with whom WATT and COLBERT, JJ. join, concurring in part; dissenting in part.
€ 1 This Court granted certiorari to review an opinion of the Court of Civil Appeals that interpreted 63 0.8. Supp.2007 § 2-508(A)(7). This statute authorizes forfeiture of money found in close proximity to any amount of forfeitable substances. The Court of Civil Appeals interpreted § 2-503(A)(7) in affirming the dismissal of a proceeding in the district court of Bryan County, seeking forfeiture of money seized from Shawn Gandy.
T2 The controversy both in the district court and on appeal was whether $18,235.00 found on the person and in the car of Shawn Gandy could be forfeited under § 2-503(A)(7), when the amount of marijuana found in the vehicle only gave rise to a charge of simple possession. The district attorney for Bryan County has argued that the language "any amount of forfeitable substances" indicates legislative intent that the money in this case is forfeitable, irrespective of the criminal charge. The Court of Civil Appeals rejected this literal interpretation and held that 63 O.S. Supp.2007 § 2-503(A)(7) authorized forfeiture only if the money is found in close proximity to any *1087amount of forfeitable substances possessed in connection with the manufacturing, importation or distribution of controlled substances. The Court of Civil Appeals concluded that the general authorization to forfeit money was limited by its association with further specific authorizations to forfeit paraphernalia and records pertaining to manufacturing, importation and distribution.
13 On certiorari, a majority of this Court has recognized that "it is unclear what makes monies forfeitable under the Act." In resolving this uncertainty, the majority basically concludes it does not matter whether the amount of forfeitable substances (1) only supports a simple possession charge, or (2) is possessed in connection with manufacturing, importation or distribution; the majority holds that proof that money is found in close proximity to any amount of forfeitable substances is simply the predicate for a rebutta-ble presumption that "the monies are the proceeds from the distribution or manufacture of controlled dangerous substances." While I agree that § 2-508(A)(7) provides the rebuttable presumption noted by the majority, I believe this presumption is constitutionally infirm.
{4 This Court has held that the law abhors forfeitures, and statutes authorizing forfeiture of private property are to be strictly construed. State ex rel. Dept. Of Public Safety v.1985 GMC Pickup, 1995 OK. 75, ¶ 8, 898 P.2d 1280, 1282. This Court has also held that "the historical basis for forfeiture of private property, [is] that the property itself is 'guilty' of the offense and the 'forfeiture serves, at least in part, to punish the owner' for allowing his property to be used to commit the offense." Id. at ¶ 12, 898 P.2d at 1283 (citation omitted).
15 Under the majority interpretation of § 2-508(A)(7), money found in close proximity to forfeitable substances is potentially "guilty" of the offense of being proceeds of drug trafficking, and § 2-508(A)(7) facilitates proof of such "guilt" by means of rebuttable presumption. In my opinion, creating a "presumption of guilt" to implement a penal statutory scheme is a patent violation of due process.
T 6 Oklahoma law has long recognized that due process of law imposes a constitutional limit on the power of the legislature "to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated." Payne v. State, 1967 OK CR 194, ¶ 19, 435 P.2d 424, 427 (citation omitted). The rationale for this due process limitation applies equally to a presumption of the predicate "guilt" of property to support forfeiture, as it does to a presumption of the guilt of an accused to support the imposition of punishment.
17 Citing U.S. v. Romano, 382 U.S. 136, 86 S.Ct. 279 (1965), the court in Payne noted that "[sluch a legislative determination [i.e., a presumption of guilt] would not be sustained if there was 'no rational connection between the fact proved and the ultimate fact presumed." Payne, 1967 OK CR 194, ¶ 19, 435 P.2d at 427. The court also noted that a statutory presumption would be constitutionally infirm if the inference of the ultimate fact from proof of the statutory predicate fact is "arbitrary because of lack of connection between the two in common experience." Id.
18 The court further noted that "where the inference is so strained as not to have a reasonable relation to the cireumstances of life as we know them, it is not competent for the legislature to create [the presumption] as a rule governing the procedure of courts." Id. (citation omitted). The court in Payne pointed out that Romano reversed the conviction of an individual for possessing a still that resulted from "federal statutes authorizing an inference of guilt from defendant's unexplained presence at the site of the still." Payne, 1967 OK CR 194, ¶ 17, 435 P.2d at 427 (emphasis added).
T 9 "Common experience" and "the cireum-stances of life as we know them" teach that almost every adult person carries money on his or her person to supply a variety of needs and wants that are perfectly legal. "Common experience" and "the circumstances of life as we know them" also teach that some persons (particularly those without bank accounts) routinely carry large amounts of money for a variety of reasons that are perfectly legal. There is simply nothing illegal *1088about having a large amount of money. The fact that a person possesses a large amount of money "in close proximity" to a small amount of drugs found among other possessions does not invariably lead to the conclusion that the money has some "offending" connection to the drugs, any more than a person's unexplained presence at a still will support an inference that the person possesses the still.
T10 A similar conclusion was reached by the Court of Civil Appeals in the case of State of Oklahoma v. One (1) Stevens 12 GA. Shotgun, 2003 OK CIV APP 102, 82 P.3d 110. This case reversed the forfeiture of several firearms found in the residence where a small amount of marijuana was also found, in addition to cultivated marijuana on the property. The Court of Civil Appeals observed that "[tlhe establishment of some link or nexus [beyond mere presence] is particularly important in cases involving a residence where people commonly keep all of their possessions (both legal and illegal) to which they want ready access." Id. at T7, 82 P.8d at 112. The court stressed that "Lf mere presence with drugs and a dangerous capability to protect the drugs were alone sufficient to support forfeiture, a child's baseball bat, kitchen knives, ordinary scissors, sharp tools, and even the family dog who displays aggressiveness toward strangers would all be subject to forfeiture ... if found in the same room as drugs." Id.
111 In other words, the close proximity and presence of things of value and illegal drugs signifies nothing more than an owner's decision to keep his possessions at hand, whether in a residence or in a motor vehicle. Close proximity and mere presence certainly do not disclose anything about the source of items found with drugs.
{12 As the Court of Civil Appeals noted, requiring the State to establish a nexus for forfeiture is necessary "to guarantee that the government is seizing actual instruments of the illegal drug trade" and not property which has only an incidental or fortuitous connection to unlawful activity. Id. at 1 6, 82 P.3d at 112 (citation omitted). It is "unreasonable ... for a court to order the forfeiture of property which has only an incidental or fortuitous connection to the unlawful activity." Id. at ¶ 5, 82 P.3d at 112 (citation omitted).
13 The fact that a claimant of the money is given the opportunity to rebut the presumption of guilt provided by § 2-508(A)(7) begs the question of whether such a presumption is valid at all. As the Court of Civil Appeals has observed in construing a related forfeiture provision, "[t)he burden [is] upon the State to show some nexus between the currency and a violation of the Act, not upon [a] claimant to explain how he obtained it." State ex rel Means v. $1,354,450.50, 1992 OK CIV APP 56, ¶ 6, 841 P.2d 616, 618.
{14 The judgment of the district court underlying the appeal and certiorari review in this case, purports to "sustain" claimant Gandy's "motion to dismiss." However, this was not a true motion to dismiss. Claimant Gandy's motion presented a statement of conceded facts which the district attorney did not contest and, in fact, relied upon in making his legal argument in support of forfeiture. No evidence beyond the conceded facts was received, because the parties agreed that "the issue is one of law" and "presented [the issues] to the court on briefs of counsel." Rather than ruling on a true motion to dismiss, the trial court, in effect, granted summary judgment.
{15 Given this posture, this Court can properly consider the validity of the presumption without a predicate determination by the trial court. The validity of the presumption is a pure question of law that this Court will decide de novo, with or without the trial court's consideration of the issue.
1 16 More importantly, the issue is a public law issue and this Court is free to grant corrective relief upon any applicable legal theory tendered by the record brought for review. Russell v. Board of County Commissioners, Carter County, 1997 OK 80, ¶ 10, 952 P.2d 492, 497. In my opinion, the adverse public impact of such a patently invalid presumption requires this Court to address the issue at this juncture, not only to protect the citizens of this state, but to give much needed clarification and guidance to those who enforce the law.
*1089€ 17 In my opinion, it is particularly onerous to create a presumption of guilt to aid in the forfeiture of something as common as money, in light of the fact that the State need only prove grounds for forfeiture by a preponderance of the evidence. 63 O.S. Supp. 2007 § 2-506(G). If the State cannot show that the money it seeks to forfeit constitutes proceeds of drug trafficking by a preponderance of the evidence, then the public interest is better served by return of the money and not by elevating speculation and suspicion to the status of a presumption.
[18 In reaching this conclusion I wish to stress that the legislature may validly authorize the forfeiture of money found in close proximity to any amount of forfeitable substances upon proof of that the money constitutes proceeds of drug trafficking. What the Legislature cannot do is presume the money constitutes proceeds of drug trafficking or is being used to further drug trafficking based on the mere fact of presence and proximity. Stated another way, the constitutional infirmity in 68 0.8. Supp.2007 § 2-508(A)(7) is not what the Legislature seeks to accomplish in the public interest, but instead lies in the singular means of the presumption of guilt it provided to accomplish the end. The State may continue to pursue forfeiture of money under § 2-508(A)(7) and can prevail in such forfeitures upon meeting its burden of proof. It cannot, however, utilize the shorteut of the presumption set forth in § 2-508(A)(7).
119 Notwithstanding my dissent concerning the presumption, I join the majority in vacating the Court of Civil Appeals' opinion, reversing the district court's dismissal of the forfeiture proceeding and remanding for further proceedings for the State to prove the money seized from Shawn Gandy constituted proceeds from drug trafficking. However, I would instruct the trial court to require the State to meet its burden of proof without the aid of the presumption set forth in § 2-503(A)(7).
11 20 I also join the majority determination that forfeiture of the money in question would not constitute an excessive fine, regardless of any criminal charge, in the event the State can prove by a preponderance of the evidence that the money is the proceeds of drug trafficking. Even though forfeiture procedure has penal purposes and constitutional limitations, a judgment forfeiting money from one who has obtained it from violation of the law serves the equitable end of disgorging the wrongdoer of ill-gotten gains. The excessive fines provision of the Eight Amendment is not implicated in such cases.