(concurring specially).
I concur in the result. The majority has a well-reasoned opinion setting forth the history of forfeiture, including both federal and state cases. But I agree with the district court that the present system does more than appear arbitrary and capricious and unjust. It produces actual results that are arbitrary, capricious, and unjust.
The district court said in its memorandum, which was incorporated into its order:
[Tjhese open-ended forfeitures constitute cruel and unusual punishment, in violation of a defendant’s rights. There is also serious considerations concerning the equal protection laws, because one person who has a motor vehicle worth $40,000 with no indebtedness ends up with a $40,000 fine. On the other hand, a person with a $400 vehicle with encumbrances ends up not paying anything, or next to nothing, for the same offense. There is no logic or reasoning to the statutory system thus enacted.
I agree with the district court. The majority correctly concedes:
A civil in rem forfeiture with dual remedial and punitive purposes may violate the Excessive Fines Clause even if it passes the constitutional test for double jeopardy. Austin, 509 U.S. at 621-22, 113 S.Ct. at 2812; Lukkason, 590 *882N.W.2d at 808. Minnesota’s vehicle forfeiture statute, although styled as an action against the offending vehicle, has an obvious punitive effect on the vehicle’s owner. This aspect brings the forfeiture within the purview of the Eighth Amendment, despite the statute’s legitimate, additional remedial purpose of enhancing public safety. Lukkason, 590 N.W.2d at 807-08.
But then the majority goes on to conclude that the facts in this case are controlled by Lukkason where the owner had a net loss of over $11,500, undeniably more than the net loss appellant will suffer here. See Lukkason v.1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 808, 807 n. 3 (Minn.App.1999), review denied (Minn. May 18, 1999) (noting Lukkason’s claim that truck’s net value to him totaled $11,534.92). I cannot dispute the figures in Lukkason or in this case, which are matters of public record. Thus, I concur. But the criminal/civil forfeiture system turns a blind eye to the arbitrariness built into the system. A millionaire driving a $2,000 beater loses that vehicle and suffers no monetary consequence. A blue-collar worker who has saved all his life for his first new car could suffer a $20,000 to $40,000 loss for exactly the same offense. We do not do that anyplace else in the criminal justice system.
Misdemeanors have maximum fines in Minnesota. See Minn.Stat. § 609.02, subd. 3 (1998) (stating $700 is maximum fine for misdemeanor). Gross misdemeanors in Minnesota have maximum fines. Id., subd. 4 (1998) (stating $3,000 is maximum fine for gross misdemeanor). Felonies in Minnesota have stated maximum fines. See, e.g., Minn.Stat. §§ 609.245, subds. 1, 2 (listing maximum fines for aggravated robbery: $35,000 for first-degree, $30,000 for second-degree), 609.582, subds. 1, 2, 3 (1998) (listing maximum fines for felony burglary: $35,000 for first-degree, $20,000 for second-degree, $10,000 for third-degree).
These stated amounts are applied uniformly against defendants within the boundaries of a district court’s discretion to assess all of it, or part of it. On the other hand, with-forfeiture cases, whether snowmobiles, boats, motor vehicles, buildings, etc., the amount, as the district court pointed out in its memorandum, varies wildly from one person to the next for the same offenses. The amount of the forfeiture and its economic effect on the offender are not known until after the fact. With all other criminal/civil statutes that prescribe stated fines, the citizen knows beforehand the maximum penalties for a particular act; fair notice to people of the consequence of their act is an essential element of due process. The forfeiture statute at issue lacks that element of due process.