                                  Illinois Official Reports

                                            Appellate Court



                               People v. Koy, 2014 IL App (2d) 130906



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee,
Caption                      v. JAMIE A. KOY, Respondent-Appellant.



District & No.               Second District

                             Docket No. 2-13-0906


Filed                        July 8, 2014



Held                         The order for the forfeiture of eight horses in respondent’s possession
(Note: This syllabus         under the Humane Care for Animals Act was upheld on appeal over
constitutes no part of the   respondent’s contention that the Act was unconstitutional to the extent
opinion of the court but     that it required the State to prove a violation of the Act only by a
has been prepared by the     preponderance of the evidence at a forfeiture hearing, rather than
Reporter of Decisions        beyond a reasonable doubt before a jury pursuant to the sixth
for the convenience of       amendment, since respondent failed to show that the forfeiture was a
the reader.)                 punishment arising from a criminal proceeding and not the result of a
                             civil proceeding, and based on the civil nature of the forfeiture, the
                             sixth amendment was not implicated.



Decision Under               Appeal from the Circuit Court of McHenry County, Nos.
Review                       10-CM-1830, 10-CM-2164, 13-CF-381; the Hon. Sharon L. Prather,
                             Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Christopher S. Carroll, of Law Office of Christopher S. Carroll, of
     Appeal                   Aurora, for appellant.

                              Louis A. Bianchi, State’s Attorney, of Woodstock (Daniel Kegl,
                              Assistant State’s Attorney, of counsel), for the People.


     Panel                    JUSTICE SPENCE 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
       forfeiture 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 violated 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. BACKGROUND
¶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 subsequent
       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 sheriff’s office seized eight 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, and she found that the horses were in extremely poor condition and
       that seizure was necessary for their well-being.
¶4          The State sent notice 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
       sections 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          Over Koy’s objection, Lembke was accepted as an expert in veterinary medicine and
       animal 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
       Stable. 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 conditions, she issued a

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       citation to Koy requiring her to have a veterinarian come and provide care to the horses within
       24 hours.
¶7         Lembke returned to the stables on May 1, 2013. The 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 the horses had different
       owners.
¶8         Lembke explained that horses are assigned Henneke body conditioning scores (HBCS) on
       a scale of 1 to 9; a score of 1 means that the horse is emaciated, 9 means that the horse is
       morbidly obese, and 5 means that the horse is fit. An HBCS of 5 is ideal. An HBCS is normally
       determined by both a visual exam and a palpation exam, although Lembke admitted that she
       did not perform a palpation exam on any 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 Paris 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 results indicated anemia,
       which is consistent with starvation.
¶ 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. Lembke’s opinion was
       that Leaf had been starved.
¶ 11       Lembke observed that Melissa had poor muscle mass, abnormal boney prominences, and
       skin problems. Lembke opined that Melissa’s HBCS was a 1 to 21 and that she had been
       starved. Again, 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 “most 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 Crede 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 glossier coat, and more flesh in his
       hind quarters and shoulders. Lembke opined that his poor condition was the result of
       starvation.



          1
            Lembke testified that she often assigned a range when performing only a visual exam, because a
       visual exam alone tended to result in overestimating a horse’s HBCS.

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¶ 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 program, 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 the best condition of the horses. Brier was put
       on a refeeding program 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 testify
       to an HBCS for Brier.
¶ 17       Based on Lembke’s testimony and the exhibits introduced at the hearing (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
       entered 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 Constitution because it
       requires the State to prove the necessary elements 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.
¶ 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, 122-23
       (2006). On the other hand, in a civil case, such a challenge is normally forfeited if not raised
       below. Forest Preserve District 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 court considered issue that was
       one of first impression in Illinois and raised clear question of law despite its being first raised
       on appeal; forfeiture was a limitation on the parties, not on the court).
¶ 22       Nevertheless, a civil trial does not implicate the sixth amendment right to a jury trial. See
       Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 120 (civil proceedings do not implicate sixth
       amendment concerns); Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 856 (2010) (same).


          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 seizure, 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).


                                                      -4-
       Therefore, unless the forfeiture hearing here was a criminal proceeding, Koy did not even have
       a sixth amendment claim to forfeit.
¶ 23       In 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 hearing 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).
¶ 24       Koy relies on two United States 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 increases the
       maximum penalty for a crime must be charged in an indictment, submitted 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), which was beyond the findings reflected in the
       jury’s verdict.
¶ 25       Southern Union Co. v. United States, 567 U.S. ___, ___, 132 S. Ct. 2344, 2357 (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
       underlying criminal convictions. 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. She argues that the Apprendi rule “logically embraces” civil enforcement
       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 excessive-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).
       She further cites United States v. Bajakajian, 524 U.S. 321, 331-32 (1998), where the Supreme
       Court found a statutory forfeiture to be a “fine” for eighth amendment purposes, because the
       forfeiture served no remedial purpose, was designed to punish the offender, and could not be
       imposed upon innocent property owners.
¶ 27       The cases that Koy cites share a common vein, which serves to distinguish the cases from
       hers: the fines or forfeitures at issue triggered the Apprendi rule because they (1) served to
       punish (2) criminal offenses 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 offense was improperly enhanced based on facts proved by a
       preponderance of the evidence); Southern 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

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       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 pleaded
       guilty to a drug offense was a punishment sufficient to trigger the eighth amendment’s
       excessive-fines protections); Bajakajian, 524 U.S. at 321-22 (forfeiture was punitive so that it
       implicated the eighth amendment’s excessive-fines clause). Austin and Bajakajian are further
       distinguishable because they were decided within the context of an eighth amendment
       analysis. Moreover, all of these cases do little to demonstrate that a forfeiture hearing, before a
       criminal trial and thus unrelated to a conviction, 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 forfeiture 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 States
       Currency, 252 Ill. App. 3d 778, 781 (1993) (“[T]he fact that no criminal charges were brought
       against *** the claimant is not dispositive of this matter.”); People v. United States 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 671, 676 (1993) (forfeiture
       proceeding under Illinois criminal code is in rem and thus technically civil in form, but it may
       also be considered “quasi-criminal” where the objective of forfeiture is to penalize unlawful
       activity).
¶ 28        Both Koy and the State cite Libretti v. United States, 516 U.S. 29 (1995). The State argues
       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 verdict 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 distinguished 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 statute or administrative guidelines. Id. at 383. A sixth amendment
       violation occurred if and when a judge increased the punishment beyond the specified range of
       punishment, based upon facts that a jury did not find beyond 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 maximum. 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 was, accordingly, no sixth amendment right to the
       determination of forfeitability, as 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
       appropriate sentence to be imposed). Indeed, we agree with the State insofar as Libretti holds
       that the sixth amendment does not apply to a determination of criminal forfeiture as an aspect


                                                    -6-
       of sentencing. Id. The 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 appellants 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 sixth
       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 line of decisions *** follow the case which directly controls,”
       and leave it to the Supreme Court to overrule its own 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 trial, pursuant to section 3.04(a) of the Act, is not a criminal proceeding and therefore
       does not implicate the sixth 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)
       (“It 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
       merely 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. The Act
       both promotes 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 Gamefowl
       Breeders Ass’n v. Block, 75 Ill. 2d 443, 453-54 (1979) (sections of Act with purpose of
       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 the only possible ramification of the petition 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 offenses
       beyond a reasonable doubt. Section 3.04(a) allows the State to take action before trial, not to
       punish her but, rather, in the spirit of the Act, to ensure the well-being and continued recovery
       of the injured animals.



                                                   -7-
¶ 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 police 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 taking possession of the animals, the officer must file with the court an
       affidavit concerning the animals 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 control
       agency or animal shelter. Id. The State’s Attorney may then, within 14 days of 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 sections 3.04(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.

¶ 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.




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