2014 IL App (2d) 1 30906 No. 2

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- 0906 Opinion filed July 8, 2014

______________________________________________________________________________ IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County

. ) Petitioner

- Appellee , ) ) v. ) Nos. 10

- CM

- 1830 ) 10

- CM

- 2164 ) 13

- CF

- 3 81 ) JAMIE A. KOY , ) Honorable ) Sharon L. Prather , Respondent

- Appellant

. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE S PENCE delivered the judgment of the court , with opinion

. Justices Schostok and Hudson concurred in the judgment and opinion

. OPINION ¶ 1 Respondent, Jamie A. Koy , appeals the trial court’s order granting the State’s petition for
forfeit ure of eight horses that were in her possession. She challenges the forfeiture order, arguing that section 3.04(a) of the Humane Care for Animals Act (Act) (510 ILCS 70/3.04(a) (West 2012)) is unconstitutional because it required the State to prove that she vio lated the Act only by a preponderance of the evidence at the forfeiture hearing, not to a jury beyond a reasonable doubt as the sixth amendment guarantees. Because we find that the sixth amendment did not apply to the forfeiture hearing, we affirm. ¶ 2 I. BA CKGROUND2014 IL App (2d) 130906

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- ¶ 3 This appeal arises out of the State’s May 7, 2013, petition for forfeiture prior to trial pursuant to section 3.04(a) of the Act (510 ILCS 70/3.04(a) (West 2012)) and the subse quent forfeiture hearing. The State charged Koy pursuant to section 3.01 of the Act (510 ILCS 70/3.01 (West 2012)) with four felony counts of cruel treatment of companion animals. The forfeiture petition alleged as follows. On May 1, 2013, in conjunction with Koy’s arrest, the McHenry County s heriff’s o ffice seized eigh t horses at the Clover Hill Stable in Crystal Lake,
Illinois. Koy owned the horses, whose names were Mikey, Brier, Crede, Fluff, Paris, Leaf, Melissa, and Christopher. The horses were examined by Lisa Lembke, DVM, on April 25, 2013 , and again on May 1, a nd she found that the horses were in extremely poor condition and that seizure was necessary for their well

- being. ¶ 4 The State sent n otice of its seizure to Koy on May 1, 2013, and on May 22, 2013, a McHenry County grand jury returned a 24

- count indictment against Koy for violations of
section s 3.01 and 3(a) of the Act (510 ILCS 70/3.01, 3(a) (West 2012))

. The hearing on the forfeiture petition took place on August 2, 2013, with Lembke as the State’s only witness. ¶ 5 O ver Koy’s objection, Lembke was accepted as an expert in veterinary medicine and
anim al cruelty and she testified at the hearing as follows. ¶ 6 On April 25, 2013, Lembke was involved in an investigation of Koy at the Clover Hill
S table

. That day , Lembke performed visual inspections of seven of the eight horses. Her general observation was that the horses had lost a significant amount of weight since her previous observation , in December 2012. She had not observed two of the horses before, but
those horses were “very thin.” She saw little hay available for the horses, but she could not determine the total feed resources that day. Due to the horses’ poor condi tions, she issued a
citation to Koy requiring her to have a veterinarian come and provide care to the horses within2014 IL App (2d) 130906

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- 24 hours. ¶ 7 Lembke returned to the stables on May 1, 2013. T he police arrested Koy and seized the
horses

. Lembke believed that Koy owned all eight horses, as Koy was the person keeping, feeding, and caring for them, although Koy claimed that two of th e horses had different owner s
. ¶ 8 Lembke explained that horses are assigned Henneke body conditioning scores (HBCS)
on a scale of 1 to 9 ; a score of 1 mean s that the horse is emaciated, 9 means that the horse is morbidly obese, and 5 mean s that the horse i s fit. An HBC S of 5 is ideal. An HBC S i s normally determined by both a visual exam and a palpation exam, although Lembke admitted that she did not perform a palpation exam on a ny of Koy’s horses

. ¶ 9 On May 1, Lembke assigned Paris an HBCS of 1. Paris was taken to the University of Wisconsin School of Veterinary Medicine for additional diagnostics and care because “her body condition was so emaciated [Lembke] felt she was at risk of dying.” Her opinion , based on her
visual exam and review of lab work, was that Par is had been starved. Paris responded well to a refeeding protocol, which resulted in significant weight gain and ruled out other medical possibilities for her emaciation, such as cancer . The lab resul ts indicated anemia, which i s consistent with starvati on
. ¶ 10 Lembke observed Leaf to be in similar condition and assigned him an HBCS of 1.5.
Leaf was also taken to the University of Wisconsin and put on a refeeding program, to which he responded well, gaining significant weight and resolving a skin issue. L embke’s opinion was
that Leaf had been starved. ¶ 11 Lembke observed that Melissa had poor muscle mass, abnormal boney prom inences, and skin problems. Le m b ke opined that Melissa’ s HBCS was a 1 to 2 1 and that she had been starved.

1 Lembke testified that she often assigned a range whe n performing only a visual exam ,2014 IL App (2d) 130906

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- A gain, a refeeding program at the University of Wisconsin resulted in significant weight gain and improvement in the horse’s appearance. ¶ 12 Lembke assigned Christopher an HBCS of 2 to 3. He was in poor nutritional condition with boney prominences and a lack of muscle mass. He was put on a refeeding program and had gained some weight by the time of the hearing , although not as much as Lembke had hoped. She opined that his poor condition was “mo st likely” the result of starvation. ¶ 13 Lembke assigned Fluff an HBCS of 3. Fluff ’s HBCS was more difficult to assign because he had a winter coat, but despite the winter coat Lembke could observe his ribs and see that he had less muscle mass than would be expected. Fluff was put on a refeeding program at the Hooved Animal Humane Society in Woodstock, Illinois, where he gained significant weight and shed his winter coat. Lembke opined that Fluff’s poor condition was due to starvation. ¶ 14 Lembke assigned Cred e an HBCS of 2.5 to 3. He was in “thin nutritional condition,” with prominent ribs and no fat covering his hind quarters. Crede was put on a refeeding program and showed substantial improvement

— less prominent ribs, a gl ossier coat, and more flesh in his hind qua rters and shoulders. Le m b ke opin ed that his poor condition was the result of starvation. ¶ 15 Mikey still had a rough winter coat and was “a little bit thin.” She assigned him an
HBCS of 3 to 4. He was put on a refeeding p rogram, and as a result his coat became glossier and he gained “a little bit of weight.” In Lembke’s opinion, his thin condition was because “he didn’t get enough to eat.” ¶ 16 Finally, Lembke observed Brier, who was in t he best condition of the horses . Brier was put on a refeeding prog ram and as a result gained some weight. When asked for her opinion of
his condition , she responded that “he wasn’t being fed as much as he needed.” She did not

because a visual exam alone tended to result in overestimat ing a horse’s HBCS.2014 IL App (2d) 130906

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- testify to an HBCS for Brier. ¶ 17 B ased on Lembke’s testimony and the exhibits introduced at the heari ng (pictures of the horses), the trial court found that the State proved by a preponderance of the evidence that Koy
violated the Act. Accordingly, it granted the State’s petition for forfeiture of the horses and it

en tered an order to that effect

. ¶ 18 Koy timely appealed

. ¶ 19 II. ANALYSIS ¶ 20 Koy’s sole argument on appeal is that section 3.04 (a) of the Act (510 ILCS 70/3.04 (a) (West 2012)) violates the sixth amendment to the United States C onstitution because it requires
the State to prove the necessary elem ents for forfeiture only by a preponderance of the evidence,

not to a jury beyond a reasonable doubt. 2 Koy admits that she did not raise her constitutional
claim in the trial court.

2 The particular portion of section 3.04(a) that Koy attacks as unconstitutional is the following: “The State’s Attorney may, within 14 days after the seizu re, file a ‘petition for forfeiture prior to trial’ before the court having criminal jurisdiction over the alleged charges, asking for permanent forfeiture of the companion animals seized. *** In a ‘petition for forfeiture prior to trial’, the burden is on the prosecution to prove by a preponderance of
the evidence that the person arrested violated Section 3.01, 3.02, 3.03, or 4.01 of this Act
or Section 26

- 5 or 48

- 1 of the Criminal Code of 1961 or the Criminal Code of 2012.” (Emphasis added.) 510 ILCS 70/ 3.04(a) (West 2012).2014 IL App (2d) 130906

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- ¶ 21 In a criminal case, a constitutional challenge to a statute may be raised for the first time on appeal. People v. Clark , 2014 IL 115776, ¶¶ 12

- 13; People v. McCarty , 223 Ill. 2d 109, 12 2

- 2 3 (2006). On the other hand , in a civil case, such a challenge is normally forfeited if not raised
below. Forest Preserve Di strict v. First National Bank of Franklin Park , 2011 IL 110759, ¶ 27; In re Marriage of Winter , 2013 IL App (1st) 112836, ¶ 27. However, a reviewing court may overlook general forfeiture principles in a civil case and consider the constitutional issue not raised below “if the issue is one of law, is fully briefed and argued by the parties, and the public interest favors considering the issue now.” Forest Preserve District , 2011 IL 110759, ¶ 28; see
In re O.R. , 328 Ill. App. 3d 955, 959 (2002) (appellate c ourt considered issue that was one of first impression in Illinois and raised clear question of law despite it s being first raised on appeal; forfeiture was a limitation on the parties, not on the court). ¶ 22 Nevertheless, a civil trial do es not imp licate the sixth amendment right to a jury trial . See Fakes v. Eloy , 2014 IL App (4th) 121100, ¶ 120 (civil proceedings do not imp licate sixth
amendment concerns ); Wilbourn v. Cavalenes , 398 Ill. App. 3d 837, 856 (2010) (same)

. Therefore, unless the forfeiture hear ing here was a criminal proceeding, Koy did not even have a
sixth amendment claim to forfeit. ¶ 23 I n her brief, Koy characterizes the forfeiture as “a patently imposed penalty following a finding of criminal acts by a preponderance of the evidence.” She argues that section 3.04(a) of the Act required the State to prove that she committed a criminal offense only by a preponderance of the evidence. She paints the forfeiture hear ing as a criminal proceeding in substance, if not in form. See People v. Earl , 121 Ill. App. 3d 254, 257 (1984) (forfeiture of weapons, although civil in form, was criminal in substance since its only objective was to penalize unlawful activity).2014 IL App (2d) 130906

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- ¶ 24 Koy relies on two United State s Supreme Court cases. In Apprendi v. New Jersey , 530
U.S. 466 , 490 (2000), the Supreme Court held that, under the sixth and fourteenth amendments

to the United States Constitution, any fact, other than a prior conviction, that increase s the maximum penalty for a crime must be charged in an indictment, s ubmitted to a jury, and proved beyond a reasonable doubt. Apprendi concerned a criminal case where the defendant was convicted of an offense, and his sentence was subsequently increased based on a finding of bias (that his crime was racially motivated), w hich was beyond the findings reflected in the jury ’s
verdict

. ¶ 25 Southern Union Co. v. United States , 567 U.S. __, __, 132 S. Ct. 2344 , 23 5 7 (2012), expanded the Apprendi holding on criminal sentences to include criminal fines. Apprendi ’s core

concern was to reserve to the jury the determination of facts that establish punishable statutory
offenses. Id. at ___, 132 S. Ct. at 2350 (citing Oregon v. Ice , 555 U.S. 160, 170 (2009)). “Criminal fines, like *** other forms of punishment, are penalties inflicted by the sovereign for
the commission of offenses.” Id. ¶ 26 Koy argues that Southern Union should be extended to apply to civil sanctions that rely

on und erlying criminal conviction s
. Koy relies on Southern Union ’s “broad language” that any penalty “ inflicted by the sovereign for the commission of offenses ” should be within Apprendi ’s scope. Sh e argues that the Apprendi rule “logically embraces” civil enf orcement proceedings, including forfeiture proceedings secondary to criminal proceedings, citing in support Austin v.
United States , 509 U.S. 602, 622 (1993) (finding civil forfeiture constituted punishment for an
offense under the eighth amendment’s exces sive

- fines clause ), and Kennedy v. Mendoza

Martinez , 372 U.S. 144, 165

- 66 (1963) (deprivation of citizenship for draft dodgers was a punishment subject to full procedural protections afforded criminal defendants ). Sh e further2014 IL App (2d) 130906

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- cites United States v. Bajaka jian , 524 U.S. 321, 331

- 32 (1998), w here the Supreme Court found

a statutory forfeiture to be a “fine” for eighth amendment purposes , because the forfeiture served no remedial purpos e, was designed to punish the of fender, and c ould not be imposed upon innocent property owners. ¶ 27 The cases that Koy cites share a common vein , which serve s to distinguish the cases from
hers : the fines or forfeitures at issue trigger ed the Apprendi rule because they (1) serve d to punish (2) criminal offense s and were (3 ) based on facts beyond those determined by a jury beyond a reasonable doubt

. See Apprendi , 530 U.S. at 468

- 69 ( the maximum criminal sentence
for the defendant ’s offen se was improperly enhanced based on facts proved by a preponderance
of the evidence ); So uthern Union Co. , 567 U.S. at __, 132 S. Ct. at 2352 ( it was error to punish convicted corporation with fines for days beyond those the jury found the corporation to have
committed the offense ); see also Kennedy , 372 U.S. at 186 (depriving citizenship for those convicted of evasion of military service obligations under the Selective Training and Service Act of 1940 was a punishment that required procedural due process protections); cf. Austin , 509 U.S. 602 ( civil forfeiture against property owner who pl ead ed guilty to a drug offense was a punishment sufficient to trigger the eight h amendment ’s excessive

- fines protections ); Bajakaj ian , 524 U.S. at 321

- 22 ( forfeiture was punitive so that it implicated the eighth
amendment ’s excessive

- fines clause)

. Austin and Bajaka j ian are further distinguishable because they were decided within the context of an eight h amendment analysis. Moreover, all of these cases do little to demonstrate that a forfeiture hearing, before a criminal trial and thus unrelated

to a conv iction, is not a civil proceeding. Forfeiture proceedings are generally considered civil,
and a civil forfeiture does not require a prior criminal conviction or even a prior criminal proceeding. See People v. 1998 Lexus GS 300 , 402 Ill. App. 3d 462, 465 (2010) (“A forfeiture2014 IL App (2d) 130906

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- action is civil in nature and is an in rem proceeding against the item used in the commission of a crime.”); People v. $52,204.00 United S tates Currency , 252 Ill. App. 3d 778, 781 (1993) (“[T]he fact that no criminal charges were brou ght against *** the claimant is not di spositive of this matter.”); People v. United S tates Currency $3,108 , 219 Ill. App. 3d 441, 444 (1991) (“Forfeiture proceedings are in rem and therefore civil in nature.”). But see People v. Braden , 243 Ill. App. 3d 6 71, 676 (1993) (forfeiture proceedin g under Illinois criminal code i s in rem and thus technically civil in form, but it may also be considered “quasi

- criminal” where the objective
of forfeiture i s to penalize unlawful activity). ¶ 28 Both Koy and the State cite Libretti v. United States , 516 U.S. 29 (1995). The State
argu es that Libretti held that the sixth amendment does not apply to forfeiture proceedings, and Koy argues that Southern Union implicitly overruled Libretti

. However, Libretti addressed a
different situation than did Southern Union , and we thus reject Koy’s reading of Southern Union as overruling Libretti

. In Southern Union , the Court held that fines beyond those authorized by
the conviction

— fines beyond what the jury’s verdic t allowed

— violated the Apprendi rule.
Southern Union , 567 U.S. at ___, 132 S. Ct. at 2352. In Libretti , the Court held that forfeiture as an aspect of sentencing for a criminal offense did not fall within the sixth amendment’s protection, that is, there was no right to a jury verdict on the issue of forfeitability

. Libretti , 516
U.S. at 49. United States v. Fruchter , 411 F. 3d 377, 382 (2d Cir. 2005), is instructive in understanding the difference between the two cases. There, the Second Circuit disting uished between determinate sentencing regimes and criminal forfeiture amounts. Id. at 382

- 83. In a determinate sentencing regime, the jury found facts that supported a conviction, and that conviction authorized the imposition of a sentence within a specified range as established by

statu te or administrative guidelines

. Id. at 383. A sixth amendment violation occurred if and2014 IL App (2d) 130906

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- when a judge increased the punishment beyond the specified range of punishment , based upon facts that a jury did not find beyo nd a reasonable doubt. Id. In contrast, criminal forfeiture was not a determinate scheme, at least not under the federal forfeiture statute that the Fruchter court addressed. The federal forfeiture statute was open
- ended, with no range or statutory maxi mum. Id. A judge could not exceed his constitutional authority by imposing a punishment beyond the statutory maximum , because there was no statutory maximum. Id. There wa s, accordingly, no sixth amendment right to the determination of forfeitability, a s any forfeiture under the statute was authorized by the jury’s verdict. See Libretti , 516 U.S. at 49 (no constitutional right to a jury determination as to the appro priate sentence to be imposed). Indeed, we agree with the State
insofar as Libretti hold s that the sixth amendment does not apply to a determination of criminal forfeiture as an aspect of sentencing. Id. T he Ninth Circuit cited Libretti earlier this year, finding that Libretti was binding precedent that directly contradicted the appellant’s argument that the sixth amendment guaranteed him a right to a jury verdict in his criminal forfeiture proceeding. United States v. Wilkes , 744 F.3d 1101, 1109 (9th Cir. 2014). The Wilkes appellant ’s procedural posture was similar to those of the appellant s in Apprendi and Southern
Union : he was convicted of various offenses (wire fraud, bribery, money laundering, etc.), and
his sentence included incarceration and the criminal forfeiture of over $600,000, which he challenged, unsuccessfully, on six th amendment grounds. Furthermore, the Wilkes court highlighted that the Supreme Court “has cautioned courts of appeals against concluding that ‘recent cases have, by implication, overruled an earlier precedent.’ ” Id. (quoting Agostini v

. Felton , 521 U. S. 203, 237 (1997)). “ [ I ] f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other l ine of decisions *** follow the case which directly controls,” and leave it to the Supreme Court to over rule its own2014 IL App (2d) 130906

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- decisions. (Internal quotation marks omitted.) Id. (quoting Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U.S. 477, 484 (1989)). ¶ 29 For the following reasons, we hold that a hearing on the forfeiture of companion animals
before tr ial, pursuant to section 3.04(a) of the Act, is not a criminal proceeding and therefore does not implicate the s ixth amendment right to a jury trial

. Neither Apprendi nor Southern
Union applies here. Both cases concerned the imposition of punishment beyond that authorized by a jury’s verdict , not whether a forfeiture proceeding was civil or criminal

. In fact, neither case involved a forfeiture proceeding, nor was there any debate that the enhanced sentences constituted punishment for purposes of the sixth amendment

. ¶ 30 Here, Koy has not shown why her forfeiture hearing was a criminal proceeding, beyond bald assertions that forfeiture is punishment for her alleged crimes

. Every sanction, civil or otherwise, produces some punitive effect. See Department of Revenue v. Kurth Ranch , 511 U.S. 767, 777 n.14 (1994) ( “[E]ven remedial sanctions carry the ‘sting of punishment.’ ” ). Illinois case law clearly establishes the civil nature of statutory forfeiture proceedings. See, e.g. , In re Twenty

- Seven Thousand Four Hundred Forty Dollars , 164 Ill. App. 3d 44, 46 (1987) (“I t is well settled that statutory forfeiture actions are considered civil in nature and do not depend upon a prior criminal conviction.”). Southern Union is not as broad as Koy suggests: it mere ly extends
the Apprendi rule to include criminal fines, and it certainly does not extend sixth amendment protections to civil forfeiture proceedings. ¶ 31 The civil nature of the forfeiture here is further supported by the Act’s purpose

. T he Act
both promote s the humane care and treatment of animals and punishes penalties for violations
thereof. See People v. Shanklin , 329 Ill. App. 3d 1144, 1146 (2002); see also Illinois Gamef owl
Breeders Ass’n v. Block , 75 Ill. 2d 443, 453

- 54 (1979) (sections of Act with pu rpose of2014 IL App (2d) 130906

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- alleviating evils related to animal fighting were valid exercise of State’s police power). Section 3.04(a) provides that the State’s Attorney may file a “petition for forfeiture prior to trial ” and that

t he only possible ramification of the petit ion is the permanent forfeiture of the animals seized in conjunction with the arrest

. 510 ILCS 70/3.04(a) (West 2012). In order to convict Koy, the State must still proceed at trial to prove that she committed the alleged of fenses beyond a
reasonable dou bt

. Section 3.04(a) allows the State to take ac tion before trial , not to punish her
but , rather, in the spirit of the Act, to en sure the well

- being and continued recovery of the injured
animals. ¶ 32 Moreover, section 3.04(a) is concerned solely with the animals related to the arrest, not
with the arrestee. The section begins by permitting a polic e officer to take possession of “some or all of the companion animals in the possession of the person arrested.” 510 ILCS 70/3.04(a) (West 2012). After tak ing possession of the animals, the office r must file with the court an affidavit concerning the an imals seized and at the same time deliver to the court an inventory of
the animals. Id. The officer must place the animals in the custody of an animal contr ol agency
or animal shelter. Id. The State’s Attorney may then, within 14 days o f the seizure, file a “petition for forfeiture prior to trial,” the filing and granting of which gave rise to this appeal. Section 3.04(a) stands in contrast to section s 3.0 4(b) (notice to owner) and 3.04(c) (additional penalty of forfeiture permitted upon conviction), as section 3.04(a) addresses only the procedure for handling the animals incident to the arrest. ¶ 33 Accordingly, Koy has not demonstrated why the forfeiture of the horses under section 3.04(a) was a punishment that resulted from a criminal proceeding and not the result of a civil proceeding

. Because the forfeiture proceeding was civil, the sixth amendment was not implicated , and we reject Koy’s lone argument on appeal.2014 IL App (2d) 130906

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- ¶ 34 III. CONCLUSION ¶ 35 For the aforementioned reasons, the McHenry County circuit court’s order of forfeiture of the eight horses is affirmed. ¶ 36 Affirmed.