No. 2--00--0555	

__________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE		  )	Appeal from the Circuit Court

OF ILLINOIS,                    )  of McHenry County.

	)	 

     Plaintiff-Appellant,	)

						  )

v.						  )  No. 99--MR--153                                                 )

ONE 1984 PONTIAC PARISIENNE     )

SEDAN, VIN 2G2AK69H3E9729554,	)	

                                )

	Defendant                  )

                                )  Honorable

(Eric V. Wassilak, Claimant-    )  Thomas A. Schermerhorn, Sr.,

Appellee).                      )  Judge, Presiding.

_________________________________________________________________

	JUSTICE BOWMAN delivered theh opinion of the court: opi

	The State charged claimant, Eric V. Wassilak, with unlawful

possession of a controlled substance (720 ILCS 570/402(c) (West

1998)).  Claimant moved to suppress evidence that he alleged was

obtained illegally.  The circuit court granted the motion.  The day

after that ruling, the State filed a petition to forfeit a car

claimant allegedly used in the drug offense.  Relying on the

suppression order, claimant moved in limine to bar evidence that the car contained controlled substances.  The circuit court granted

the motion.  After holding a hearing at which the State put on no

evidence, the court denied the forfeiture petition.  Later,

pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137), the circuit court sanctioned the State.  The court found that the

forfeiture petition was frivolous because the State filed it

knowing that the circuit court had just suppressed the evidence

that the State would need to prevail in the forfeiture case.  The

State timely appealed.

	On appeal, the State does not contest the denial of its

forfeiture petition.  However, it argues that the circuit court

abused its discretion in sanctioning the State.  The State asserts

that, when it filed the petition, it had several reasonable grounds

to believe that the trial court's suppression order in the criminal

case did not make the forfeiture suit frivolous.  The State also

asserts that the court did not follow Rule 137 and that the trial

judge denied the State a fair hearing on the sanctions petition.  

	We hold that because the mere existence of the suppression

order did not make the filing of the forfeiture petition

unreasonable, the circuit court abused its discretion in

sanctioning the State.  We need not consider whether the trial

court misapplied Rule 137 or denied the State a fair hearing.  We

reverse the sanctions award and otherwise affirm the judgment.

	The facts are as follows.  On April 26, 1999, a police officer

stopped claimant for driving with an obstructed view (625 ILCS

5/12--503(c) (West 1998)), searched claimant and his car, and found

illegal drugs.  Claimant was charged with unlawful possession of a

controlled substance.  He moved to suppress the drugs, arguing that the stop of his car was unconstitutional.  On July 7, 1999, the

trial court granted the motion to suppress.  

	On July 8, 1999, the State filed a petition alleging that

claimant's car was subject to forfeiture under the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq. (West 1998)) because it had been used in the drug offense. 

Claimant filed an answer.  Relying on the suppression order in the

criminal case, claimant also moved in limine to bar the State from introducing any items the police found in the car or eliciting any

testimony that a controlled substance was found in the car. 

	On January 31, 2000, after the State appealed the suppression

order but before this court decided that appeal, the circuit court

held a hearing.  The parties first argued the motion in limine.  Claimant asserted that the State could not introduce illegally

obtained evidence at the forfeiture hearing.  He reasoned that the

court had already decided that the search of the car was illegal

and that the State could not relitigate that issue.  The State

responded in part that it had appealed the suppression order and

that the criminal case was still pending in the circuit court.

	The trial court granted the motion in limine.  The judge explained that the State filed the forfeiture petition in order to

circumvent his earlier ruling that the search of the car was

unconstitutional.  Thus, the circuit court had barred the evidence

and the State could not use it in this proceeding.

	After the State declined to dismiss the suit voluntarily, the

case proceeded to a hearing.  However, conceding it now had no

evidence to present, the State immediately rested.  The trial court

granted claimant a judgment.  Over the State's objection, the court

ordered that, pursuant to the Forfeiture Act, the State's

Attorney's office would pay claimant's costs and attorney fees.

	On March 1, 2000, claimant filed a petition for sanctions. 

The petition alleged in part that the forfeiture suit was frivolous

because the State should have realized that collateral estoppel

barred the State from using evidence that the court had suppressed

in the criminal case.  Claimant conceded that the Forfeiture Act

did not empower the court to assess costs or attorney fees against

the State.  However, he noted that Rule 137 gave the court such

power upon a timely petition, and he asked the court to treat his

petition as one for Rule 137 sanctions. 

	The State responded that, for a variety of reasons, the

forfeiture petition was not frivolous even though the order in the

criminal case had suppressed the evidence the State needed in the

forfeiture case.  The State maintained in part that, when it filed

the forfeiture petition, the appellate court had yet to decide the

State's appeal from the suppression order.  The attorneys who filed

the petition might reasonably hope that this court would reverse

the suppression order and enable the State to introduce the

evidence it needed to prevail on the forfeiture petition.  	

	On March 14, 2000, while claimant's petition was pending, this

court affirmed the trial court's suppression order in the criminal

case.  People v. Wassilak, No. 2--99--0790 (2000) (unpublished order under Supreme Court Rule 23).  One justice stated that the

State's appeal was altogether frivolous.  Wassilak, slip op.order at 11-13 (McLaren, J., specially concurring).

	On April 28, after arguments, the trial court ordered the

State to pay claimant $1,500 in attorney fees pursuant to Rule 137. 

The court explained that the State had acted unreasonably in filing

the forfeiture suit because the suppression order in the criminal

case had just deprived the State of any evidence it could use to

prove the allegations of the forfeiture petition.

	On appeal, the State advances several reasons why the trial court erred in imposing sanctions.  We need not consider most of

the State's arguments.  For the reasons that follow, we hold that,

under the governing law, the trial court abused its discretion in

sanctioning the State for filing the forfeiture petition. 

	As pertinent here, Rule 137 provides that, by signing a

pleading, an attorney certifies that he has read the pleading and

"that to the best of his *** belief formed after reasonable inquiry

it is well grounded in fact and is warranted by existing law or

good-faith argument for the extension, modification, or reversal of

existing law, and that it is not interposed for any improper

purpose."  155 Ill. 2d R. 137.  If a pleading violates this rule,

the court may sanction the attorney or the attorney's client.  155 Ill. 2d R. 137.  Because Rule 137 is penal, courts should construe

it strictly.  Belfour v. Schaumburg Auto, 306 Ill. App. 3d 234, 243 (1999).  The party seeking sanctions must prove that his opponent

has violated Rule 137.  Edward Yavitz Eye Center, Ltd. v. Allen, 241 Ill. App. 3d 562, 569 (1993).  On appeal, we shall not reverse

an award of sanctions unless the court abused its discretion. 

Belfour, 306 Ill. App. 3d at 243.

	Given the caution with which courts must apply Rule 137, we

conclude that the trial court abused its discretion in sanctioning

the State for filing the forfeiture petition.  It is true that the

State brought the petition the day after the court granted

claimant's motion to suppress the evidence in the criminal case. 

However, this fact by itself did not mean that the State had no

reason to believe it might prevail on the forfeiture petition.  

	When the State filed the petition, the suppression order in

Wassilak was still on appeal.  The State could reasonably hope that we would reverse that order and leave the State free to introduce

the evidence it needed to support the forfeiture petition. 

Eventually, we affirmed the suppression order.  However, having

examined our decision in Wassilak, we do not think that the State's appeal was so clearly doomed that the State should be penalized

because it did not assume that an affirmance of the suppression

order was inevitable.  (Indeed, in explaining why he thought the

forfeiture petition should not have been filed, the trial judge

conceded, "I don't know what the appellate court is going to do.")

	We also believe that the State should not be penalized for

refusing to await the outcome of the Wassilak appeal before filing the forfeiture petition.  Under the Act's time constraints, the

State simply did not have that luxury.  After receiving a notice of

seizure from the seizing agency, the State may wait no more than 45

days before notifying the property's owner of the impending

forfeiture.  725 ILCS 150/6(A) (West 1998).  After the notice of

the impending forfeiture takes effect, a claimant has 45 days to

file a verified claim and deposit a cost bond (725 ILCS

150/6(C)(1), (C)(2) (West 1998)).  Within 45 days of the receipt of

the claim and the cost bond, the State's Attorney must file a

forfeiture complaint.  725 ILCS 150/6(C)(2) (West 1998).  

	Here, the record demonstrates that the State could not have

postponed filing the forfeiture petition until this court ruled in Wassilak.  On June 16, 1999, claimant served the State with a copy of his verified claim.  On June 17, 1999, the claim was filed in

the circuit court.  Thus, if the State wanted to file a petition

for forfeiture, it had to do so by the first week of August 1999,

less than a month after the trial court entered the suppression

order in Wassilak.  On July 8, 1999, the State faced two choices: file the petition while the suppression order was in effect but

still subject to appeal and possible reversal, or abandon the

forfeiture action entirely.  Because the latter course was not the

only reasonable one, we hold the trial court exceeded its

discretion in punishing the State for electing the former course. 

	In concluding otherwise, the trial court apparently relied on

what it perceived as the collateral estoppel effect of its

suppression order.  The court reasoned that, after it barred the

crucial evidence, the State's forfeiture petition could succeed

only if the State were allowed to relitigate the findings the trial

court had just made at the suppression hearing.  Similarly,

claimant argues (as he did at the trial level) that, in filing its

forfeiture petition, the State inexcusably ignored settled

principles of collateral estoppel.  We disagree.  

	Collateral estoppel "bars the relitigation of particular

issues decided in another action between the same parties on a

different cause of action."  Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6, 20 (1992).  Three conditions must be met before a court

may apply collateral estoppel: (1) the issue decided in the first

case must be identical to the one presented in the second case; (2)

there must have been a final judgment on the merits in the first

case; and (3) the party against whom the estoppel is asserted must

have been a party to, or in privity with a party to, the first

case.  Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 152 (1994).  Here, the suppression order did not have collateral estoppel effect because the second of

these conditions was not satisfied.  

	Under settled Illinois law, a judgment is not final for

collateral estoppel purposes until the potential for appellate

review has been exhausted.  Ballweg v. City of Springfield, 114 Ill. 2d 107, 113 (1986).  A suppression order is technically

interlocutory, but courts will accord it collateral estoppel effect

as a "final judgment" if the State has forgone or exhausted any appellate review of the order.  See People v. Wiedman, 168 Ill. App. 3d 199, 206 (1988); People v. Neziroski, 102 Ill. App. 3d 720, 723 (1981).  However, under Ballweg, a suppression order cannot be final for collateral estoppel purposes if it is still subject to

appellate review.  

	Here, when the State filed the forfeiture petition, the

potential for appellate review of the suppression order had not

been exhausted and would not be exhausted until long after the

statutory deadline for filing a petition to forfeit the car that

was searched.  The forfeiture petition was not barred by collateral

estoppel.  We believe that the State's decision to proceed with it

was not otherwise so ill founded that imposing punitive sanctions

was a proper exercise of the trial court's discretion.  Therefore,

we reverse the sanctions award.  As the State does not appeal the

denial of its forfeiture petition, we affirm that part of the

judgment. 

	The judgment of the circuit court of McHenry County is

affirmed in part and reversed in part.

	Affirmed in part and reversed in part.

	BOWMAN, J., with RAPP and BYRRAPP and BYRNE, JJ., concurring.