                             2014 IL App (2d) 130906
                                  No. 2-13-0906
                            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-381
                                       )
JAMIE A. KOY,                          ) Honorable
                                       ) Sharon L. Prather,
      Respondent-Appellant.            ) Judge, Presiding.
______________________________________________________________________________

       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
2014 IL App (2d) 130906


¶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

citation to Koy requiring her to have a veterinarian come and provide care to the horses within



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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 2 1 and that she had been starved.

       1
           Lembke testified that she often assigned a range when performing only a visual exam,



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2014 IL App (2d) 130906


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.

¶ 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

because a visual exam alone tended to result in overestimating a horse’s HBCS.



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2014 IL App (2d) 130906


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.




        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).




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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, 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).

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).



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2014 IL App (2d) 130906


¶ 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



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2014 IL App (2d) 130906


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 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



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2014 IL App (2d) 130906


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



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2014 IL App (2d) 130906


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 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



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2014 IL App (2d) 130906


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



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2014 IL App (2d) 130906


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.

¶ 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.



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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.




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