On Writ of Certiorari to the Court of Civil Appeals, Division 3

¶ 0 After marihuana was found in the claimant's vehicle, he was charged with possession of a controlled dangerous substance in violation of Oklahoma's Uniform Controlled Dangerous Substances Act, 63 O.S. §§ 2001[ 63-2001], 2-101 et seq. Thereafter, the district attorney sought the forfeiture of $18,235.00 in cash allegedly found in close proximity to the marihuana. The district court granted the claimant's motion to dismiss the forfeiture proceeding. The Court of Civil Appeals affirmed. This Court granted certiorari.

REVERSED AND REMANDED.

TAYLOR, J.

¶ 1 The questions before this Court are (1) whether simple possession in violation of the Uniform Controlled Dangerous Substances Act (the Act), 63 O.S. 2001, §§ 2-101[ 63-2-101] et seq., can give rise to title 63, subsection 2-503(A)(7)'s rebuttable presumption that monies found in close proximity to any amount of a controlled dangerous substance are themselves forfeitable, (2) whether forfeiture pursuant to subsection 2-503(A)(7) of the Act is independent of an in personam criminal charge or conviction, and (3) whether a subsection 2-503(A)(7) forfeiture is limited by the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We answer questions one and two in the affirmative. We answer question three in the negative.

I. FACTS

¶ 2 Shawn Gandy was charged in Bryan County, Oklahoma, for possession of marihuana. Gandy agrees that the State of Oklahoma has evidence that at the time of his arrest, it recovered $8,035.00 from his person, 2.86 grams of marihuana from the vehicle's passenger compartment, $10,200.00 in a plastic bag in a shaving kit which was in an overnight bag in the vehicle's cargo bed, and 0.21 grams of marihuana in the same shaving kit. The total of monies found was $18,235.00.

II. PROCEDURAL HISTORY

¶ 3 The State petitioned for forfeiture of the $18,235.00 in the district court of Bryan County, Oklahoma, pursuant to title 63, subsection 2-503(A)(7) of the Act, based on its being found in close proximity to a controlled dangerous substance. Gandy filed a motion to dismiss, relying on State v. Eighteen Thousand Six Hundred Sixty-Three Dollars and Twenty-Five Cents Cash, 2000 OK CIV APP 102, 11 P.3d 1253. Gandy argued that forfeiture under subsection 2-503(A)(7) is not authorized except when the forfeiture is based on a violation of the Act of more than simple possession. Gandy further argued that if forfeiture is proper under subsection 2-503(A)(7) based on simple possession, then the forfeiture violates the prohibition against the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

¶ 4 The State responded that the evidence is sufficient to allow forfeiture under title 63, subsection 2-503(A)(7). The State also submitted because forfeiture is civil in nature, the Eight Amendment is not implicated.

¶ 5 The district court ruled that "[f]orfeiture of large sums of money in connection with a misdemeanor possession of marijuana prosecution violates the excessive fines clause of the Eighth Amendment." The district court ordered the seized money returned to the claimant. The Court of Civil Appeals ruled that a simple possession charge is insufficient to support a forfeiture of money found in close proximity to a controlled dangerous substance.

¶ 6 The relevant provisions of title 63, subsection 2-503(A)(7), as amended in 2004 and under which the State seeks forfeiture, state:

A. The following shall be subject to forfeiture:

1. All controlled dangerous substances which have been . . . possessed in violation of the Uniform Controlled Dangerous Substances Act;

. . . .

7. All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption[.]

(Emphasis added.) A 2004 amendment to subsection 2-503(A)(7) added "any amount of before "forfeitable substances."

¶ 7 This Court has not addressed this subsection either before or after the 2004 amendment. However, it is clear from the Court of Civil Appeals' decisions and the briefs in this case that subsection 2-503(A)(7)'s construction has not been uniform. State ex rel. Lane v. Seven Hundred Twenty Five Dollars ($725.00), 2006 OK CIV APP 74, ¶¶ 9-12, 136 P.3d 1076, 1078-1079; State v. Eighteen Thousand Six Hundred Sixty-Three Dollars and Twenty-Five Cents ($18,663.25) Cash, 2000 OK CIV APP 102, ¶¶ 17-18, 11 P.3d 1253, 1255-1257; State v. Eleven Thousand Five Hundred Sixty-Six ($11,566.00) Dollars, 1996 OK CIV APP 67, ¶¶ 10-12, 919 P.2d 34, 37-38; State v. $2,200.00 in U.S. Currency, 1993 OK CIV APP 22, ¶¶ 5-6, 851 P.2d 1081, 1082-1083.

III. FORFEITURE PURSUANT TO TITLE 63, SUBSECTION 2-503(A)(7)

¶ 8 A peace officer of this state may seize property subject to forfeiture under the Act (1) when "[t]he seizure is incident to an arrest or search warrant," (2) when "[t]he property has been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding under" the Act, (3) when "[p]robable cause exists to believe" it presents a public health danger, or (4) when "[p]robable cause exists to believe the property has been used, or will be used in violation" of the Act. 63 O.S. 2001, § 2-504[ 63-2-504]. For forfeiture of property addressed in title 63, subsection 2-503(A)(7), the party seeking forfeiture must show by a preponderance of the evidence the applicable requirements for seizure. Id. at § 2-506(G). For title 63, subsection 2-503(A)(7), the party seeking forfeiture must produce evidence that the monies were found in close proximity to any amount of forfeitable substance, forfeitable paraphernalia, or forfeitable records. Once the party seeking forfeiture has met this burden of production, a rebuttable presumption arises that the monies are forfeitable under the Act. Id. at § 2-503(A)(7).

¶ 9 The discrepancies in subsection 2-503(A)(7)'s construction arise, at least in part, because it is unclear what makes the monies forfeitable under the Act. In construing a statutory enactment, the goal is to ascertain the Legislature's intent. In re Estate of Villines, 2005 OK 63, ¶ 9, 122 P.3d 466, 470. If the enactment is unambiguous, it is presumed that the Legislature intended what it expressed. Id. When an ambiguity exists, provisions of a legislative act will be construed together to result in a harmonious whole, id. at ¶ 9., and will be given a reasonable and sensible construction which will avoid absurd consequences. State ex rel. Dept. of Public Safety v. 1985 GMC Pickup, 1995 OK 75, ¶ 7, 898 P.2d 1280, 1282. Further, general words which are associated with specific words may be limited by the specific words when they are capable of an analogous meaning. Oklahoma Tax Comm'n v. Fortinberry Co., 1949 OK 75, ¶ 14, 207 P.2d 301, 305.

¶ 10 Title 63, subsection 2-503(A)(7) operates to create a presumption that monies found in close proximity to any amount of a forfeitable substance are forfeitable. Title 63, subsection 2-503(A)(1) makes a controlled dangerous substance and other items which are possessed in violation of the Act forfeitable. Under these two provisions, possession of any amount of a controlled dangerous substance in violation of the Act unambiguously gives rise to the presumption that the monies found in close proximity to it, in this case marihauna, are forfeitable.

¶ 11 We next turn to the evidentiary proof necessary to rebut the presumption and, if the presumption is rebutted, to support a forfeiture under subsection 2-503(A)(7). Forfeiture under title 63, subsections 2-503(A)(2)-(6), and (8)-(9) is based on manufacturing and distribution of controlled dangerous substances in violation of the Act. These subsections provide for the forfeiture of materials and equipment used to manufacture controlled dangerous substances, conveyances used to distribute them, records used to manufacture and distribute them, proceeds of their sale, and other property and weapons possessed or used to facilitate a violation of the Act. The focus of these subsections is on the forfeitability of instrumentalities of drug trafficking, leading to the conclusion that the Legislature intended that subsections 2-503(A)(2)-(6) and (8)-(9) forfeiture provisions to be based on drug trafficking.

¶ 12 Extending this legislative intent to subsection 2-503(A)(7), evidence that monies found in close proximity to any amount of a controlled dangerous substances possessed in violation of the Act creates a presumption that the monies are the proceeds from the distribution or manufacture of a controlled dangerous substance. Once the presumption arises, the person claiming the monies may rebut the presumption by showing that "the forfeited currency bore no nexus to a violation of the Act," or, in other words, that there is a legal source of the currency. State v. One Thousand Two Hundred Sixty-seven Dollars ($1,267.00), 2006 OK 15, ¶ 30, 131 P.3d 116, 126. Once rebutted, the party seeking forfeiture must produce contrary evidence. See 63 O.S.Supp. 2004, § 2-506[ 63-2-506](G).

¶ 13 The next step in the resolution of the questions before us is to determine whether a subsection 2-503(A)(7) forfeiture is dependent on an in personam criminal charge or conviction for possession. Forfeiture proceedings under title 63, section 2-503 are in rem and civil in nature. State ex rel. Turpen v. A 1977 Chevrolet Pickup Truck, 1988 OK 38, ¶ 9, 753 P.2d 1356. Civil forfeiture is based on the legal fiction that the object is guilty of the crime. Austin v. united States, 509 U.S. 602, 615-616, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (quoting J.S. Goldsmith, Jr., Grant Co. v. United States, 254 U.S. 505, 511, 41 S.Ct. 189, 65 L.Ed. 376 (1921)). Under the common law, in rem civil forfeiture is "independent of, and wholly unaffected by any criminal proceeding in personam." In re The Palmyra, 25 U.S. (12 Wheat.) 1, 15, 6 L.Ed. 531 (1827). Thus, the common law does not require section 2-503 forfeitures to be based on a criminal charge, such as possession with intent to distribute, or on a criminal conviction.

¶ 14 Likewise, there is nothing in the Act which makes a subsection 2-503(A)(7)'s forfeiture dependent on an in personam criminal charge or conviction. Subsection 2-503(A)(7)'s presumption of forfeitability arises when monies are found in close proximity to any amount of a controlled dangerous substance or other forfeitable items. As the district attorney contends, there is no common-law or statutory rule which limits his discretion to seek forfeiture of an item based on its nexus to drug trafficking while only seeking to prosecute in personam for simple possession. In fact, he need not file any charges before seeking forfeiture under subsection 2-503(A)(7).

¶ 15 This construction is in keeping with our decisions in 1985 GMC Pickup, 1995 OK 75, 898 P.2d 1280, and in One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116. In 1985 GMC Pickup, after the owner/ occupant of the pickup was convicted of possession of marihuana, the Department of Public Safety sought forfeiture of the pickup. The notice of seizure and forfeiture stated the grounds for forfeiture to be the owner's use of the vehicle while possessing and transporting marihuana under title 63, subsections 2-503(A)(1) and (4). This Court found that simple possession was an insufficient basis for forfeiture under subsection 2-503(A)(4). 1985 GMC Pickup did not require an in personam charge or conviction of possession with intent to distribute but did require evidentiary proof which would support more than simple possession in violation of the Act be produced in the forfeiture proceedings.

¶ 16 In One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116, the State sought the forfeiture of currency based on three grounds, one of which was the close proximity of the currency "to forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture, or distribution of forfeitable substances." Both parties filed motions for summary judgment. The State submitted evidentiary material in the form of a police officer's affidavit that he found baggies containing tan rocks which he suspected of being cocaine and $1,267.00 in cash on the claimant's person when he was arrested and that an analysis of the rocks showed they were 31.85 grams of crack cocaine, more than enough to support a charge of possession with intent to distribute. This Court determined that the State's evidentiary material was sufficient to shift the burden of proof to the claimant. Because the claimant failed to counter the State's evidentiary materials, the trial court had correctly entered judgment for the State. The Court did not require an in personam criminal charge or conviction against the claimant.

IV. 2004 AMENDMENT TO SUBSECTION 2-503(A)(7)

¶ 17 In 2004, the Oklahoma Legislature amended title, 63, subsection 2-503(A)(7). Before the amendment, subsection 2-503(A)(7) provided for forfeiture of "[a]ll monies, coin and currency found in close proximity to forfeitable substances. . . ." After the amendment, it provided for forfeiture of "[a]ll monies, coin and currency found in close proximity to any amount of forfeitable substances. . . ." (Emphasis added.) The district attorney relies on this amendment to support his position that the Legislature intended to allow forfeiture based on simple possession.

¶ 18 The meaning of title 63, subsection 2-503(A)(7) is clear as discussed above. It does appear that the 2004 amendment is a legislative recognition that the only evidence of drug distribution against the seller may be the proceeds from the sale and trace amounts of the drugs and that this evidence would give rise to a presumption that the money is proceeds from drug distribution.

V. EXCESSIVE FINES CLAUSE

¶ 19 The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Excessive Fine Clause of this provision "limits the government's power to extract payments, whether in case or in kind, `as punishment for some offense.'" Austin v. United States, 509 U.S. 602, 609-610, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909). We need not detail the history of forfeiture here because it is presented by Justice O'Connor in her separate writing, concurring in part and dissenting in part, in Browning-Ferris, 492 U.S. at 282-301, 109 S.Ct. 2909 as well as by the Court in Austin, 509 U.S. at 611-619, 113 S.Ct. 2801 and in United States v. Bajakajian, 524 U.S. 321, 331, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).

¶ 20 The United States Supreme Court has addressed forfeiture under the Eight Amendment in two fairly recent cases. Austin, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488; Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314. In Austin, a unanimous decision, the claimant had pled guilty in criminal proceedings to possession with intent to distribute cocaine. 509 U.S. at 604, 113 S.Ct. 2801. The government then filed an in rem civil action seeking forfeiture of his mobile home and his body shop, the places he used for storing and selling the cocaine. Id. at 604-605, 113 S.Ct. 2801. The claimant argued that the forfeitures violated the Excessive Fines Clause. Id. at 605, 113 S.Ct. 2801.

¶ 21 The Austin Court noted that civil forfeitures advanced both punitive as well as remedial goals. Id. at 610, 113 S.Ct. 2801. The Court found it unnecessary "to exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause." Id. at 611, 113 S.Ct. 2801. Under Austin, a forfeiture which is not purely remedial, but which serves in part as punishment, is subject to the limitations of the Excessive Fines Clause. Id. at 610, 622 n. 14, 113 S.Ct. 2801. The Austin Court concluded "that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment." Id. at 618, 113 S.Ct. 2801. The relevant question under Austin, "is not . . . whether forfeiture . . . is civil or criminal, but rather whether it is punishment." Id. at 610, 113 S.Ct. 2801.

¶ 22 The Court considered the following factors in concluding that subsections 881(a)(4) and (a)(7) of title 21 of the United States Code were punitive and, thus, limited by the Excessive Fines Clause: (1) nothing in the subsections or their legislative history contradicts "the historical understanding of forfeiture as punishment," id. at 619, 113 S.Ct. 2801 (2) forfeiture under these subsections is subject to an innocent owner defense, making them look like punishment, id., (3) forfeiture under these subsections is tied directly to the commission of a drug offense, id. at 620, 113 S.Ct. 2801 (4) section 881's legislative history supports a legislative intent that section 881 forfeitures would act as a deterrent, id., and (5) there are "dramatic variations in the value" of forfeitures under the two subsections which have no "`correlation to any damages sustained by society or to the cost of enforcing the law.'" Id. at 621, 113 S.Ct. 2801 (quoting United States v. Ward, 448 U.S. 242, 254, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)).

¶ 23 The Court rejected the government's argument that subsections 881(a)(4) and (a)(7) were remedial. Id. at 621, 113 S.Ct. 2801. The government based its argument on two reasons. The first was that the forfeitures protected the community by removing instruments of drug trafficking from society. Id. at 620, 113 S.Ct. 2801. The second was that they served "to compensate the Government for the expense of law enforcement activity and for its expenditure on societal problems such as urban blight, drug addiction, and other health concerns resulting from the drug trade." Id. In rejecting the government's argument, the Court noted that the reasons for forfeiture of contraband, removing dangerous or illegal items from society, did not apply to conveyances because there was nothing criminal in possessing an automobile. Id. at 621, 113 S.Ct. 2801. The Court refused to articulate a test for determining whether a forfeiture exceeded the Excessive Fines Clause's limitations. Id. at 622, 113 S.Ct. 2801.

¶ 24 Austin is distinguishable in that there was no evidence that the mobile home and the business were directly related to the offense of possession with the intent to distribute or were purchased with the proceeds from a drug sale. Here, the allegations are that the $18,235.00 was found in close proximity to marihuana in violation of the Act which would, if proven, raise a presumption that the money is or has been used in a drug transaction. Unlike in Austin, the forfeiture of the $18,235.00 here, if supported by the evidence, disgorges the claimants of proceeds received in violation of the Act. The forfeiture here does not squarely fall under Austin's teachings.

¶ 25 Five years after the Austin decision, the Supreme Court decided Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314, in a five to four decision. Bajakajian failed to report to customs officials that he possessed in excess of $10,000.00 when boarding a flight to Italy in violation of title 31, sections 5316(a)(1)(A) and 5322(a) of the United States Code. Id. at 324-325, 118 S.Ct. 2028. In fact, inspectors found Bajakajian was transporting $357,144.00. Id. at 325, 118 S.Ct. 2028. As part of the criminal proceeding, the government sought forfeiture of the $357,144.00 pursuant to title 18, section 982(a)(1) of the United States Code. Id. at 325, 118 S.Ct. 2028. Bajakajian challenged the forfeiture as violating the Excessive Fines Clause. Id. at 324, 118 S.Ct. 2028.

¶ 26 The Bajakajian Court had no problem in finding the forfeiture of the $357,144.00 to be punitive. Id. at 328, 118 S.Ct. 2028. In determining that the forfeiture constituted punishment, the Bajakajian Court considered that the forfeiture was imposed as part of a criminal proceeding, required a felony conviction, and could not be imposed on an innocent owner. Id. at 328, 118 S.Ct. 2028. It noted: "Traditional in rem forfeitures were not considered punishment against the individual for an offense," and "traditionally were considered to occupy a place outside the domain of the Excessive Fines Clause." 524 U.S. at 330-331, 118 S.Ct. 2028.

¶ 27 The Bajakajian Court seems to retreat from Austin's strong language. Where the Austin Court crisply rejected the government's instrumentality argument, the Bajakajian Court, albeit be it in obiter dictum, recognized that "[i]nstrumentalities historically have been treated as a form of `guilty property' that can be forfeited in civil in rem proceedings." 524 U.S. at 333, 118 S.Ct. 2028. The Court concluded that because the forfeitures were not sought in in rem civil proceedings but in in personam criminal proceedings, the question of whether the currency was an instrumentality was irrelevant. Id. at 333-334, 118 S.Ct. 2028. But, it reiterated: "`Instrumentality' forfeitures have historically been limited to the property actually used to commit an offense and no more." Id. at 333 n. 8, 118 S.Ct. 2028 (quoting Austin 509 U.S. at 627-628, 113 S.Ct. 2801 (Scalia, J., concurring in part and concurring in judgment)). The Court continued that a forfeiture which exceeded this limited definition of instrumentality is ipso facto subject to the Excessive Fines Clause's limitations. Id. Under Bajakajian's language, it would appear that forfeiture of the $18,235.00 here would be purely remedial and not subject to the Excessive Fines Clause.

¶ 28 In the time between the decisions in Austin and Bajakajian, the United States Supreme Court decided United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (consolidated with United States v. $405,089.23 in United States Currency, case no. 95-346). In case number 95-346, the defendants were "convicted of conspiracy to aid and abet the manufacture of methamphetamine [and] conspiracy to launder monetary instruments, [along with actual] money laundering." Id. at 271, 116 S.Ct. 2135. The United States sought forfeiture in an in rem civil proceeding under the money laundering forfeiture statutes and under title 21, subsection 881(a)(6) of the United States Code. Subsection 881(a)(6) provided for the forfeiture of "(i) `[a]ll . . . things of value furnished or intended to be furnished by any person in exchange for' illegal drugs, (ii) `all proceeds traceable to such an exchange,' and (iii) `all moneys, negotiable instruments, and securities used or intended to be used to facilitate' a federal drug felony." Id. at 272, 116 S.Ct. 2135. The claimants attacked the forfeiture as violating the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

¶ 29 In Ursery, the Court acknowledged that "[t]o the extent that § 881(a)(6) applies to `proceeds' of illegal drug activity, it serves the additional nonpunitive goal of ensuring that persons do not profit from their illegal acts." Id. at 291, 116 S.Ct. 2135. Even though Ursery is an attack on forfeiture under the Double Jeopardy Clause, we believe that this statement would be equally applicable to attacks under the Excessive Fines Clause. As Justice Kennedy noted in his concurring opinion in Ursery, the proceeds of illegal drug activity "are the proceeds of unlawful activity. They are not property that respondents have any right to retain. The forfeiture of such proceeds, like the confiscation of money stolen from a bank, does not punish respondents because it exacts no price in liberty or lawfully derived property from them." Id. at 298, 116 S.Ct. 2135.

¶ 30 Under Ursery, because title 63, subsection 2-503(A)(7) disgorges illegally obtained monies from drug distribution, forfeitures under it are purely remedial and not subject to the Excessive Fines Clause under the United States Supreme Court's jurisprudence. Thus, we find that forfeiture under title 63, subsection 2-503(A)(7) is not limited by the Excessive Fines Clause.

VI. CONCLUSION

¶ 31 Here the district attorney alleged that the $18,235.00 was found in close proximity to marihuana possessed in violation of the Act. This allegation is sufficient to avoid a motion to dismiss, because if proven, a rebuttable presumption arises that the $18,235.00 was the proceeds of drug distribution. This presumption may be rebutted with proof that the $18,235.00 bore no nexus to a violation of the Act, and the district attorney may then present contrary evidence.

¶ 32 Because subsection 2-503(A)(7) is an in rem civil proceeding which disgorges illegally derived property, it is purely remedial. Thus, the Excessive Fines Clause's limitations do not apply to such forfeitures. Based on this conclusion, we need not determine whether the $18,235.00 is excessive.

¶ 33 The Court of Civil Appeals' opinion is vacated. The district court's judgment is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, OPALA (by separate writing), TAYLOR, JJ., concur.

KAUGER, J., concurs in result.

WATT, COLBERT, REIF (by separate writing), JJ., concur in part; dissent in part.