclusion that the
double jeopardy clause of the United States Constitution does not
forbid Kimery's criminal prosecution. Nonetheless, I believe Kimery
is protected from prosecution under our state constitution's double
jeopardy clause (Ill. Const. 1970, art. I, 10).
We are bound to follow the United States Supreme Court's
decisions on matters of federal constitutional law. However, the
obligation to apply those decisions when interpreting parallel
provisions of our state constitution is one that this court has
imposed upon itself under the so-called "lockstep doctrine." Under
this doctrine, courts apply decisions of the United States Supreme
Court based on federal constitutional provisions to the
construction of comparable provisions of the state constitution
unless the language of the state constitution or debates and
committee reports of the constitutional convention show that the
framers intended a different construction. People v. DiGuida, 152 Ill. 2d 104, 118 (1992); see also People v. Mitchell, 165 Ill. 2d 211, 217 (1995). Thus, the determination whether to follow United
States Supreme Court precedent depends on a comparison of the state
and federal constitutions; the quality of the reasoning underlying
the Court's decisions plays no role in the calculus.
I believe the time has come to reconsider the lockstep
approach in this respect. Where a provision of the state
constitution was intended to have the same meaning as a federal
constitutional provision, decisions of the United States Supreme
Court are entitled to consideration. However, examination of the
reasoning behind those decisions should not categorically be
foreclosed. I would follow the approach suggested by Justice Clark
in his concurrence in People ex rel. Daley v. Joyce, 126 Ill. 2d 209 (1988):
"[A]s to our State constitutional provisions,
Federal precedents are not stare decisis. They are
persuasive and not determinative. Where their
reasoning persuades us, we should follow them.
Where they do not, we should not." Joyce, 126 Ill. 2d at 225 (Clark, J., concurring).
I dissent not because I believe the state and federal
double jeopardy provisions necessarily have different meanings.
Rather, I dissent because I am convinced that the Court's decision
in Ursery fails to give the double jeopardy clause its proper
effect, and in interpreting our state constitution, this court is
not obliged to make the same error. Ursery is premised upon the
fanciful notion that in an in rem civil forfeiture proceeding, it
is the seized property that is punished rather than the owner of
the property. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 576,
116 S. Ct. at 2153 (Stevens, J., concurring in part & dissenting in
part). Justice Stevens' partial dissent in Ursery persuasively
demonstrates that the majority opinion in that case represents an
abrupt and unwarranted departure from the Court's prior double
jeopardy jurisprudence. See Ursery, 518 U.S at ___, 135 L. Ed. 2d
at 574-89, 116 S. Ct. at 2152-63. (Stevens, J., concurring in part
& dissenting in part). I am convinced that our original opinion in
this case, In re P.S., 169 Ill. 2d 260 (1996), properly applied the
applicable double jeopardy principles and reached the correct
result. For purposes of our state constitution, I would adhere to
the analysis in our original opinion.
For the foregoing reasons, I respectfully dissent.
CHIEF JUSTICE HEIPLE joins in this dissent.
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 78910, 78944 cons.--Agenda 6--September 1996.
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.
Opinion filed January 30, 1997.
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 (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«, 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«, 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
(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 (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 (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 case
constitutes a remedial civil sanction and does not bar a subsequent
criminal prosecution.
We must first determine whether the legislature intended
the forfeiture that preceded the instant prosecution to be civil or
criminal in character. The property at issue in Kimery's case was
subject to forfeiture under section 505(a)(3) of the Illinois
Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56«, par.
1505(a)(3)). Forfeiture proceedings involving property seized
pursuant to that statute are governed by the Drug Asset Forfeiture
Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 56«,
pars. 1671 through 1684). See Ill. Rev. Stat. 1991, ch. 56«, par.
1505(c); Ill. Rev. Stat. 1991, ch. 56«, par. 1673. An examination
of the provisions of the Forfeiture Act reveals that the General
Assembly, in enacting the statute, intended to create a remedial
civil sanction. Many of the civil features identified in the
federal forfeiture statutes at issue in Ursery and 89 Firearms can
also be found in the Illinois act. Turning to the first part of our
inquiry, we believe that it is clear that the legislature intended
actions brought pursuant to the Forfeiture Act to be remedial civil
sanctions. As an initial matter, we note that the legislature has
expressly stated that the proceedings under the Forfeiture Act are
civil (Ill. Rev. Stat. 1991, ch. 56«, par. 1672) and are designed
to serve a remedial purpose (Ill. Rev. Stat. 1991, ch. 56«, par.
1683).
Various procedural mechanisms provided by the Forfeiture
Act further demonstrate the civil nature of those proceedings. The
action is in rem and not in personam. Ill. Rev. Stat. 1991, ch.
56«, pars. 1674, 1679. Furthermore, section 6 of the Forfeiture Act
provides a summary, nonjudicial proceeding for certain categories
of property if no claimant appears. Ill. Rev. Stat. 1991, ch. 56«,
par. 1676. The evidentiary burdens assigned by the Forfeiture Act
also indicate that judicial proceedings under the statute are civil
rather than criminal in character. For example, once the State
establishes the existence of probable cause for forfeiture of the
property, "the claimant has the burden of showing by a
preponderance of the evidence that the claimant's interest in the
property is not subject to forfeiture." Ill. Rev. Stat. 1991, ch.
56«, par. 1679(G). In addition, a claimant urging that the property
is exempt from forfeiture has the burden of establishing that
defense by a preponderance of the evidence. Ill. Rev. Stat. 1991,
ch. 56«, par. 1678. These provisions demonstrate that the
legislature intended to create a civil remedial sanction in the
Forfeiture Act. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 568-
69, 116 S. Ct. at 2147; 89 Firearms, 465 U.S. at 363-64, 79 L. Ed. 2d at 368-70, 104 S. Ct. at 1105-06.
Turning now to the second part of the test applied by the
Supreme Court in Ursery and 89 Firearms, we consider whether
proceedings brought under the Forfeiture Act "are so punitive in
form and effect as to render them criminal" notwithstanding the
legislature's intent to make them civil. We do not believe that the
sanction is so punitive that it overcomes the civil attributes we
have listed above. Proceedings under the Forfeiture Act serve
important nonpunitive goals. As the Supreme Court noted in Ursery,
requiring the forfeiture of property used to facilitate a drug
violation encourages owners "to take care in managing their
property and ensures that they will not permit that property to be
used for illegal purposes." Ursery, 518 U.S. at ___, 135 L. Ed. 2d
at 569, 116 S. Ct. at 2148. Moreover, as Ursery observes, in rem
civil forfeiture has not traditionally been viewed as punishment,
as that term is used in the double jeopardy context. A further
indication that the proceeding is not criminal is found in the
absence of a requirement of proof of scienter to sustain a
forfeiture order; property may be subject to forfeiture even if no
one appears to claim it (Ill. Rev. Stat. 1991, ch. 56«, par. 1676).
Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 570, 116 S. Ct. at 2149.
The Supreme Court's decision in Ursery also suggests that
several potentially punitive aspects of the Forfeiture Act, as
noted in our prior opinion in this case (P.S., 169 Ill. 2d at 283),
are not sufficient to overcome the essentially civil nature of the
sanction. Thus, the statutory provision of an "innocent owner"
defense to forfeiture actions (Ill. Rev. Stat. 1991, ch. 56«, par.
1678) is not fatal to the conclusion that forfeiture is a remedial
civil sanction. The avowedly deterrent aim of the statutory scheme
(Ill. Rev. Stat. 1991, ch. 56«, par. 1672) is also consistent with
its civil nature. Finally, that the Forfeiture Act does not come
into play until a criminal offense occurs does not defeat its civil
purpose, for the legislature may impose both civil and criminal
sanctions with respect to the same misconduct. Ursery, 518 U.S. at
___, 135 L. Ed. 2d at 570-71, 116 S. Ct. at 2149; see also 89
Firearms, 465 U.S. at 365-66, 79 L. Ed. 2d at 370-71, 104 S. Ct. at
1106-07.
For the reasons stated, we believe that the legislature
intended the forfeiture involved in Kimery's case to be merely a
civil sanction, and we therefore hold that the subsequent criminal
prosecution for the same underlying conduct does not implicate
double jeopardy concerns. As we recognized in our earlier opinion
in this case (P.S., 169 Ill. 2d at 282), the Forfeiture Act is
patterned after the federal forfeiture provisions found in 21
U.S.C. 881 (Ill. Rev. Stat. 1991, ch. 56«, par. 1672), and the
General Assembly has stated that provisions of the Illinois statute
should be interpreted in the same manner as are similar provisions
of the federal statute. Ill. Rev. Stat. 1991, ch. 56«, par. 1672.
One of the forfeiture statutes at issue in Ursery was the federal
counterpart to the Illinois act, so it is appropriate that we reach
the same result here, in light of the legislature's intent that the
Forfeiture Act receive the same construction. We thus conclude that
the prior forfeiture of Kimery's automobile, used in the drug
transaction that forms the basis for the criminal charge, does not
preclude on double jeopardy grounds a subsequent prosecution of
Kimery for that offense.
As a final matter, we turn briefly to the question
whether the same result must obtain under the double jeopardy
clause found in article I, section 10, of the Illinois Constitution
(Ill. Const. 1970, art. I, 10). As our earlier opinion in this
case noted, although Kimery and the other parties in P.S. invoked
the double jeopardy provisions of both the United States
Constitution and the Illinois Constitution in the circuit court
proceedings, they did not argue that the provision of the state
constitution granted greater protection or required a different
result. P.S., 169 Ill. 2d at 271. Accordingly, the issue has been
waived.
Moreover, we have previously interpreted our own state
constitution's double jeopardy clause in a manner that is
consistent with the United States Supreme Court's interpretation of
the double jeopardy clause of the fifth amendment. See People v.
Levin, 157 Ill. 2d 138, 160 (1993). Notably, in People v. 1988
Mercury Cougar, 154 Ill. 2d 27, 39 (1992), this court found no
double jeopardy bar under either the United States Constitution or
the Illinois Constitution to a forfeiture proceeding instituted
after the defendant's conviction for conduct giving rise to the
forfeiture. Nothing has occurred in the few years since that
decision that would alter our analysis of the state constitutional
guarantee, and thus we do not believe that the double jeopardy
provision of the Illinois Constitution would warrant a different
result in this case.
Brief comment should be made of the analysis proposed in
one of the dissenting opinions. That opinion notes that, by the
time of the 1970 state constitutional convention, most of the
provisions of the Bill of Rights of the United States Constitution
had been made applicable to the states. From that observation the
dissenting opinion infers that the drafters of the Illinois
Constitution must have intended the provisions of the state Bill of
Rights to supplement the United States Constitution and to stand
"as an additional protection" against governmental overreaching.
Slip op. at 11 (Heiple, C.J., dissenting). The dissent apparently
believes that the mere inclusion of a particular guarantee in the
state Bill of Rights, without more, demonstrates that the provision
means something different from the corresponding provision of the
Bill of Rights of the United States Constitution. This approach
leads to the conclusion that similar provisions of the federal and
state constitutions mean different things, even though they are
expressed in the same terms. Under this view, the Illinois drafters
did not adopt well-established meanings when they used familiar
words and phrases but instead always meant something different.
Notably, the dissenting opinion offers no citation to the
proceedings of the 1970 constitutional convention in support of
this novel theory.
In any event, this case is not an appropriate vehicle for
a reassessment of the lockstep doctrine, for consideration of that
question is unnecessary to our resolution of the present appeal. In
People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992), this court
rejected double jeopardy challenges, under both the federal and
state constitutions, to the same legislation at issue here. More
recently, in People v. Levin, 157 Ill. 2d 138 (1993), this court
held that the double jeopardy clause of our state constitution is
to be construed in the same manner as the double jeopardy clause of
the federal constitution. As we have already noted, the defendant
did not previously argue in the circuit court or before this court
that the double jeopardy provision of the state constitution should
be interpreted more expansively than its federal counterpart.
Given the precedents of 1988 Mercury Cougar and Levin,
this case is a curious forum in which to attempt to rekindle the
debate over the interpretation of similar state and federal
constitutional provisions. At the time of our original
consideration of this appeal, we would have adhered to our earlier
ruling in 1988 Mercury Cougar if we had not then believed that
later decisions by the United States Supreme Court compelled a
different result. With the meaning of those decisions clarified, we
may now reinstate the holding of 1988 Mercury Cougar.
For the reasons stated, the judgment of the appellate
court is reversed, and the cause is remanded to the circuit court
of Kane County for further proceedings consistent with this
opinion.
Reversed and remanded.
JUSTICE HARRISON took no part in the consideration or
decision of this case.
CHIEF JUSTICE HEIPLE, dissenting:
I agree with the majority's conclusion that the fifth
amendment of the United States Constitution, as interpreted by the
United States Supreme Court, does not prohibit the prosecution of
defendant Kimery for unlawful possession of a controlled substance
following the forfeiture of his automobile to the State. Because I
believe, however, that this determination does not end the inquiry
we must conduct as Illinois' highest court, I respectfully dissent.
Article I, section 10, of the Illinois Constitution
provides that "[n]o person shall *** be twice put in jeopardy for
the same offense." Ill. Const. 1970, art. I, 10. The majority
holds that this provision should be interpreted "in a manner that
is consistent with the United States Supreme Court's interpretation
of the double jeopardy clause of the fifth amendment." Slip op. at
8. I do not believe there is any persuasive justification for this
holding. No one would suggest that the United States Supreme Court
is bound to interpret provisions of the federal Constitution in a
manner that is consistent with this court's interpretation of
similar provisions of the Illinois Constitution. As I have stated
previously, I believe the converse of such a suggestion to be
equally insupportable. See People v. Mitchell, 165 Ill. 2d 211,
233-35 (1995) (Heiple, J., dissenting).
The Illinois Bill of Rights, contained in article I of
the Illinois Constitution, was enacted by citizens of this state to
protect themselves against unwarranted deprivation of their lives,
liberty, and property by the state's government. The most recent
version of the state constitution was ratified by the people in
1970. At that time, nearly all of the provisions of the United
States Constitution's Bill of Rights had been construed by the
United States Supreme Court to constrain state governments as well
as the federal government. The Illinois Bill of Rights must
therefore have been intended to serve as an additional protection
against abuses of power by state government, supplemental to the
safeguards provided by the United States Constitution. In light of
this fact, I consider it a dereliction of our duties as Illinois
judges to delegate the function of interpreting our state
constitution to the United States Supreme Court in the manner
dictated by the majority. Rather, I believe that our oaths of
office require "that the seven justices of this court *** bring to
bear on every important constitutional issue their independent
resources of wisdom, judgment, and experience." People ex rel.
Daley v. Joyce, 126 Ill. 2d 209, 226 (1988) (Clark, J.,
concurring).
Applying this interpretive approach, I would hold that
prosecuting defendant for unlawful possession of a controlled
substance following the forfeiture of the automobile which was
allegedly used to facilitate that offense violates article I,
section 10, of the Illinois Constitution. Initially, I note that I
disagree with the majority that defendant has waived this issue.
Defendant contended, both in the circuit court and on appeal, that
his prosecution violated the state constitution. Moreover, he was
not afforded an opportunity to rebrief this argument upon remand of
this case from the United States Supreme Court. I believe we
therefore have a responsibility to address the issue.
The plain wording of section 10 prohibits putting a
person in jeopardy twice for the same offense. The determinative
question is thus whether the forfeiture of defendant's automobile
to the state based on the vehicle's alleged use in facilitating a
crime constitutes putting defendant in jeopardy for the commission
of that crime. If it does, the state is barred from conducting a
separate proceeding that also puts defendant in jeopardy for that
crime.
I believe that the forfeiture which the state effected
here clearly put defendant in jeopardy for an offense that was the
same as that for which he was later prosecuted. The Illinois
Constitution prohibits the undue deprivation not only of a person's
life and liberty, but also of his property. Ill. Const. 1970, art.
I, 2. A proceeding brought to deprive a person of property based
on his commission of a crime thus puts him "in jeopardy" for that
crime just as surely as does a proceeding to deprive him of
liberty. Likewise, it is clear that the two instances of jeopardy
here were directed at the "same offense," because defendant was
charged with committing only one illegal act, namely, unlawful
possession of a controlled substance. But for the commission of
this offense, there was no basis for the forfeiture, since
" `[t]here is nothing even remotely criminal in possessing an
automobile.' " Austin v. United States, 509 U.S. 602, 621, 125 L. Ed. 2d 488, 505, 113 S. Ct. 2801, 2811 (1993), quoting One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 14 L. Ed. 2d 170, 174, 85 S. Ct. 1246, 1250 (1965).
I am not persuaded by the majority's arguments that a
forfeiture such as this does not place a defendant in jeopardy for
commission of an offense. First, I consider it irrelevant that the
legislature may have intended the forfeiture to be civil rather
than criminal in character. See slip op. at 5-6. If an action by
the government violates a constitutional prohibition, no amount of
evidence manifesting the legislature's purportedly benign intent in
authorizing that action can render the action constitutional. I
consider it similarly irrelevant, in assessing the
constitutionality of a statute under our state constitution, that
the legislature has expressed an intention that statutory
construction of the provision comport with the interpretation of
similar statutes by the federal courts. See slip op. at 7-8.
I am also not persuaded by the majority's assertion that
"important nonpunitive goals" of the instant forfeiture immunize it
from constitutional challenge under double jeopardy principles. See
slip op. at 6. In our prior opinion in this case, we held that a
forfeiture of property violates double jeopardy if it serves even
in part to punish the defendant. In re P.S., 169 Ill. 2d 260, 282
(1996). We then proceeded to hold that various punitive aspects of
the forfeiture, including its avowedly deterrent aim, its "innocent
owner" defense, and its dependence on an underlying criminal
violation, rendered it subject to double jeopardy constraints.
P.S., 169 Ill. 2d at 283. I believed this analysis to be persuasive
at the time our previous opinion was issued, and I remain persuaded
despite the United States Supreme Court's contrary interpretation
of the United States Constitution.
In People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992),
this court held that the forfeiture of a vehicle in a proceeding
separate from a prosecution for an underlying drug offense does not
constitute double jeopardy. That opinion, however, interpreted
federal precedent only, and did not specifically address the
applicability of article I, section 10, of the Illinois
Constitution. In People v. Levin, 157 Ill. 2d 138 (1993), we
refused to interpret article 1, section 10 more broadly than the
United States Constitution's double jeopardy provision. Levin,
however, dealt only with the application of double jeopardy
principles to noncapital sentencing procedures. Levin, 157 Ill. 2d
at 160. I believe that striking the proper balance between law
enforcement and individual liberty in the ever-escalating "war on
drugs" now requires that this court exercise its independent
judgment in declaring unconstitutional forfeitures conducted in the
manner evidenced here. See People v. Mitchell, 165 Ill. 2d 211,
233-35 (1995) (Heiple, J., dissenting).
Because I believe that defendant has been twice put in
jeopardy for the same offense in violation of the Illinois
Constitution, I would affirm the judgment of the appellate court.
JUSTICE NICKELS joins in this dissent.
JUSTICE NICKELS, also dissenting:
In light of the United States Supreme Court's decision in
United States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), I agree with the majority's conclusion that the
double jeopardy clause of the United States Constitution does not
forbid Kimery's criminal prosecution. Nonetheless, I believe Kimery
is protected from prosecution under our state constitution's double
jeopardy clause (Ill. Const. 1970, art. I, 10).
We are bound to follow the United States Supreme Court's
decisions on matters of federal constitutional law. However, the
obligation to apply those decisions when interpreting parallel
provisions of our state constitution is one that this court has
imposed upon itself under the so-called "lockstep doctrine." Under
this doctrine, courts apply decisions of the United States Supreme
Court based on federal constitutional provisions to the
construction of comparable provisions of the state constitution
unless the language of the state constitution or debates and
committee reports of the constitutional convention show that the
framers intended a different construction. People v. DiGuida, 152 Ill. 2d 104, 118 (1992); see also People v. Mitchell, 165 Ill. 2d 211, 217 (1995). Thus, the determination whether to follow United
States Supreme Court precedent depends on a comparison of the state
and federal constitutions; the quality of the reasoning underlying
the Court's decisions plays no role in the calculus.
I believe the time has come to reconsider the lockstep
approach in this respect. Where a provision of the state
constitution was intended to have the same meaning as a federal
constitutional provision, decisions of the United States Supreme
Court are entitled to consideration. However, examination of the
reasoning behind those decisions should not categorically be
foreclosed. I would follow the approach suggested by Justice Clark
in his concurrence in People ex rel. Daley v. Joyce, 126 Ill. 2d 209 (1988):
"[A]s to our State constitutional provisions,
Federal precedents are not stare decisis. They are
persuasive and not determinative. Where their
reasoning persuades us, we should follow them.
Where they do not, we should not." Joyce, 126 Ill. 2d at 225 (Clark, J., concurring).
I dissent not because I believe the state and federal
double jeopardy provisions necessarily have different meanings.
Rather, I dissent because I am convinced that the Court's decision
in Ursery fails to give the double jeopardy clause its proper
effect, and in interpreting our state constitution, this court is
not obliged to make the same error. Ursery is premised upon the
fanciful notion that in an in rem civil forfeiture proceeding, it
is the seized property that is punished rather than the owner of
the property. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 576,
116 S. Ct. at 2153 (Stevens, J., concurring in part & dissenting in
part). Justice Stevens' partial dissent in Ursery persuasively
demonstrates that the majority opinion in that case represents an
abrupt and unwarranted departure from the Court's prior double
jeopardy jurisprudence. See Ursery, 518 U.S at ___, 135 L. Ed. 2d
at 574-89, 116 S. Ct. at 2152-63. (Stevens, J., concurring in part
& dissenting in part). I am convinced that our original opinion in
this case, In re P.S., 169 Ill. 2d 260 (1996), properly applied the
applicable double jeopardy principles and reached the correct
result. For purposes of our state constitution, I would adhere to
the analysis in our original opinion.
For the foregoing reasons, I respectfully dissent.
CHIEF JUSTICE HEIPLE joins in this dissent.
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