Justia.com Opinion Summary: Forfeiture proceedings were instituted concerning three vehicles; each had multiple owners, and, in each case, one of the owners was charged with aggravated DUI. The trial court declared the vehicle-forfeiture provisions of the Criminal Code facially unconstitutional as a violation of procedural due process for lack of a provision requiring a prompt probable cause hearing after seizure of a vehicle but before trial of the forfeiture action. A new statute, effective January 1, 2012, provides for such hearings. On direct appeal, the Illinois Supreme Court looked to U.S. Supreme Court decisions and reversed. The statutory scheme does not mandate the return of a vehicle just because one of the owners demonstrates innocence. Only one of the owners need give consent to use of a vehicle in the commission of an offense for the vehicle to be subject to forfeiture, and there is no constitutional requirement for an innocent-owner defense in a forfeiture proceeding. In most cases such as this, a prompt determination of probable cause is made in connection with the underlying criminal prosecution. In the Criminal Code, the forfeiture provisions themselves comport with due process, and there is no constitutional requirement for additional procedures.
Receive FREE Daily Opinion Summaries by Email Court description: In Du Page County in 2007 and 2008, three separate forfeiture proceedings were
instituted concerning three different motor vehicles. All had multiple owners, and,
in each case, one of the owners was charged with aggravated DUI. In all three cases,
the same counsel represented the claimants who sought the return of these vehicles.
He persuaded the circuit court of Du Page County to declare the vehicle-forfeiture
provisions of the Criminal Code of 1961 facially unconstitutional as a violation of
procedural due process for lack of a statutory provision requiring a prompt probable
cause hearing after seizure of a vehicle but before trial on merits of the forfeiture
action. (A new statute, effective January 1, 2012, provides for such hearings.) The
trial judge was concerned about the rights of noncriminally charged owners in
multiple-owner situations and viewed it as irrelevant that the United States Supreme
Court had held that “a long and unbroken line of cases holds that an owner’s interest
in property may be forfeited by reason of the use to which the property is put even
though the owner did not know that it was put to such use.” The forfeiture complaints
were dismissed with prejudice, and the State brought a direct appeal to the Illinois
Supreme Court. Subsequent to the circuit court’s disputed action, the Appellate
Court, Second District, decided several cases reaching an opposite conclusion,
relying on precedent in doing so.
In this opinion filed here, the Illinois Supreme Court looked to the United States
Supreme Court decisions in United States v. $8,850, 461 U.S. 555 (1983), and United
States v. Von Neumann, 474 U.S. 242 (1986), in reversing the holding of facial
unconstitutionality entered by the circuit court. The court said that the Illinois
statutory scheme does not mandate the return of a vehicle just because one of the
owners demonstrates his innocence. Only one of the owners need give his consent
to the use of a vehicle in the commission of an offense for the vehicle to be subject
to forfeiture, and there is no constitutional requirement for an innocent-owner
defense in a forfeiture proceeding. In most cases such as this, a prompt determination
of probable cause is made in connection with the underlying criminal prosecution.
In the Criminal Code of 1961, the forfeiture provisions themselves comport with due
process, and there is no constitutional requirement for additional procedures.
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2011 IL 110236
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 110236)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ONE
1998 GMC et al., Appellees.
Opinion filed December 30, 2011.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Garman and Theis concurred
in the judgment and opinion.
Justice Karmeier specially concurred, with opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
OPINION
¶1
The issue presented in this case is whether the vehicle-forfeiture
provisions of the Criminal Code of 1961 (the Criminal Code) (720
ILCS 5/36-1 through 36-4 (West 2006)) are facially unconstitutional
as a violation of procedural due process because they do not include
a provision requiring a prompt, probable cause hearing after the
seizure of a vehicle. We find that the forfeiture proceeding itself
provides all the process that is due in such cases, and therefore find
no constitutional defect in the statute.
¶2
¶3
BACKGROUND
This case involves an appeal from three vehicle-forfeiture
proceedings brought by the State in the circuit court of Du Page
County. The same attorney represented the claimants who sought
¶4
return of their vehicles in all three cases. In No. 07-MR-1126,
Wheaton police seized a 1998 GMC on July 24, 2007. The Du Page
County sheriff was notified of the seizure on August 3, 2007, and the
sheriff in turn sent notice by certified mail on August 7, 2007, to all
persons having an interest in the vehicle. On August 15, 2007, the
State filed a complaint for forfeiture of the vehicle, stating that the
owners were George Reardon and Reardon Painting, which both had
the same address in Winfield, Illinois. The complaint also listed the
vehicle identification number (VIN) and alleged that George Reardon
used the 1998 GMC prior to the seizure to commit the offense of
driving while license revoked or suspended (625 ILCS 5/6-303(a)
(West 2006)), at a time when his driver’s license or privilege to
operate a motor vehicle was suspended or revoked for a violation of
either section 11-501.1 or 11-501 of the Illinois Vehicle Code or a
similar provision of a local ordinance.1 The day before the forfeiture
complaint was filed, a grand jury indicted George Reardon in
Du Page County on two felony charges based on his conduct prior to
the seizure: aggravated driving under the influence of alcohol
(aggravated DUI) and driving while license revoked (DWLR) (625
ILCS 5/6-303(d) (West 2006)). As required by statute, the State sent
notice of the filing of the forfeiture complaint by certified mail on
August 16, 2007. The notice informed the owners that they had 20
days from the mailing of the notice to file a verified answer if they
wished to contest the action. See 720 ILCS 5/36-2(a) (West 2006).
George Reardon did not contest the State’s complaint within the
20-day period, but Linda Reardon, secretary of Reardon Painting,
Inc., filed a timely, verified answer on September 6, 2007. Thereafter,
Linda’s attorney sought and was granted continuances in the case on
December 12, 2007, and January 17, 2008. On May 13, 2008, the
1
Section 11-501 of the Illinois Vehicle Code (Vehicle Code)
prohibits driving under the influence of drugs or alcohol (DUI) and
prescribes various penalties. See 625 ILCS 5/11-501 (West 2006). Section
11-501.1 is the procedure for a statutory summary suspension of a driver’s
license related to DUI. The State’s complaint for forfeiture with respect to
George Reardon alleges a violation of section 6-303(a) of the Vehicle Code
(625 ILCS 5/6-303(a) (West 2006)). The forfeiture statute, along with
section 6-303(g) of the Vehicle Code, makes clear that a seizure and
forfeiture is allowed for the conduct as alleged in the State’s forfeiture
complaint pertaining to George. See 720 ILCS 5/36-1 (West 2006); 625
ILCS 5/6-303(c), (g) (West 2006).
-2-
¶5
case was again continued on Linda’s motion, this time until August
1, 2008, to “track the underlying criminal case.” On August 1, 2008,
the court again continued the case at Linda’s request, but in this
instance it was to allow her to file a motion to dismiss pursuant to
section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS
5/2-619 (West 2006)) and to allow the parties time to brief the issues
that would arise from her motion. On September 11, 2008, a section
2-619 motion to dismiss was filed, listing “George Reardon” as the
claimant and arguing that the forfeiture provisions of the Code were
unconstitutional. The case was set for a hearing to be held October
15, 2008, but further delay resulted from the court giving Linda
Reardon’s attorney time to file amended pleadings. Then, on
November 10, 2008, an amended motion was filed listing “George
Reardon, Linda Reardon, and Reardon Painting, Inc.,” as claimants.
The text of the amended motion, however, stated that the “claimant
herein is Linda Reardon and Reardon Painting, Inc.” The trial court
heard argument on the motion on February 18, 2009, and March 24,
2009. The court ordered that the amended motion itself be “amended
to reflect that the claimant’s name is ‘Linda Reardon, Secretary of
Reardon Painting Inc.,’ and not George Reardon.” On March 30,
2009, the court ordered additional briefing, with which the parties
complied. Multiple hearings were then held and the case was
consolidated for a ruling with the other two cases discussed below.
In No. 08-MR-1320, Carol Stream police seized a 1996 Chevrolet
on August 8, 2008, and notified the Du Page County sheriff of the
seizure on August 18, 2008. The sheriff then sent notice of the seizure
to all persons having an interest in the vehicle. On August 28, 2008,
the State filed a two-count complaint seeking forfeiture of the 1996
Chevrolet, listing Michael S. Adams, Jessica S. Adams, and PGL CC
Employees Credit Union as the owners or parties of interest in the
vehicle. The complaint also set forth the vehicle’s VIN. Count I
alleged that prior to the seizure on August 8, 2008, the vehicle was
used in the commission of the offense of aggravated DUI (625 ILCS
5/11-501(d)(1)(A) (West 2006)), “in that the vehicle was operated by
Michael S. Adams while under the influence of alcohol, the defendant
having at least two prior violations of driving under the influence,” in
violation of section 11-501, or a similar provision of a local
ordinance. Count II alleged that prior to the seizure on August 8,
2008, the vehicle was used in the commission of the offense of
aggravated DUI (625 ILCS 5/11-501(d)(1)(H) (West 2006)), in that
the vehicle was operated by Michael Adams when he knew or should
-3-
¶6
¶7
have known that the vehicle he was driving was not covered by a
liability insurance policy. Michael Adams was also indicted by a
Du Page County grand jury of two counts of aggravated DUI
stemming from the incident.
The State sent the statutory notice of the filing of the forfeiture
complaint on September 4, 2008, to the three potential interest
holders. On September 24, 2008, Michael Adams filed a verified
answer to the complaint. The answer did not challenge the
constitutionality of the forfeiture statute. However, about two months
later, on December 30, 2008, Michael filed a motion seeking to
declare the statute unconstitutional and return of the seized 1996
Chevrolet. Thereafter, additional briefing was requested, and as noted
previously, the case was eventually consolidated with the other two
for a ruling on the constitutional challenge.
In No. 08-MR-1614, the Illinois State Police seized a 2002
Chevrolet in Du Page County on October 4, 2008. The Du Page
County sheriff was notified of the seizure on October 8, 2008, and
certified mail notice of the seizure was sent to all persons having an
interest in the seizure on that same date. On October 14, 2008, the
State filed a two-count forfeiture complaint against the 2002
Chevrolet, listing the VIN and stating that the owners or parties of
interest were Robert K. Messina, Mary Jo Messina and Wells Fargo
Auto Finance. Count I alleged that prior to the seizure, the vehicle
was used in the commission of the offense of aggravated DUI (625
ILCS 5/11-501(d)(1)(A) (West 2006)), in that the vehicle was
operated by Robert Messina while under the influence of alcohol, at
a time when he had at least two prior violations for DUI in violation
of section 11-501 of the Vehicle Code, or a similar provision of a
local ordinance. Count II alleged that prior to the seizure, the vehicle
was used in the commission of the offense of aggravated DUI (625
ILCS 5/11-501(d)(1)(H) (West 2006)), in that the vehicle was
operated by Robert Messina while under the influence of alcohol at
a time when he knew or should have known that the vehicle he was
driving was not covered by a liability insurance policy. A Du Page
County grand jury eventually indicted Robert Messina on two counts
of aggravated DUI based on the event. On October 14, 2008, the State
sent the required certified mail notice of the forfeiture complaint to
the three interest holders. On October 21, 2008, Robert Messina filed
a verified answer. The answer did not challenge the constitutionality
of the Act. But in January 2009, Robert filed a motion to declare the
-4-
¶8
¶9
vehicle-forfeiture provisions of the Code unconstitutional. Further
briefing was ordered and, again, the case was consolidated with the
others for a ruling.
The trial court rendered a written decision on the consolidated
case on November 17, 2009. The court found that the statutory
forfeiture provisions were facially unconstitutional, determining that
they violated the due process clauses of the Illinois Constitution and
the fifth and fourteenth amendments of the United States
Constitution. The court applied the three-part test of Mathews v.
Eldridge, 424 U.S. 319 (1976), and relied heavily upon United States
v. James Daniel Good Real Property, 510 U.S. 43 (1993), and
Krimstock v. Kelly, 306 F.3d 40 (2d Dist. 2002), to rule that due
process required that the statute contain a provision for a prompt,
probable cause hearing postseizure to allow claimants to test the
State’s right to retain their vehicles while they await trial on the
merits of the forfeiture action. The court also found that due process
required that the State assume the burden of proof at the probable
cause hearing to “demonstrate the non-criminally charged owner’s
‘guilt’ to justify holding the vehicle in the first place.” Finally, the
court determined that the appropriate remedy here was to dismiss
each of the forfeiture complaints with prejudice. It concluded that this
judgment could not rest on any alternative grounds.
On December 16, 2009, the State filed a motion to reconsider the
trial court’s decision, raising a number of arguments. In a written
decision entered March 12, 2010, the trial court rejected each of the
State’s arguments and denied the motion to reconsider. In doing so,
the court first addressed the State’s contention that dismissal of its
forfeiture complaints was not proper under section 2-619(a)(9)
because the failure to provide a probable cause hearing was not an
“affirmative matter avoiding the legal effect of or defeating the
claim” within the meaning of that section. See 735 ILCS 5/2619(a)(9) (West 2006). The court disagreed, finding that the State’s
right to forfeiture was based entirely upon the statute, and the lack of
a probable cause hearing rendered the statute a nullity and incapable
of being enforced. The court then rejected the State’s second
contention that there were other remedies short of dismissal. It stated
that this was not a case where a part of the statute could be severed or
ignored to save the remainder of the legislation. Rather, the defect in
the statute was due to something the legislation lacked, namely, a
probable cause hearing. In the court’s view, the statute could not be
-5-
¶ 10
saved by simply providing a probable cause hearing because to do so
would be to rewrite the legislation and create a legislative scheme that
may or may not be in accord with the wishes of the General
Assembly. The court next addressed the contention that it erred in
finding that the State would be required to show, at a probable cause
hearing, that all of the owners of the seized vehicle were to some
extent culpable for the crime that gave rise to the vehicle’s seizure
before the State could continue to hold the vehicle pending the
outcome of the forfeiture proceeding. The court acknowledged the
State’s reliance on Bennis v. Michigan, 516 U.S. 442, 446 (1996),
which observed that “a long and unbroken line of cases holds that an
owner’s interest in property may be forfeited by reason of the use to
which the property is put even though the owner did not know that it
was to be put to such use.” But the court found Bennis “irrelevant” in
light of differences between the present statute and the Michigan
statute involved in Bennis.
Following the denial of its motion to reconsider, the State
properly appealed directly to this court as a matter of right. See Ill. S.
Ct. R. 603 (eff. Oct. 1, 2010). The day after the State filed its notice
of appeal, the Appellate Court, Second District, decided another set
of consolidated forfeiture cases involving the same basic argument
regarding the constitutionality of the forfeiture provisions at issue
here. See People v. 1998 Ford Explorer, 399 Ill. App. 3d 99 (2010).
In 1998 Ford Explorer, the appellate court rejected the argument that
the provisions were unconstitutional as applied because they did not
provide for a prompt, probable cause hearing. The appellate court
relied upon United States v. Eight Thousand Eight Hundred & Fifty
Dollars ($8,850) in United States Currency, 461 U.S. 555 (1983), and
United States v. Von Neumann, 474 U.S. 242 (1986), to hold that the
forfeiture proceedings themselves comported with due process so that
no additional procedures were required. 1998 Ford Explorer, 399 Ill.
App. 3d at 102. The holding in 1998 Ford Explorer was followed by
the Illinois Appellate Court in People v. Lexus GS 300, 402 Ill. App.
3d 462, 467 (1st Dist. 2010) (State may seize property subject to
forfeiture under the forfeiture provisions of section 36-1 of the
Criminal Code (720 ILCS 5/36-1 et seq. (West 2002)) without a
preseizure hearing), and People v. 1996 Honda Accord, 404 Ill. App.
3d 174, 175 (2d Dist. 2010) (held that similar provisions of the Drug
Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 2008)),
and the Cannabis Control Act (720 ILCS 550/12 (West 2008)) did not
violate due process simply because they did not provide for a prompt,
-6-
probable cause hearing). We now consider the constitutionality of the
vehicle-forfeiture provisions at issue.
¶ 11
¶ 12
¶ 13
ANALYSIS
I. Propriety of Section 2-619 Motion to Attack
Constitutionality
At the outset, we express our agreement with the trial court’s
determination that it was necessary to reach the constitutional
question presented. The State suggests that a motion to dismiss
brought pursuant to section 2-619(a)(9) can never be a proper vehicle
to attack the constitutionality of a statute. We believe, however, that
the State is mistaken that the constitutional question should not be
reached under the circumstances here. Section 2-619(a)(9) allows for
dismissal of an action on the ground that “the claim asserted against
defendant is barred by other affirmative matter avoiding the legal
effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West
2010). It is claimants’ contention that the forfeiture statute is facially
unconstitutional because it does not provide an early opportunity for
a probable cause hearing to test the validity of the seizure pending the
outcome of the forfeiture proceeding. Claimants assert that this is an
affirmative matter which would defeat the State’s claim to forfeiture
because if they are correct that the Constitution requires a probable
cause hearing, the statute would be declared a nullity and void ab
initio and the vehicles would be ordered immediately returned to
claimants. See, e.g., People v. Wright, 194 Ill. 2d 1, 24 (2000); People
ex rel. Sklodowski v. Illinois, 162 Ill. 2d 117, 136 (1994) (Freeman,
J., concurring in part and dissenting in part, joined by Harrison, J.)
(“legislation unconstitutional on its face is void, not merely
voidable”); In re Contest of the Election for the Offices of Governor
& Lieutenant Governor Held at the General Election on November
2, 1982, 93 Ill. 2d 463, 471 (1983). The State counters by contending
that even if due process is violated by the failure of the statute to
provide for a probable cause hearing, the appropriate remedy would
not be dismissal of the forfeiture action, but rather for this court to
order that a probable cause hearing be conducted. We disagree with
the State. The trial court correctly found that to fashion the remedy
suggested by the State would require the court to significantly rewrite
the legislation. The rule is well settled in Illinois that our state courts
may not rewrite legislation to avoid constitutional issues or create a
remedy for a constitutional violation. City of Urbana v. Andrew N.B.,
-7-
211 Ill. 2d 456, 477 (2004); see also DeSmet v. County of Rock
Island, 219 Ill. 2d 497, 510 (2006); In re Branning, 285 Ill. App. 3d
405, 410 (1996) (rule of construing a statute so as to uphold its
constitutionality when reasonably possible is not a license to rewrite
legislation). Thus, if the claimants are correct that the lack of a
probable cause hearing violates due process, the statute would be
facially unconstitutional and the appropriate remedy would be
dismissal. The State concedes that if the statute is declared
constitutionally defective and dismissal is deemed the appropriate
remedy, then the motion to dismiss was properly brought under
section 2-619(a)(9). Accordingly, we must reach the merits of the
constitutional question presented by this case.
¶ 14
¶ 15
¶ 16
II. Statutory Scheme
We begin with an overview of the statutory scheme. Section 36-1
of the Criminal Code provides that any vehicle used with the
“knowledge and consent of the owner” in the commission of any of
the offenses enumerated may be seized and delivered “forthwith” to
the sheriff of the county where the seizure occurred. 720 ILCS 5/36-1
(West 2006). The offenses listed in the statute that make a vehicle
subject to seizure include such crimes as the aggravated DUI and
DWLR offenses allegedly committed in the present case. See 720
ILCS 5/36-1 (West 2006).
Once a seized vehicle is delivered to the sheriff, he has 15 days to
notify the State’s Attorney of the county where the seizure occurred.
720 ILCS 5/36-1 (West 2006). The statute allows the spouse of an
owner of a seized vehicle to make a showing that the seized vehicle
is the only source of transportation and that the financial hardship to
the family would outweigh the benefit to the State from the seizure.
720 ILCS 5/36-1 (West 2006). Return of the vehicle under this
hardship provision, however, is discretionary, not mandatory. See 720
ILCS 5/36-1 (West 2006) (the seized vehicle “may be” returned to the
spouse or family member under this provision); see also People v.
Reed, 177 Ill. 2d 389, 393 (1997) (legislature’s use of the word “may”
generally indicates a permissive or directory reading, rather than a
mandatory one). Likewise, the statute provides for a discretionary
return of the vehicle in cases where “forfeiture was incurred without
willful negligence or without any intention on the part of the owner
of the *** vehicle *** or any person whose right, title or interest is
of record ***, to violate the law, or finds the existence of such
-8-
¶ 17
¶ 18
mitigating circumstances as to justify remission of the forfeiture.” 720
ILCS 5/36-2(a) (West 2006). In such circumstances, the State’s
Attorney “may cause the sheriff to remit the [vehicle] upon such
terms and conditions as the State’s Attorney deems reasonable and
just.” (Emphasis added.) 720 ILCS 5/36-2(a) (West 2006). The
State’s Attorney is to “exercise his discretion under the foregoing
provision *** promptly after notice is given in accordance with
Section 36-1.” 720 ILCS 5/36-2(a) (West 2006). If the State’s
Attorney exercises his discretion against remitting the vehicle, he is
to “forthwith bring an action for forfeiture.” 720 ILCS 5/36-2(a)
(West 2006). Once notified of the forfeiture proceeding, the owner of
the vehicle or any person whose right, title or interest is of record
“may within 20 days *** file a verified answer *** and may appear
at the hearing on the action for forfeiture.” 720 ILCS 5/36-2(a) (West
2006).
The State has the burden at the forfeiture hearing to show by a
preponderance of the evidence that the vehicle was used in the
commission of an offense described in section 36-1. 720 ILCS 5/362(a) (West 2006). If the State fails to make this required showing, the
court must order the vehicle released to the owner. 720 ILCS 5/362(a) (West 2006). The statute also allows the owner, or any person
whose right, title or interest is of record, to show by a preponderance
of the evidence that “he did not know, and did not have reason to
know,” that the vehicle was to be used in the commission of an
offense. 720 ILCS 5/36-2(a) (West 2006). The statute, however, does
not provide for automatic return of the vehicle if an owner or person
of interest makes such a showing. See 720 ILCS 5/36-2(a) (West
2006). Instead, the statute makes such a return discretionary with the
court. See 720 ILCS 5/36-2(a) (West 2006) (where the State has made
its showing, “the Court may order the *** vehicle *** destroyed;
may order it delivered to any local, municipal or county law
enforcement agency, or the Department of State Police or the
Department of Revenue of the State of Illinois; or may order it sold
at public auction” (emphasis added)).
Finally, section 36-4 of the Code provides for a remission
procedure that allows a claimant or other person interested in a
vehicle to file a petition for remission with the Attorney General. 720
ILCS 5/36-4 (West 2006). The provision makes clear that the
Attorney General may grant remission of the vehicle if he finds the
existence of mitigating circumstances to justify remission of the
-9-
forfeiture, including that the owner or interested person incurred the
forfeiture innocently, without any willful negligence or any intention
to violate the law. 720 ILCS 5/36–4 (West 2006). But again, this
provision makes the return of the vehicle in such cases purely
discretionary, stating that the Attorney General “may cause the
[vehicle] to be remitted upon such terms and conditions as he deems
reasonable and just, or order discontinuance of any forfeiture
proceeding relating thereto.” 720 ILCS 5/36-4 (West 2006).
¶ 19
¶ 20
¶ 21
III. Standard of Review
Statutes are presumed constitutional, and the party challenging a
statute has the burden of establishing a clear constitutional violation.
People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009). Thus,
this court will affirm the constitutionality of a statute if it is
reasonably capable of such a determination (People v. Johnson, 225
Ill. 2d 573, 584 (2007)), and will resolve any doubt as to the statute’s
construction in favor of its validity (People v. Boeckmann, 238 Ill. 2d
1, 6-7 (2010)). Moreover, a challenge to the facial validity of a statute
is the most difficult challenge to mount successfully because an
enactment is invalid on its face only if no set of circumstances exists
under which it would be valid. Napleton v. Village of Hinsdale, 229
Ill. 2d 296, 305-06 (2008). The validity of a statute is a question of
law, which this court reviews de novo. People v. Madrigal, 241 Ill. 2d
463, 466 (2011).
The fifth and fourteenth amendments to the United States
Constitution, as well as the due process clause of the Illinois
Constitution, contain very similar prohibitions against depriving any
person of “life, liberty, or property, without due process of law.” See
U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2. Under
People v. Caballes, 221 Ill. 2d 282, 313-14 (2006), if there are
“cognate provisions” of the two constitutions, as is the case here,
Illinois courts will follow United States Supreme Court precedent
unless one of the two conditions recognized in Caballes is present.
Neither condition noted in Caballes is present here, and none of the
parties argue otherwise. Accordingly, we will follow United States
Supreme Court precedent construing the due process clause in
circumstances similar to the present case. See People v. Pecoraro,
175 Ill. 2d 294, 318 (1997) (this court declined to construe our state
due process clause more broadly than the due process clause of the
fourteenth amendment).
-10-
¶ 22
¶ 23
¶ 24
¶ 25
IV. Due Process Requirements
The guarantee of due process normally compels the government
to provide notice and an opportunity to be heard before a person is
deprived of property. United States v. James Daniel Good Real
Property, 510 U.S. 43, 47 (1993). This general rule, however, is
subject to “some exceptions.” Id. at 53. For example, a predetention
hearing is not required if the property is mobile and could be removed
to another jurisdiction, destroyed or concealed if advanced warning
of confiscation were given. Id. at 52-53.
In the present case, the claimants do not argue that due process
required a predetention hearing. Rather, they argue that they are
entitled to a “meaningful hearing at a meaningful time” after the
seizure has occurred. They contend that waiting for the outcome of
the forfeiture proceeding, which could take months, does not satisfy
this standard in the absence of a “prompt” probable cause hearing
after the seizure.
We believe that claimants’ due process argument is unpersuasive
when compared with United States Supreme Court precedent and
must therefore be rejected. In United States v. Eight Thousand Eight
Hundred & Fifty Dollars ($8,850) in United States Currency, 461
U.S. 555 (1983), Customs Service officials seized $8,850 from the
claimant when she failed to declare the currency upon entry into this
country. The federal statutory and regulatory scheme in effect at the
time $8,850 was decided was not much different in key respects from
our current Illinois forfeiture statute. In $8,850, Customs was required
by federal regulation to notify any person who appeared to have an
interest in the seized property of the property’s liability to forfeiture
and of the claimant’s right to petition the Secretary of the Treasury for
remission or mitigation of forfeiture. 19 C.F.R. § 162.31(a) (1982).
Another federal provision also gave the Secretary discretion to “remit
any forfeiture or penalty *** in whole or in part upon such terms and
conditions as he deems reasonable and just.” 31 U.S.C. § 1104. The
regulations required the claimant to file a remission petition within 60
days of notification. 19 C.F.R. § 171.12(b) (1982). If the claimant did
not file a petition, or if the decision on the petition made legal
proceedings appear unnecessary, Customs was required to prepare a
full report of the seizure for the United States Attorney. 19 U.S.C.
§ 1603 (1982). At the time of the seizure in $8,850, the federal
scheme did not contain a time limit or a requirement of a prompt
-11-
¶ 26
¶ 27
report by Customs to the United States Attorney for purposes of
instituting forfeiture proceedings. $8,850, 461 U.S. at 558 n.3. Upon
receipt of the report, however, the United States Attorney was
required “ ‘immediately to inquire into the facts’ ” and if it appears
probable that a forfeiture has been incurred, “ ‘forthwith to cause the
proper proceedings to be commenced and prosecuted, without
delay.’ ” $8,850, 461 U.S. at 558 (quoting 19 U.S.C. § 1604). There
was, however, no strict time limit within which the forfeiture
proceeding had to be concluded. Finally, the statute provided that
once a case is reported to the United States Attorney for legal
proceedings, no administrative action may be taken on any petition
for remission or mitigation. 19 C.F.R § 171.2(a) (1982).
In $8,850, claimant’s currency was seized on September 10, 1975,
and eight days later the Customs Service formally notified her by mail
that the seized property was subject to forfeiture and that she had a
right to petition for remission or mitigation. A week later, the
claimant filed a petition for remission or mitigation, stating that the
violation was unintentional because she had believed that she was
only required to declare funds that had been obtained in another
country and that she had brought the seized funds with her from the
United States at the start of her trip. Thereafter, the Customs officer
assigned to the case delayed filing the report of the seizure with the
United States Attorney for seven months while the officer
investigated the case. Claimant was eventually indicted on charges of
making false statements to a Customs officer and of transporting
currency into the United States without filing the required report.
Disposition of the remission petition was then held pending the
resolution of the criminal trial. Finally, in March 1977, some 18
months after the currency was seized, the United States Attorney filed
a civil complaint seeking forfeiture of the currency. Claimant raised
an affirmative defense to the suit, asserting that the government’s
“ ‘dilatory processing’ of her petition for remission or mitigation and
‘dilatory’ commencement of the civil forfeiture action violated her”
due process right to a hearing at a meaningful time. $8,850, 461 U.S.
at 560-61.
The Supreme Court in $8,850 framed the question before it as
when does a postseizure delay “become so prolonged that the
dispossessed property owner has been deprived of a meaningful
hearing at a meaningful time.” $8,850, 461 U.S. at 562-63. The Court
then found that the question of when the government’s delay in
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¶ 28
¶ 29
commencing the forfeiture suit violates the due process right to a
hearing is analogous to the issue of when the government’s delay
violates the right to a speedy trial. Id. at 564. Using that analogy, the
Court then adopted the test it developed in Barker v. Wingo, 407 U.S.
514 (1972), to resolve speedy-trial issues. $8,850, 461 U.S. at 564.
The Barker test calls for the weighing of four factors: length of delay,
the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant. $8,850, 461 U.S. at 564 (citing Barker,
407 U.S. at 530). After applying the Barker test, the Court concluded
that the 18-month delay in initiating the forfeiture suit did not violate
claimant’s due process right to a “meaningful hearing at a meaningful
time,” and that the delay in filing the suit was reasonable. Id. at 56369.
In the present case, claimants acknowledge that the Supreme
Court in $8,850 did indeed frame the issue as “when a postseizure
delay may become so prolonged that the dispossessed property owner
has been deprived of a meaningful hearing at a meaningful time.”
They argue, however, that $8,850 does not apply to this case because
$8,850 involved the seizure of cash and not the seizure of an
automobile, upon which one’s livelihood might depend. Moreover,
we add that one might also argue that $8,850 involved the time limits
within which the forfeiture action itself must be initiated, and not the
timing of an interim postseizure hearing. We find, however, that such
limited readings of $8,850 might be supportable if the United States
Supreme Court itself had not read the case more expansively less than
three years later in United States v. Von Neumann, 474 U.S. 242
(1986). See Krimstock v. Safir, No. 99 Civ. 12041 MBM, 2000 WL
1702035, at *5 (S.D.N.Y. Nov. 13, 2000), vacated, 306 F.3d 40.
In Von Neumann, the claimant argued that the government’s delay
in responding to his remission petition filed to challenge the seizure
of his car by United States Customs agents deprived him of his
property without due process of law. The Court of Appeals for the
Ninth Circuit emphasized the importance of the automobile in our
society before holding that Customs’ 36-day delay violated claimant’s
due process rights. The Ninth Circuit further held that Customs was
constitutionally required to act promptly “ ‘on a petition for remission
or mitigation within 24 hours of receipt,’ *** [and] claimant ha[d] a
right to a personal appearance to present his or her claim.” See Von
Neumann, 474 U.S. at 247 (citing Von Neumann v. United States, 660
F.2d 1319, 1326-27 (9th Cir. 1981)). But the United States Supreme
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¶ 30
¶ 31
¶ 32
¶ 33
¶ 34
Court reversed. In doing so, the high Court found that the claimant
did not have a constitutional right to a prompt disposition of his
remission petition while awaiting the forfeiture proceeding. Von
Neumann, 474 U.S. at 249. The Court found that this was because
“[i]mplicit in this Court’s discussion of timeliness in $8,850 was the
view that the forfeiture proceeding, without more, provides the
postseizure hearing required by due process to protect [claimant’s]
property interest in the car.” (Emphasis added.) Von Neumann, 474
U.S. at 249. Later in the opinion, the Court again underscored this
precept by stating, “[W]e have already noted that [claimant’s] right
to a forfeiture proceeding meeting the Barker test satisfies any due
process right with respect to the car ***.” Von Neumann, 474 U.S. at
251.
From the foregoing discussion of $8,850 and Von Neumann, we
conclude that if the due process right to a meaningful postseizure
hearing at a meaningful time requires only the forfeiture proceeding,
it does not also require a probable cause hearing. Accordingly, we
find that the trial court’s determination to the contrary was erroneous.
V. Krimstock
In support of its position that a prompt, probable cause hearing
was required while awaiting the forfeiture hearing, the trial court
relied heavily upon the decision of the United States Court of Appeals
for the Second Circuit in Krimstock v. Kelly, 306 F.3d 40 (2d Cir.
2002). We believe that Krimstock is distinguishable on its facts and
not controlling of the outcome in the present case. Furthermore, it
appears that Krimstock was wrongly decided in light of the Supreme
Court precedent discussed above. Thus, we do not find it persuasive.
In Krimstock, a New York City ordinance authorized the City’s
property clerk to take custody, following seizure, of all property used
as a means of committing crime. If a claimant made a formal demand
for return of a vehicle, the City had 25 days in which either to initiate
a civil forfeiture proceeding or to release the vehicle. However, even
when the City chose to commence a civil forfeiture proceeding within
the 25-day period, the proceeding was commonly stayed until the
criminal proceeding concluded. Krimstock, 306 F.3d at 45. This
resulted in a situation where the forfeiture proceedings generally took
“months or even years to be finalized.” Krimstock, 306 F.3d at 44.
In contrast to Krimstock, there is no evidence in the record before
us that forfeiture proceedings in Illinois are commonly stayed until
-14-
¶ 35
¶ 36
¶ 37
after the criminal proceedings. In fact, the record suggests claimants
here could have had a resolution on the merits of their forfeiture
proceedings within a few months of the seizures, at latest, if not for
the claimants’ multiple requests for continuances and their
constitutional challenges to the statute.
The United States District Court in Krimstock undertook a
thorough discussion of $8,850 and Von Neumann to conclude that due
process considerations did not require a probable cause hearing.
Krimstock v. Safir, No. 99 Civ. 12041 MBM, 2000 WL 1702035, at
*7 (S.D.N.Y. Nov. 13, 2000), vacated, 306 F.3d 40. Relying on this
Supreme Court precedent, the district court observed that the
“meaningful hearing at a meaningful time” required by the
Constitution was the forfeiture hearing itself. Id. at *5, *7.
The Second Circuit, however, reversed the district court’s ruling
and instead held that a probable cause hearing was required in
addition to the forfeiture proceeding. Krimstock, 306 F.3d at 69. In
reaching this determination, the court did not discuss $8,850 at all
other than to very briefly note that $8,850 employed the Barker test.
See Krimstock, 306 F.3d at 52. The court then wrote that “to say that
the forfeiture proceeding, which often occurs more than a year after
a vehicle’s seizure, represents a meaningful opportunity to be heard
at a meaningful time on the issue of continued impoundment is to
stretch the sense of that venerable phrase to the breaking point.”
Krimstock, 306 F.3d at 53. The court did not explain how its
commentary squared with the fact that the forfeiture proceeding in
$8,850 was not even initiated until 18 months after the seizure, nor
did it explain the fact that there was no statutory or administrative
requirement in place in $8,850 that mandated a prompt, probable
cause hearing. The court also offered no real discussion of Von
Neumann or of the Supreme Court’s statement in that case that “the
forfeiture proceeding, without more, provides the postseizure hearing
required by due process.” Von Neumann, 474 U.S. at 249.
Krimstock did attempt to briefly distinguish Von Neumann in a
footnote. First, it stated that Von Neumann addressed the “different
issue of what process was due in proceedings for remission or
mitigation under U.S. customs laws when a claimant could challenge
the seizure of his or her property in judicial forfeiture proceedings.”
Krimstock, 306 F.3d at 52 n.12. Second, it noted that the claimant in
Von Neumann could have filed a motion for return of the vehicle
under Federal Rule of Criminal Procedure 41(e), if it was believed the
-15-
¶ 38
¶ 39
seizure was improper. And finally, it noted that Customs had actually
released the claimant’s vehicle after he posted bond. Krimstock, 306
F.3d at 52 n.12.
We do not believe that these are valid bases for distinguishing
Von Neumann. As to Krimstock’s first point, we note that a petition
for remission or mitigation where the Secretary of the Treasury
considers whether the property seized by Customs should be returned
because of a lack of “willful negligence or *** any intention *** to
defraud” could at least be considered analogous to a probable cause
hearing. See 19 U.S.C. § 1618 (Supp. III 1985). Notably, testimony
may be taken at the federal remission hearing. See 19 U.S.C. § 1618
(Supp. III 1985). If the timing of the remission procedure or its
essential character did not satisfy due process standards and
something more than a forfeiture proceeding was required, the
Supreme Court would not have said that the forfeiture proceeding
itself provides all the process that is due in Von Neumann. The
Second Circuit’s point also ignores Von Neumann’s broad reading of
what constitutes a “meaningful hearing at a meaningful time” under
$8,850.
Secondly, Krimstock’s point about the option in Von Neumann for
filing a motion under Federal Rule of Criminal Procedure 41(e) is a
red herring. The discussion in Von Neumann about Rule 41(e) was
placed in a footnote and was clearly dicta that was not essential to the
holding. Moreover, the option to file the motion under federal law
only exists for a limited time until a civil forfeiture action is filed.
Once a forfeiture action is filed, the option to file the motion is lost.
See, e.g., United States v. One 1985 Black Buick Automobile, 725 F.
Supp. 148, 150 (W.D.N.Y. 1989). There is also no indication that
there were any time limits imposed on resolving a motion brought
under Rule 41(e). Just like the civil forfeiture proceeding itself, it
appears possible for proceedings under a Rule 41(e) motion to be met
with substantial delays. Additionally, a Rule 41(e) motion is
something that would have to be initiated by a claimant. Krimstock
never explained whether the New York statutory scheme failed to
include an opportunity for the filing of a similar motion. But we do
know that Illinois’s statutory scheme contains a provision similar to
federal Rule 41(e), as well as providing other opportunities to
challenge a vehicle unlawfully retained. Compare 725 ILCS 5/11412(a) (West 2008) (“A defendant aggrieved by an unlawful search
and seizure may move the court for the return of property.”), with
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¶ 40
¶ 41
Fed. R. Crim. P. 41(g) (“A person aggrieved by an unlawful search
and seizure of property *** may move for the property’s return.”); see
also People v. $1,124,905 U.S. Currency, 177 Ill. 2d 314, 340, 341
(1997) (a claimant’s section 2-615 motion to dismiss challenging the
legal sufficiency of the State’s allegations of probable cause that are
apparent on the face of the complaint provides an early opportunity
for a claimant to challenge the seizure in order to obtain return of the
property wrongfully seized).2 Thus, accepting arguendo Krimstock’s
suggestion that a procedure like Rule 41(e) would be key to
upholding a statute that does not contain a provision for a probable
cause hearing, the Illinois statutory scheme would still pass
constitutional muster even under Krimstock’s analysis.
Thirdly, Krimstock overlooked that the mechanism in Von
Neumann for releasing a vehicle upon the posting of bond was
discretionary with the Secretary of the Treasury. Krimstock also failed
to take into consideration that the amount of bond posted in Von
Neumann was equal to the entire fair market value of the car, which
in that case required the claimant to pay $24,500 in order to get his
vehicle released pending the forfeiture proceeding. Moreover, Von
Neumann specifically noted that claimant’s “right to a forfeiture
proceeding meeting the Barker test satisfied any due process right
with respect to the car and the money.” (Emphases added.) Von
Neumann, 474 U.S. at 251. Thus, the ability to post bond in Von
Neumann cannot be considered a valid basis on which to distinguish
that case.
We are aware that a few years ago, the Seventh Circuit addressed
the constitutionality of the Drug Asset Forfeiture Procedure Act (725
ILCS 150/1 et seq. (West 2004)), in Smith v. City of Chicago, 524
F.3d 834 (7th Cir. 2008). The court began by noting that Von
Neumann “seems on point.” Smith, 524 F.3d at 837. But Smith
ultimately followed Krimstock in distinguishing Von Neumann using
2
See also 735 ILCS 5/19-101 et seq. (West 2008) (“Whenever any
goods or chattels have been wrongfully distrained, or otherwise wrongfully
taken or are wrongfully detained, an action of replevin may be brought for
the recovery of such goods or chattels, by the owner or person entitled to
their possession.”). A federal district court recently found Krimstock
distinguishable on the basis that there was no indication that the claimant
would suffer the same burden of delay under a Missouri statutory scheme
by seeking a writ of replevin. Walters v. City of Hazelwood, No. 4:09-CV1473 (CET), 2010 WL 4290105, at *5 (E.D. Mo. Oct. 22, 2010).
-17-
the same flawed reasoning with respect to Rule 41(e) and the ability
to post bond for return of the vehicle. See Smith, 524 F.3d at 837. At
any rate, the Supreme Court vacated the Seventh Circuit’s opinion in
Smith, ruling that the case was moot. See Alvarez v. Smith, 558 U.S.
___, ___, 130 S. Ct. 576, 578 (2009). Thus, Smith has no precedential
value here. See 1998 Ford Explorer, 399 Ill. App. 3d at 102 (citing
Central Pines Land Co. v. United States, 274 F.3d 881, 894 n.57 (5th
Cir. 2001)).
¶ 42
¶ 43
¶ 44
VI. Innocent Ownership by Co-owner
Aside from the temporal gap that existed between the seizure of
the vehicle and the forfeiture proceeding, Krimstock seemed most
concerned about the inability of innocent owners to challenge
promptly the City’s retention of their vehicles. Krimstock cited United
States v. James Daniel Good Real Property, 510 U.S. 43, 55 (1993),
for the notion that “the Supreme Court has shown special concern for
the risk of erroneous deprivation posed to innocent owners.”
Krimstock, 306 F.3d at 56. But Good Real Property is clearly not
controlling here for a number of reasons.
In Good Real Property, the Court held that a predeprivation,
probable cause hearing was necessary, but limited its holding to the
seizure of “real property.” Good Real Property, 510 U.S. at 61.
Specifically, the seizure in that case was of a home–which the Court
found to be an interest of “historic and continuing importance,” but
which lacks mobility like a vehicle. Id. at 54, 57, 61. Good Real
Property expressed its concern for “innocent owners” only in the
context of noting that the federal statute in play contained a true
“innocent ownership” defense, which specifically provided that real
property could not be forfeited “to the extent of an interest of an
owner, by reason of any act or omission established by that owner to
have been committed or omitted without the knowledge or consent of
that owner.” Good Real Property, 510 U.S. at 55 (quoting 21 U.S.C.
§ 881(a)(7)). In other words, Congress had expressed an intent that if
any one of the possibly multiple co-owners lacked knowledge of, and
the intent to commit, a crime, forfeiture of the real property could not
be accomplished against such an innocent owner. In contrast, the
Illinois statute at issue here,3 as well as the federal statute involved in
3
The Illinois forfeiture statute requires the court to release the
vehicle to the owner if the State fails to meets its burden to show that the
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¶ 45
$8,850 and Von Neumann,4 did not mandate return of the vehicles or
cash just because one of the owners demonstrated his innocence.
Section 36-1 of the Code provides that “[a]ny *** vehicle ***
used with the knowledge and consent of the owner in the commission
of, or in the attempt to commit *** an offense *** may be seized and
delivered to the sheriff ***.” It would be a misreading of the statute,
however, to say that this is a pure innocent-owner exception. Here,
each of the vehicles seized has multiple owners. For example, the
1998 GMC is owned by George Reardon and Reardon Painting, Inc.,
which is presumably George’s painting business. The use of the term
“owner” in section 36-1 rather than “all of the owners” indicates that
the legislature intended that only one of the owners need give their
knowledge and consent to the use of the vehicle in the commission of
the offense to subject the vehicle to possible seizure and forfeiture.
Moreover, in cases like these where one of the owners is also a
defendant in the underlying criminal case, the defendant/claimant will
have had a prompt, probable cause determination in connection with
the criminal prosecution within 30 days of his arrest.5 See 725 ILCS
vehicle was used in the commission of one of the specified offenses.
However, the statute merely allows a claimant to present evidence of
innocent ownership, while at the same time providing that the court “may
order” the vehicle destroyed, delivered to the government or sold at public
auction with the proceeds paid into a general county fund, as long as the
State has met its burden. Additionally, the same section provides that the
State’s Attorney “may cause” the sheriff to remit the vehicle upon such
terms as he deems reasonable and just if there is an innocent owner, but
nothing therein requires the State’s Attorney to do so. See also 720 ILCS
5/36-4 (West 2006) (The Attorney General “may” remit the vehicle on any
terms he deems reasonable and just, or order discontinuance of the
forfeiture proceeding, if the Attorney General “finds that such forfeiture
was incurred without willful negligence or without any intention on the part
of the owner *** to violate the law”).
4
Under the federal statute, the Secretary of the Treasury, in
considering a petition for remission or mitigation, “may remit” the
forfeiture if he finds that the forfeiture “was incurred without willful
negligence or without any intention on the part of the petitioner to defraud
*** or to violate the law.” 19 U.S.C. § 1618 (Supp. III 1985).
5
It is also well settled that under federal law in effect at the time
Von Neumann was decided, the government needed only to prove probable
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¶ 46
¶ 47
5/109-3.1(b) (West 2008); People v. 1998 Ford Explorer, 399 Ill.
App. 3d 99, 104 (2010).6 Again, this scheme is in profound contrast
to the innocent-ownership defense available in Good Real Property,
which prohibited forfeiture of the property of any innocent owner
regardless of whether there was a culpable co-owner. Because the
Illinois statutory scheme does not contain the same concern for
protecting all innocent owners, the rationale expressed in Krimstock
is not valid here.
We also emphasize that a few years after Good Real Property was
decided, the Supreme Court in Bennis v. Michigan, 516 U.S. 442, 446
(1996), made it clear that an innocent-owner defense in forfeiture
cases is not required by the Constitution. In Bennis, a wife was a joint
owner of an automobile with her husband. A Michigan court ordered
the automobile forfeited after the husband was arrested for engaging
in a sexual act with a prostitute in the automobile while it was parked
on a public street. The United States Supreme Court rejected the
wife’s claim that she was entitled by due process to contest the
forfeiture by establishing that she did not know her husband would
use the vehicle to violate Michigan’s indecency law. The Court stated
that “a long and unbroken line of cases holds that an owner’s interest
in property may be forfeited by reason of the use to which the
property is put even though the owner did not know it was to be put
to such use.” Bennis, 516 U.S. at 446.
Krimstock attempted to distinguish Bennis in part by claiming in
a footnote that “[n]othing on the face of the [Michigan] provision, or
cause for instituting the forfeiture action at the trial on the forfeiture action
itself and not any sooner. See United States v. Daccarett, 6 F.3d 37, 47 (2d
Cir. 1993). Similarly, under the Illinois forfeiture statute, the State need
only prove probable cause at the forfeiture proceeding. However, as
previously mentioned, the owner of a vehicle under the Illinois scheme
does have an early opportunity to file a section 2-615 motion challenging
the adequacy of the State’s factual allegations with respect to probable
cause and may also file a motion for return of the property if the search and
seizure was not supported by probable cause. See 725 ILCS 5/114-12(a)
(West 2008); see also $1,124,905, 177 Ill. 2d at 341.
6
Additionally, a good argument can be made that “there are
legitimate reasons why the forfeiture case may need to await the outcome
of the criminal trial.” See People v. 1998 Ford Explorer, 399 Ill. App. 3d
at 104 (citing $8,850, 461 U.S. at 567).
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¶ 48
in the Bennis case, suggests that the statute permitted seizure and
retention of property prior to adjudication of its status as a nuisance.”
Krimstock, 306 F.3d at 56 n.15. But this point was irrelevant to the
Bennis holding, particularly in light of the Court’s heavy reliance
upon Van Oster v. Kansas, 272 U.S. 465 (1926), where the vehicle in
question there was seized and retained prior to any adjudication as to
its status. In that case, Van Oster purchased an automobile from a
dealer, but agreed that the dealer might retain possession for its
business. The dealer allowed an associate to drive the vehicle, and the
associate used it to illegally transport liquor. The associate was
arrested, the vehicle seized at the time of his arrest, and possession of
the vehicle thereafter remained with the sheriff. State v. Brown, 241
P. 112 (Kan. 1925). The State eventually brought a forfeiture action.
Following a bench trial, the court ordered the vehicle forfeited. A jury
later acquitted the associate of the criminal charge. But the Supreme
Court of the United States nonetheless soundly rejected Van Oster’s
innocent-owner defense, stating “certain uses of property may be
regarded so undesirable that the owner surrenders his control at his
peril.” Van Oster, 272 U.S. at 467.
In sum, we do not find Krimstock persuasive. We instead believe
that $8,850 and Von Neumann are the controlling precedent, which
leads us to the conclusion that a probable cause hearing is not
necessary. We base our conclusion upon the rationale noted above,
especially that a probable cause determination has been made by
police at the scene, the statute does not make remission to an innocent
co-owner mandatory in cases where another of the owners is culpable,
and in most cases, a prompt probable cause determination will be
made in connection with the underlying criminal prosecution. The
trial court correctly noted that the probable cause determination in the
criminal proceedings does not necessarily concern the identity of the
vehicle or whether it was used to commit the crime. But the criminal
probable cause hearing will consider the guilt of a defendant as it
pertains to the underlying offense alleged in the forfeiture complaint
in the vast majority of cases. It is not very likely that police will have
been mistaken about the identity of the vehicle, or its connection to
the crime, especially for crimes such as the DUI and DWLR offenses
involved here, which are so easily documented and where a grand
jury has ascertained probable cause for charging the
defendant/claimant with the underlying criminal offense. Again, a
claimant does have an early opportunity to contest any defects
apparent on the face of the forfeiture complaint pertaining to the
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vehicle’s connection to the crime by bringing a section 2-615 motion
to dismiss. The forfeiture proceeding itself, however, allows for the
adversary hearing where the allegations are sufficient to survive a
motion to dismiss. Accordingly, we will apply the Barker factors to
determine whether the forfeiture proceedings below satisfied any due
process rights on the part of the claimants so far.
¶ 49
¶ 50
¶ 51
VII. Application of Barker Test
With respect to the first factor, the length of the delay, we note
that “short delays–of perhaps a month or so–need less justification
than longer delays.” $8,850, 461 U.S. at 565. The second factor is
closely related to the first and concerns the reason the government
assigns to justify the delay. Id. at 565. Here, the same attorney
represented all of the claimants in each of the three consolidated
cases. The State filed its complaints for forfeiture within 22, 20 and
20 days of the seizures, respectively. Indeed the statute requires such
a prompt filing. This is because after a vehicle is seized it must
“forthwith” be delivered to the sheriff, who then has 15 days to notify
the State’s Attorney of the seizure. The State’s Attorney in turn must
then exercise his discretion “promptly” as to whether to return the
vehicle where there was no willful negligence or intention to violate
the law on the part of the owner. See 720 ILCS 5/36-2(a) (West
2006). If the State’s Attorney decides not to remit the vehicle, he is
to “forthwith” bring an action for forfeiture. See 720 ILCS 5/36-2(a)
(West 2006).
Claimants argue that the words “forthwith” and “promptly” are of
“little value in ensuring timeliness.” Claimants’ argument is not
persuasive. Just because the statute does not specify the exact number
of days for filing a complaint does not mean that the timeline is openended or that it does not comply with due process demands. The
words “forthwith” and “promptly” have recognized legal meanings
that are consistent with their commonly understood dictionary
definitions, which indicate that the action to be performed must be
done within a short time and without undue delay. See Black’s Law
Dictionary 680 (8th ed. 2004) (defines “forthwith” as “1.
Immediately; without delay. 2. Directly; promptly; within a
reasonable time under the circumstances”); Scammon v. Germania
Insurance Co., 101 Ill. 621, 626 (1881); (In Illinois, “the words
‘forthwith,’ and ‘as soon after as possible,’ *** mean within ‘a
reasonable time,’ ‘without unreasonable delay,’ and are the equivalent
-22-
¶ 52
¶ 53
of ‘due diligence.’ ”); Morgan v. Department of Financial &
Professional Regulation, 388 Ill. App. 3d 633, 673 (2009)
(“promptly” has been defined as “ ‘without appreciable delay.’ ”
(quoting Barry v. Barchi, 443 U.S. 55, 66 (1979))); Black’s Law
Dictionary 1214 (6th ed. 1990) (something done “promptly” is done
“without delay and with reasonable speed”).
Claimants further argue that the problem with the statute is that
it contains no specific deadline within which the forfeiture hearing
must take place. But this of course is not lethal to the facial
constitutionality of the statute. The statute at issue in $8,850 did not
contain a requirement for a “prompt” report of the seizure by
Customs to the United States Attorney for purposes of instituting the
forfeiture proceeding. $8,850, 461 U.S. at 558 n.3. Nor did it specify
a specific number of days within which the proceeding had to be
instituted, or a hearing thereon commenced or completed. The statute
did require that once the report was made, the United States Attorney
was to “immediately” inquire into the facts, and if it appeared
probable that a forfeiture has occurred, to “forthwith” commence the
proceedings and prosecute “without delay.” $8,850, 461 U.S. at 558
(quoting 19 U.S.C. § 1604). But it is clear from the Court’s holding
that the “without delay” language cannot mean absolutely no delays,
as the Court recognized that the filing of the proceedings could be
reasonably delayed during pendency of the criminal charges without
offending principles of due process. Id. at 567. Although it is not
necessary here, we could easily read a prosecuted “without
unreasonable delay” requirement into the Illinois forfeiture statute
given the manifest intent of the statute. See Community Consolidated
School District Number 210 v. Mini, 55 Ill. 2d 382, 386 (1973)
(collecting cases for the proposition that “if the main intent and
purpose of the legislature can be determined from a statute, words
may be modified, altered or even supplied so as to obviate any
repugnancy or inconsistency with the legislative intention” ). It is
clear from the legislature’s use of the words “forthwith” and
“promptly” in connection with the instigation of forfeiture
proceedings that it intended an expeditious prosecution and resolution
of the proceedings so far as practical.
The short time it took to initiate the proceedings in this case is in
sharp contrast to the 18-month delay in $8,850, which although
described by the Supreme Court as “substantial” was held not to be
unconstitutional. $8,850, 461 U.S. at 569-70. We also note that
-23-
¶ 54
¶ 55
¶ 56
¶ 57
claimants here filed their answers within a month and a half of the
seizures. The cases would have soon been ready to proceed to a
hearing on the merits had claimants wanted a timely resolution.
Instead, claimants filed several motions for continuances before
finally attacking the statute as facially unconstitutional. The delay in
this case is entirely attributable to claimants. Accordingly, we
conclude that the first two Barker factors strongly favor the State.
The third factor to be considered is “the claimant’s assertion of
the right to a judicial hearing.” $8,850, 461 U.S. at 568-69. In
considering this factor, the Court in $8,850 looked to what steps the
claimant could have taken on her own to accomplish an earlier return
of her vehicle–such as filing a motion under Federal Rule of Criminal
Procedure 41(e) for return of the seized property or filing a petition
for remission–and concluded that the “failure to use these remedies
can be taken as some indication that [the claimant] did not desire an
early judicial hearing.” $8,850, 461 U.S. at 569. Here, it does not
appear that claimants took any steps to obtain an early return of their
vehicles. Claimants did not seek discretionary return of their vehicles
by filing petitions for remission with the Attorney General. Nor does
it appear that they filed any motions pursuant to section 114-12(a) of
the Code of Criminal Procedure of 1963 for return of their seized
property. See 725 ILCS 5/114-12(a) (West 2006). Instead, claimant
in the lead case filed several motions for continuances before waiting
several months to file a motion to dismiss that requested the court to
strike the statute as unconstitutional.
The final factor is whether claimants have been prejudiced by the
delay. Under this prong, the main inquiry is whether the delay
hindered the claimant in presenting a defense on the merits, especially
in terms of the loss of witnesses or other evidence. $8,850, 461 U.S.
at 569. Here, claimants have not alleged any undue delay, let alone
prejudice stemming from the delay. Claimants do allege that they
have been deprived of their vehicles while the forfeiture proceedings
are pending. But something more than this must be alleged to satisfy
this prong. See 1998 Ford Explorer, 399 Ill. App. 3d at 103 (citing
Von Neumann, 474 U.S. at 251).
VIII. Facial Challenges Contrasted With As-Applied Challenges
The special concurrence would find that claimants
mischaracterized their challenge as a facial one rather than an “as
applied” challenge. The special concurrence further asserts that this
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¶ 59
court is not bound by the parties’ conception of the case, and we can
instead make our own assessment and proceed to recharacterize the
case as an “as applied” challenge. It then concludes that if we view
this case as an “as applied” challenge, then the majority’s analysis and
conclusion (which the special concurrence says really invokes an asapplied analysis) is “both appropriate and correct.” See infra ¶ 100
(Karmeier, J., specially concurring).
There are some problems with the special concurrence’s
observations, the first of which is evident from its own standard of
what constitutes a facial challenge. Quoting a law review article, the
special concurrence states the following:
“[A] ‘valid rule facial challenge’ is premised on the notion
that because of something a statute contains or fails to
include, it can never pass constitutional muster. The inclusion
of the offending provision or the omission of a provision
which constitutional principles require is an inherent and
inescapable flaw which renders the law invalid no matter
what the circumstances. Isserles, Overcoming Overbreadth,
48 Am. U. L. Rev. at 387.” See infra ¶ 87 (Karmeier, J.,
specially concurring).
But this is precisely the kind of argument claimants are making in this
case to support their facial challenge: i.e., the statute fails to include
a provision for a probable cause hearing, which is an inescapable flaw
that renders the forfeiture statute unconstitutional under every
circumstance. Claimants argue that the flaw is that the statute does
not require a probable cause hearing.
The special concurrence’s idea that this could not be a facial
challenge because claimants’ objective was to prevent their own
forfeiture proceedings from going forward (see infra ¶ 96 (Karmeier,
J., specially concurring)) is without any legal foundation. Claimants
do not ask for this court to provide a probable cause hearing and they
do not allege that the time frame for the forfeiture hearing itself may
sometimes satisfy probable cause. Instead they contend that the
statute is unconstitutional in every instance by failing to provide a
probable cause hearing at all. The remedy they seek is a declaration
that the statute is unconstitutional on its face and for return of their
vehicles. The trial court in turn declared the statute facially
unconstitutional, specifically finding that it contained a defect that
prevented its application in any circumstance. The trial court then
issued an order complying with Rule 18 that explained the same.
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¶ 60
¶ 61
¶ 62
¶ 63
Under the circumstances, we believe that it is completely appropriate
for this court to accept claimants’ characterization of the challenge as
a facial one.
The special concurrence’s willingness to recharacterize claimants’
argument under the circumstances here is also not supported by the
authority it invokes. For example, in United States v. Salerno, 481
U.S. 739 (1987), the Supreme Court considered a facial challenge to
the procedures of the federal Bail Reform Act. The Court found that
to “sustain [the statutory procedures] against such a challenge, we
need only find them ‘adequate to authorize the pretrial detention of
at least some [persons] charged with crimes’ [citation], whether or not
they might be insufficient in some particular circumstances.” Id. at
751. The Court found that the test was satisfied and the procedures
passed constitutional muster. Id. The Court did not “recharacterize”
the defendants’ argument simply because it was ultimately
unsuccessful or simply because it could have been reworked to fit
within the framework of an “as applied” challenge.
Similarly, the Supreme Court in the other two cases relied upon
by the special concurrence here—Doe v. Reed, 561 U.S. ___, ___,
130 S. Ct. 2811, 2817 (2010), and Citizens United v. Federal Election
Comm’n, 558 U.S. ___, ___, 130 S. Ct. 876, 893 (2010)—did not
recharacterize or negate a litigant’s decision to bring a facial
challenge. In Doe, the parties disagreed about whether the claim was
properly characterized as a facial or as-applied challenge. The Court
found that it had characteristics of both, but the label was not what
matters. Doe, 561 U.S. at ___, 130 S. Ct. at 2817. “The important
point is that plaintiffs’ claim and the relief that would follow ***
reach beyond the particular circumstances of these plaintiffs.” Id. at
___, 130 S. Ct. at 2817. The Court continued by stating that plaintiffs
“must therefore satisfy our standards for a facial challenge to the
extent of that reach.” Id. at ___, 130 S. Ct. at 2817.
In Citizens United, the Court found that a litigant had not waived
his right to challenge the facial validity of a federal law restricting
corporate political speech. The Court noted that the distinction
between the two kinds of challenges is both instructive and necessary
to the extent it “goes to the breadth of the remedy employed by the
court, not what must be pleaded in a complaint.” Citizens United, 130
S. Ct. at 893.
Here, we must initially assess claimants’ challenge for facial
invalidity. This was the remedy sought and the one ordered by the
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¶ 65
¶ 66
circuit court when it found that the statute was unconstitutional in all
its applications and therefore could not be enforced.
Inherent in the special concurrence’s suggestion that claimants’
challenge should not be characterized as facial is the notion that if the
challenge is in fact a facial one, the analysis must employ the
Mathews factors to determine the constitutional validity of the statute.
But any argument that Mathews need inform the decision here ignores
our in-depth discussion of $8,850 and Von Neumann. As we have
explained above, a limited reading of $8,850—one that would apply
it only to the time limits within which the forfeiture action itself must
be initiated, rather than the timing of the initial postseizure
hearing—might be plausible if the Supreme Court itself had not read
the case more expansively less than three years later in Von Neumann.
In Von Neumann, the Court wrote: “we have already noted that
the [claimant’s] right to a forfeiture proceeding meeting the Barker
test satisfies any due process right with respect to the car.” Von
Neumann, 474 U.S. at 249. Importantly, Von Neumann was claiming
that the lack of a prompt answer on his remission petition violated
due process. The remission procedure would be akin to a probable
cause hearing in our case. In $8,850, the Court held that an 18-month
delay in initiation of the proceedings did not violate due process. And
in Von Neumann it held that a “forfeiture proceeding meeting the
Barker test satisfied any due process right” (Von Neumann, 474 U.S.
at 249). In so doing, Von Neumann reversed the Ninth Circuit Court
of Appeals ruling that a remission hearing within 24 hours of the
seizure was required by due process. The Von Neumann Court then
went even one step further and found the remission-petition
procedure itself was of no consequence and was “not constitutionally
required.” Id. at 250.
In other words, Von Neumann stands for the proposition that
intermediary hearings are generally not required while awaiting the
final outcome of forfeiture proceedings. Even if $8,850 and Von
Neumann can be considered as-applied cases (Von Neumann seems
to have indicia of both), it is perfectly proper to rely upon them as we
do without the need to discuss Mathews. This is because if an 18month delay does not violate due process as applied and the forfeiture
proceeding itself, without more, satisfies due process in terms of the
kind of hearing required, then the failure to have a more prompt
hearing while awaiting the outcome of the forfeiture proceeding
(which would routinely take between three and six months under the
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¶ 68
Illinois procedure start to finish) could not possibly violate due
process in terms of a facial challenge. Thus, the black letter law set
forth in Von Neumann essentially controls the outcome here.
In the preceding section of this decision we do discuss the
individual Barker facts in relation to the specific cases here to
conclude that no unreasonable delay occurred in the proceedings
below. However, we had already concluded by then that $8,850 and
Von Neumann were the controlling precedent, which led to our
holding that the statute was not facially unconstitutional and a
probable cause hearing was not necessary. Application of the Barker
factors to the specific proceedings below, however, was briefed and
argued by the parties. We find it completely appropriate to consider
those factors to determine the additional matter of whether these
particular claimants were denied a meaningful hearing at a
meaningful time under the circumstances of this case.
Parenthetically, we note that Mathews calls for consideration of
the private interest affected, the risk of an erroneous deprivation and
probable value of additional safeguards, and the government’s
interest. See Mathews, 424 U.S. at 335. Neither Von Neumann nor
$8,850 employed the Mathews factors, but instead looked to the
Barker speedy-trial test. Our decision finds Von Neumann and $8,850
determinative of the outcome here for the reasons noted above.
However, if this court were to apply Mathews, we would find that the
balance of the factors weighs in favor of the State. With respect to the
risk of an erroneous deprivation found critical in Krimstock, we
would find the risk is minimal in the kinds of cases involved here.
The seizures in the cases before us occurred simultaneously with the
aggravated DUI and DWLR arrests for which the police must have
probable cause. This probable cause determination is made by trained
police officers without a personal economic stake in the matter. Their
evaluations are not the type prone to error. Objective tests confirm the
presence of alcohol for purposes of DUI, and officers assess DWLR
by a simple, objective review of the documentary evidence. As the
court in Grinberg v. Safir, 694 N.Y.S.2d 316, 326 (1999), observed:
“[W]hen police have probable cause to arrest a drunk driver,
the defendant’s car is undeniably the instrumentality of the
charged crime. The nexus between the crime and the property,
and thus the justification for the forfeiture is obvious at arrest.
There has been no showing than any additional or substitute
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¶ 70
¶ 71
safeguard would lessen the risk of an erroneous deprivation
of petitioner’s property.”
See also Florida v. White, 526 U.S. 559, 565-66 (1999) (no warrant
required for the seizure in a public place of a vehicle that police have
probable cause to believe is itself contraband). We would also
conclude that the City’s interest in deterring drunk driving and
safeguarding its ability to seek forfeiture by retaining possession of
the vehicle outweighs the private interest affected.
As a final matter, we note that we have allowed the State’s motion
to cite as additional authority a recent amendment to the vehicleforfeiture statute. The State correctly points out that the statute has
been amended, effective January 1, 2012, to add an additional section
that will allow for a timely probable cause hearing in vehicleforfeiture proceedings going forward. Specifically, Public Act 97-544
adds section 36-1.5 to the Criminal Code of 1961 and states in
relevant part that “[w]ithin 14 days of the seizure, the State shall seek
a preliminary determination from the circuit court as to whether there
is probable cause that the property may be subject to forfeiture.” Pub.
Act 97-544, § 5 (eff. Jan. 1, 2012) (adding 720 ILCS 5/36-1.5). The
vehicles in the present case were obviously seized prior to the
statute’s future effective date of January 1, 2012. The parties do not
argue the applicability of the statute to the instant proceeding. We
will therefore not address it here other than to note that to the extent
the amendment can be considered a procedural (rather than a
substantive) change, it will be applicable to the proceedings on
remand, but only “so far as practical” and only if it does not affect a
vested right. See 5 ILCS 70/4 (West 2010); see also People v. Ziobro,
242 Ill. 2d 34, 46 (2011) (if the new rule were to guarantee the
dismissal of the State’s action, it would affect a vested right and
therefore could not be applied retroactively).
CONCLUSION
We conclude that the statute is not facially unconstitutional and
claimants were not denied due process of law. A forfeiture proceeding
meeting the Barker test satisfies claimants’ due process rights with
respect to the vehicles in question without the need for an earlier
hearing. Additionally, the balance of the Barker factors weighs
heavily in favor of the State and indicates that there was no
unreasonable delay in these particular proceedings. Accordingly, the
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judgment of the circuit court of Du Page County is reversed and the
cause remanded for further proceedings consistent with this opinion.
¶ 72
¶ 73
¶ 74
¶ 75
¶ 76
Reversed and remanded.
JUSTICE KARMEIER, specially concurring:
I agree with the majority that claimants’ due process challenge to
the vehicle-forfeiture provisions of the Criminal Code of 1961 (the
Criminal Code) (720 ILCS 5/36-1 through 36-4 (West 2006)) should
have been rejected by the circuit court. I therefore concur in its
judgment reversing the circuit court’s judgment and remanding the
cause for further proceedings. I write separately because I disagree
with the analysis employed by the majority to reach that conclusion.
The circuit court considered the constitutionality of the vehicleforfeiture provisions of the Criminal Code in the context of motions
to dismiss filed under section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 2008)) by various claimants who were
facing forfeiture of their vehicles. The circuit court concluded that the
forfeiture proceedings against each claimant should be dismissed with
prejudice because the statutory scheme under which forfeiture was
being sought failed to include a requirement that a postseizure
probable cause hearing be conducted to test the validity of the State’s
detention of a seized vehicle prior to the final hearing on the merits
of the State’s forfeiture claim. In the circuit court’s view, such
probable cause proceedings are required by due process under the
Illinois and United States Constitutions, and the procedural
safeguards which the vehicle-forfeiture provisions of the Criminal
Code do contain are not sufficient to compensate for the absence of
a postseizure, pretrial probable cause hearing. The circuit court
therefore concluded that the challenged provisions are
unconstitutional on their face.
The cornerstone of the circuit court’s analysis was the United
States Supreme Court’s decision in Mathews v. Eldridge, 424 U.S.
319 (1976). Mathews involved a procedural due process challenge to
administrative procedures prescribed by the Secretary of Health,
Education, and Welfare for terminating disability benefits under the
Social Security Act. As the circuit court in this case correctly
recognized, Mathews identified the basic factors which must normally
be considered by a court when evaluating whether a procedural
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¶ 78
¶ 79
scheme adopted by the government comports with due process: (1)
the private interest that will be affected by the official action; (2) the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Building on Mathews, the circuit court next looked to Krimstock
v. Kelly, 306 F.3d 40 (2d Cir. 2002), a case similar to the one before
us. Krimstock involved a procedural due process challenge to
provisions of the New York City administrative code under which the
City was allowed to seize a motor vehicle following an arrest of the
driver for the state-law charge of driving while intoxicated or for any
other crime for which the vehicle could serve as an instrumentality,
and then to bring a forfeiture action to permit it to retain the vehicle.
Applying the three Mathews factors, the court in Krimstock concluded
that the administrative code provisions at issue in the case did not
pass constitutional muster because they failed to include provision for
a prompt postseizure, prejudgment hearing before a neutral judicial
or administrative officer to determine whether the City was likely to
succeed on the merits of the forfeiture action and whether means
short of retention of the vehicle could satisfy the City’s need to
preserve it from destruction or sale during the pendency of
proceedings. Id. at 67.
Persuaded by the approach taken in Krimstock, the circuit court
in this case reasoned that the vehicle-forfeiture provisions of Illinois’
Criminal Code were facially invalid and unenforceable under the due
process clauses of the Illinois Constitution and the fifth and
fourteenth amendments of the United States Constitution because
they did not provide any mechanism for a prompt, probable cause
hearing after a vehicle was seized where claimants could test the
State’s right to retain their vehicles while they awaited trial on the
merits of the forfeiture action and where the State would have the
burden of demonstrating “a non-criminally charged owner’s ‘guilt’ to
justify holding the vehicle in the first place.” The circuit court
continued to adhere to this approach when, in a detailed written order,
it denied the State’s motion for reconsideration.
The State filed its notice of appeal on March 30, 2010. The
following day, the Illinois Appellate Court, Second District, filed an
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¶ 80
opinion in People v. 1998 Ford Explorer, 399 Ill. App. 3d 99 (2010).
That opinion addressed three consolidated cases, all involving the
same vehicle-forfeiture provisions of the Criminal Code at issue in
this case. Unlike the present case, however, 1998 Ford Explorer did
not purport to address the facial validity of the relevant statutes. It
considered the constitutionality of the vehicle-forfeiture provisions as
applied to the particular claimants whose vehicles had been seized.
Following decisions by the United States Supreme Court in United
States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in
United States Currency, 461 U.S. 555 (1983), and United States v.
Von Neumann, 474 U.S. 242 (1986), both of which also involved “as
applied” challenges to forfeiture proceedings undertaken by the
government, the appellate court concluded that the forfeiture
proceedings challenged in the three consolidated cases before it
comported with due process.7
Shortly after 1998 Ford Explorer was decided, the Illinois
Appellate Court, First District, considered another case involving the
seizure and subsequent forfeiture of a vehicle pursuant to the same
vehicle-forfeiture provisions of the Criminal Code involved here. In
that case, People v. 1998 Lexus GS 300, 402 Ill. App. 3d 462 (2010),
the claimant raised two basic challenges to the forfeiture: (1) that the
circuit court’s judgment was against the manifest weight of the
evidence, and (2) that the forfeiture violated the excess fines clause
of the eighth amendment to the United States Constitution (U.S.
Const., amend. VIII). After considering and rejecting both challenges,
the court observed that claimant had also attacked the statutory
forfeiture provisions on due process grounds. Because the due process
challenge was raised by claimant for the first time in his reply brief,
however, the court deemed that argument waived. In any case, it
7
United States v. Eight Thousand Eight Hundred & Fifty Dollars
($8,850) in United States Currency, 461 U.S. 555 (1983), and United States
v. Von Neumann, 474 U.S. 242 (1986), both followed the analytical rubric
formulated by the United States Supreme Court in Barker v. Wingo, 407
U.S. 514 (1972), which set forth a four-part test to be used as a guide “in
balancing the interests of the claimant and the Government to assess
whether the basic due process requirement of fairness has been satisfied in
a particular case.” (Emphasis added.) United States v. Eight Thousand
Eight Hundred & Fifty Dollars ($8,850) in United States Currency, 461
U.S. at 565. Whether constitutional requirements have been met in a
particular case is, of course, a quintessential “as applied” inquiry.
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¶ 81
¶ 82
¶ 83
noted that a similar argument had recently been addressed and
rejected in People v. 1998 Ford Explorer, 399 Ill. App. 3d 99 (2010),
which I have just outlined, and $8,850, 461 U.S. 555, the “as applied”
case on which 1998 Ford was based. Lexus GS 300, 402 Ill. App. 3d
at 467.
As the majority points out, Lexus GS 300 was followed by People
v. 1996 Honda Accord, 404 Ill. App. 3d 174, 175 (2010), another
Second District case. In that case, claimants sought dismissal of a
forfeiture complaint initiated by the State pursuant to the Drug Asset
Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 2008)) and
the Cannabis Control Act (720 ILCS 550/12 (West 2008)). The
circuit court granted the dismissal based on a decision by the United
States Court of Appeals for the Seventh Circuit in Smith v. City of
Chicago, 524 F.3d 834 (7th Cir. 2008), which applied the test set
forth in Mathews v. Eldridge, 424 U.S. 319 (1976), and Krimstock v.
Kelly, 306 F.3d 40 (2d Cir. 2002), rather than the standards applied
in Barker v. Wingo, 407 U.S. 514 (1972), and $8,850, 461 U.S. 555,
to conclude that the provisions of the Drug Asset Forfeiture
Procedure Act, as written, failed to comport with the requirements of
procedural due process. Smith, 524 F.3d at 836-38.
By the time the circuit court’s judgment reached the appellate
court, Smith had been vacated as moot by the United States Supreme
Court in Alvarez v. Smith, 558 U.S. ___, 130 S. Ct. 576 (2009), after
the underlying cases settled. The appellate concluded that Smith did
not provide the proper test for evaluating the claimants’ challenge and
that the circuit court’s dismissal of the forfeiture complaint based on
Smith must therefore be vacated. It then remanded the case to the
circuit court for consideration of whether the forfeiture proceedings
in this particular case took too long and therefore violated due process
under the standards set forth in 1998 Ford Explorer, 399 Ill. App. 3d
99, and the cases on which it was based, namely, Barker v. Wingo,
407 U.S. 514, $8,850, 461 U.S. 555, and Von Neumann, 474 U.S.
242. 1996 Honda Accord, 404 Ill. App. 3d at 175.
In reversing the judgment of the circuit court in this case, my
colleagues adopt the approach taken in 1998 Ford Explorer, 399 Ill.
App. 3d 99, and followed in Lexus GS 300, 402 Ill. App. 3d 462, and
1996 Honda Accord, 404 Ill. App. 3d 174, which rested on the United
States Supreme Court’s decisions in Barker v. Wingo, 407 U.S. 514,
$8,850, 461 U.S. 555, and Von Neumann, 474 U.S. 242. The problem
with the majority’s approach is that 1998 Ford Explorer, 399 Ill. App.
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¶ 84
¶ 85
¶ 86
3d 99, and the United States Supreme Court decisions on which it is
based all involved “as applied” constitutional challenges. The
judgment of the circuit court under consideration here purported to
declare the statutory scheme unconstitutional on its face.
My colleagues are not the first to blur the distinction between “as
applied” and facial challenges. While the two doctrines are simple
enough to state, their application has been vexing. When and how
litigants should be permitted to challenge statutes as facially invalid
rather than merely invalid “as applied” is a hotly debated topic both
within the United States Supreme Court and among legal scholars.
Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99
Calif. L. Rev. 915, 917 (2011); Richard H. Fallon, Jr., As-Applied and
Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321
(2000); see Michael C. Dorf, Facial Challenges to State and Federal
Statutes, 46 Stan. L. Rev. 235 (1994); Alex Kreit, Making Sense of
Facial and As-Applied Challenges, 18 Wm. & Mary Bill Rts. J. 657
(2010).
The difficulty may lie in the doctrine itself. One commentator has
charged that “categorizing constitutional cases into ‘facial’ and ‘asapplied’ challenges, and relying on these categories to shape doctrine
and inform case outcomes, is an inherently flawed and fundamentally
incoherent undertaking.” Kreit, supra, at 659. Another has lamented
that the “distinction between as-applied and facial challenges may
confuse more than it illuminates” and argued that the distinction
between facial and as-applied challenges should be eliminated
altogether. Dorf, supra, at 294. But if the doctrine is to be abandoned,
that determination should be made by the United States Supreme
Court, which created it. For now, the Court continues to observe the
doctrine, and because we follow its precedent when construing the
due process clause of our own constitution, it is appropriate that we
continue to observe the doctrine as well.
Fortunately, the analytical problems may not be as daunting as the
doctrine’s detractors may believe. A persuasive argument has been
made that in situations not involving overbreadth, a facial challenge
is properly understood to be one where a litigant asserts that a
constitutional defect inheres in the terms of the statute itself,
independent of the statute’s application to particular cases. Marc E.
Isserles, Overcoming Overbreadth: Facial Challenges and the Valid
Rule Requirement, 48 Am. U. L. Rev. 359, 363-64 (1998). Such
challenges have been termed “valid rule” facial challenges in order to
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¶ 87
¶ 88
¶ 89
¶ 90
distinguish them from the familiar “overbreadth” facial challenges
common in first amendment cases.
Unlike an overbreadth challenge, which predicates invalidity on
some aggregate number of potentially unconstitutional applications
of an otherwise valid rule, a “valid rule” facial challenge is premised
on the notion that because of something a statute contains or fails to
include, it can never pass constitutional muster. The inclusion of an
offending provision or the omission of a provision which
constitutional principles require is an inherent and inescapable flaw
which renders the law invalid no matter what the circumstances.
Isserles, supra, at 387.
When the doctrine is viewed in this way, it becomes evident that
when the United States Supreme Court spoke in United States v.
Salerno, 481 U.S. 739 (1987), of a statute being unconstitutional on
its face when no set of circumstances exists under which it would be
valid, it was not prescribing an application-specific method of
determining the law’s validity, an approach which would be entirely
appropriate in an overbreadth challenge. Rather, it was explaining
why the statute was invalidated in the first place, namely, because
some underlying constitutional doctrine rendered the statutory terms
incapable of any constitutional applications. Isserles, supra, at 401.
This is certainly how the circuit court in this case understood
facial challenges to work. In considering the claimants’ procedural
due process challenges, it focused on constitutional deficiencies
inherent in the statutory scheme itself, as the United States Supreme
Court had in Mathews v. Eldridge, 424 U.S. 319, and the United
States Court of Appeals, Second Circuit, had in Krimstock v. Kelly,
306 F.3d 40. The particular circumstances of the specific claimants
whose vehicles are subject to forfeiture in these proceedings played
no role in the court’s determination that the challenged statutory
provisions did not comport with procedural due process requirements.
In seeking review of the circuit court’s judgment, the State urged
this court to conceptualize the case in a fundamentally different way.
It asserted that the United States Supreme Court decisions in Barker
v. Wingo, 407 U.S. 514, $8,850, 461 U.S. 555, and Von Neumann,
474 U.S. 242, provided the more appropriate analytical framework.
Consistent with the “as applied” nature of those cases, the State’s
argument went beyond the provisions of the statutory scheme itself
and also took into account the particular circumstances of the
claimants in this case. It asked us to consider such things as the
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¶ 91
¶ 92
¶ 93
recourse which these claimants had available to them, the actual
delays these claimants faced, whether these litigants failed to
vigorously assert their rights, and what, if any, prejudice they suffered
as the result of delays in the forfeiture proceedings.
As reflected earlier in this special concurrence, my colleagues
were persuaded by the State’s arguments and adopted this line of
reasoning in reversing the circuit court’s judgment. Their analysis is
clearly not limited to consideration of whether there are flaws
inherent in the statutory scheme. Rather, they expressly consider how
the statute operated in these particular cases (supra ¶¶ 49-55),
concluding that “claimants’ due process rights were satisfied “with
respect to the vehicles in question” because, under the Barker v.
Wingo test (which, as I have pointed out, is applicable to as-applied
due process challenges), there was no need for an earlier hearing and
“the balance of the Barker factors weighs heavily in favor of the State
and indicates that there was no unreasonable delay in these particular
proceedings.” (Emphasis added.) Supra ¶ 71.
I do not take issue with the majority’s conclusion in that regard
and agree that under the line of authority to which Barker belongs,
claimants suffered no infringement of their due process rights as a
result of the actual procedures followed in the specific circumstances
of the particular cases which gave rise to this appeal. The problem is
that while that conclusion would resolve the issue of whether Illinois’
vehicle-forfeiture provisions were unconstitutional as applied to
claimants, that is not the question presented by the circuit court’s
judgment. The question we have been asked to resolve in this
litigation is whether the vehicle-forfeiture provisions themselves are
inherently flawed because they fail to include procedural protections
which due process demands. That inquiry falls squarely within the
“valid rule” facial challenge paradigm.
While acknowledging that we are asked to resolve a facial
challenge to the statutory scheme, the majority nevertheless insists
that it is “completely appropriate” to assess “whether [the] particular
claimants were denied a meaningful hearing at a meaningful time
under the circumstances of this case.” Supra ¶ 67. With all due
respect, the majority is mistaken. My colleagues’ reliance on specific
applications of a statute to assess its validity might make sense if this
case involved an overbreadth challenge, but it is entirely at odds with
the structure of a “valid rule” facial challenge, which is the type of
challenge advanced here. As one commentator has explained,
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¶ 94
¶ 95
“Application-specific constitutional scrutiny is the
characteristic feature of overbreadth methodology. But a valid
rule challenge must be resolved through a different method
primarily because a valid rule challenge seeks to disprove
precisely that which the overbreadth challenge necessarily
assumes: that the rule as written and construed is facially
valid under the relevant constitutional standards. Salerno’s
facial challenge methodology, as employed by the Court in
Salerno, directs a court faced with a valid rule facial
challenge to evaluate the challenged statute against the
relevant constitutional doctrine, independent of the statute’s
application to particular cases. A court entertaining a facial
challenge under Salerno is not concerned with the details of
particular statutory applications, and instead focuses on the
content of the statutory terms to assess their consistency with
constitutional requirements. In other words, a valid rule facial
challenge is a challenge that ‘puts into issue an explicit rule
of law, as formulated by the legislature or the court, and
involves the facts only insofar as it is necessary to establish
that the rule served as a basis of decision.’ Again, ‘no set of
circumstances’ is a descriptive claim about a facially invalid
rule of law, and not an application-by-application method of
proof.” Isserles, supra, at 403-04.
By failing to recognize this distinction, the majority’s disposition
creates unnecessary confusion in the law.
The majority’s approach would be defensible if it were of the
opinion that claimants’ argument is, in reality, more in the nature of
an “as applied” challenge. While the majority questions the propriety
of recharacterizing the claimants’ argument, there is support under the
law and in the record for doing so.
The United States Supreme Court has accepted the view that what
ultimately defines the nature of the challenge, i.e., whether it is facial
or as applied, is the remedy requested by the party challenging the
law. Catherine Gage O’Grady, The Role of Speculation in Facial
Challenges, 53 Ariz. L. Rev. 867, 872 (2011). In an “as applied”
challenge, a plaintiff protests against how an enactment was applied
in the particular context in which the plaintiff acted or proposed to
act, and seeks to enjoin the objectionable enforcement of the
enactment against himself, while a successful facial attack voids the
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¶ 96
¶ 97
¶ 98
¶ 99
enactment in its entirety and in all applications. Napleton v. Village
of Hinsdale, 229 Ill. 2d 296, 306 (2008).
In this case, claimants’ real objective is to prevent these particular
forfeiture proceedings from going forward and to secure return of the
vehicles. They have no particular interest in challenging the law
except as it pertains to their particular cases, the circumstances of
which they have invoked in support of their arguments. This is
reflected in the initial challenge to the forfeiture proceedings filed in
case No. 07-MR-1126, the oldest of the proceedings before us. It
prayed simply for an order “requiring the petition to rescind be set for
hearing as the statutory scheme violates due process,” and that “the
vehicles *** be returned to the complainant.”
During the October 15, 2008, hearing on the motion to dismiss the
proceedings, the circuit court opined that this request was “a little
short of saying the Court should hereby declare whatever section of
the Illinois motor vehicle statute to be unconstitutional.” At the circuit
court’s urging, the pleadings were subsequently modified and the
arguments refined, but at a hearing held the following February, the
circuit court continued to express uncertainty about the nature of the
challenge and whether claimants’ motion might be better viewed as
posing an as-applied rather than a facial challenge to the law. That the
claimants’ attack on the statute was in the nature of a facial challenge
is therefore not as clear as the majority would have it.
I note, moreover, that to the extent the parties themselves
characterized this case as involving a facial rather than an “as
applied” challenge, the label is not what matters. See Doe v. Reed,
561 U.S.___, ___, 130 S. Ct. 2811, 2817 (2010). When faced with the
question of whether a statute is unconstitutional on its face or merely
as applied, we are not automatically bound by the parties’ conception
of the nature of a statute’s constitutional infirmity. See Citizens
United v. Federal Election Comm’n, 558 U.S.___, ___, 130 S. Ct.
876, 893 (2010) (“the distinction between facial and as-applied
challenges is not so well defined that it has some automatic effect or
that it must always control the pleadings and disposition in every case
involving a constitutional challenge,” and the “parties cannot enter
into a stipulation that prevents the Court from considering certain
remedies if those remedies are necessary to resolve a claim that has
been preserved”). We may make our own assessment.
Jurisprudential considerations also weigh in favor of approaching
claimants’ efforts to recover the vehicles as presenting an “as-38-
¶ 100
¶ 101
¶ 102
applied” challenge to the pertinent statutes. The United States
Supreme Court has pointed out that “although the occasional case
requires us to entertain a facial challenge in order to vindicate a
party’s right not to be bound by an unconstitutional statute [citation],
we neither want nor need to provide relief to nonparties when a
narrower remedy will fully protect the litigants.” United States v.
National Treasury Employees Union, 513 U.S. 454, 477-78 (1995).
When confronting a statute’s constitutional flaw, the Court attempts
to limit the solution to the problem, preferring to enjoin only the
statute’s unconstitutional applications while leaving the others in
force, or to sever its problematic portions while leaving the remainder
intact. That is motivated by various considerations, including the
recognition that because a finding of unconstitutionality frustrates the
intent of the elected representatives of the people, courts should strive
to avoid nullifying more of a legislature’s work than is necessary.
Ayotte v. Planned Parenthood of Northern New England, 546 U.S.
320, 329 (2006).
We therefore have the authority, perhaps even the obligation, to
view the litigation here as presenting an “as-applied” challenge. If we
take that approach, the solution proffered by the majority, a solution
which ultimately employs an “as applied” analysis and relies on
precedent involving other “as applied” cases, is both appropriate and
correct.
Well, almost correct. In the course of developing its argument, the
majority perpetuates a misconception expressed by the circuit court.
It is that evaluation of a statute’s constitutionality is somehow an all
or nothing proposition, i.e., that if a statutory mechanism is alleged
to lack some element which the Constitution requires, we are
powerless to formulate a remedy to cure the omission and must,
instead, reject the statutory scheme in full as void from its inception.
Supra ¶ 13.
In taking this position, the majority ignores a large and established
body of case law governing constitutional adjudication. Contrary to
the majority’s view, courts have considerable flexibility when
confronted with a statute’s constitutional flaws. See, e.g., United
States v. Booker, 543 U.S. 220 (2005); David H. Gans, Severability
and Judicial Lawmaking, 76 Geo.Wash. L. Rev. 639 (2008).
Generally speaking, a court should endeavor to limit the solution to
the problem, “prefer[ring] *** to enjoin only the statute’s
unconstitutional applications of a statute while leaving other
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¶ 103
applications in force [citation], or to sever its problematic portions
while leaving the remainder intact [citation].” Ayotte, 546 U.S. at 329.
Accordingly, as noted earlier in this separate opinion, a court will
strive to avoid nullifying more of a legislature’s work than is
necessary. The “normal rule” is that “partial, rather than facial,
invalidation is the required course,” such that a “statute may ... be
declared invalid to the extent that it reaches too far, but otherwise left
intact.” (Internal quotation marks omitted.) Id. We also restrain
ourselves from “rewrit[ing] state law to conform it to constitutional
requirements” even as we strive to salvage it. (Internal quotation
marks omitted.) Id. It does not follow, however, that we may not
confine the state to action within constitutional limits. See Richards
v. Lavelle, 620 F.2d 144, 149 (7th Cir. 1980). “After finding an
application or portion of a statute unconstitutional, we must next ask:
Would the legislature have preferred what is left of its statute to no
statute at all?” Ayotte, 546 U.S. at 330. If the answer to that question
is yes, a court may craft a judicial remedy so long as it is faithful to
the legislature’s intent. Id. at 331.
A recent example of that may be found in the precedent of our
own court. In In re Adoption of L.T.M., 214 Ill. 2d 60 (2005), an
indigent father in a proceeding governed by the Adoption Act (750
ILCS 50/0.01 et seq. (West 2008)) complained that he was denied
equal protection of the law because the Act did not authorize
appointment of counsel to assist him under circumstances when
appointed counsel would have been available to a similarly situated
parent in a proceeding governed by the Juvenile Court Act of 1987
(705 ILCS 405/1-1 et seq. (West 2008)). Concluding that the
disparate treatment served no compelling state interest, our court
found the father’s constitutional challenge to be meritorious and that
the Adoption Act’s failure to provide him with appointed counsel
violated principles of equal protection. We then proceeded to the
question of remedy. We noted that we could have eliminated the
infirmity by removing the availability of appointed counsel for
indigents under the Juvenile Court Act, but concluded that such an
option would have the effect of nullifying the considered judgment of
the legislature. We therefore held that the better course was to require
the state to begin providing appointed counsel to indigent parents
who face the loss of parental rights in proceedings under the
Adoption Act. And so that is what we ordered, notwithstanding the
fact that the Adoption Act itself contained no authority for such
appointments. In re Adoption of L.T.M., 214 Ill. 2d at 77-78.
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¶ 104
¶ 105
¶ 106
That courts may fashion appropriate measures to remedy
omissions in statutory procedures which would otherwise render the
statutory scheme unconstitutional was not disputed by the State. To
the contrary, and as the majority itself correctly points out, the State
invoked the availability of alternate remedies in support of its
contention that a motion to dismiss under section 2-619(a)(9) of the
Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)) was
not a proper vehicle for claimants to raise a challenge to the
constitutionality of the forfeiture provisions at issue in this case.
My colleagues were entirely right to conclude that claimants’
decision to rely on section 2-619(a)(9) did not doom their challenge
to the constitutionality of the law. In order to reach that conclusion,
however, the majority did not need to address the scope of a court’s
remedial authority. Our court has considered constitutional challenges
to state statutes where those challenges have been brought under
section 2-619(a)(9) as well as under section 2-615 of the Code of
Civil Procedure (735 ILCS 5/2-615 (West 2008)). See People ex rel.
Ryan v. World Church of the Creator, 198 Ill. 2d 115, 116-17 (2001)
(facial validity of Solicitation for Charity Act (225 ILCS 460/0.01
through 23 (West 1998)) raised in a section 2-615 motion to dismiss
a complaint filed under the Act); Mulay v. Mulay, 225 Ill. 2d 601, 604
(2007) (constitutionality of grandparents visitation statute raised by
mother in a section 2-619 motion to dismiss a visitation petition filed
by the grandparents of the subject child pursuant to the statute). In so
doing, we have not clearly delineated when and under what
circumstances each of these procedural mechanisms may be
employed to raise a constitutional challenge to a statute. Perhaps we
can be faulted for that, but fortunately for litigants, invoking section
2-619 where section 2-615 should have been employed (or vice versa)
is far from fatal. As long as the technical designation has not resulted
in prejudice to the opposing party, the court will look beyond how the
motion is labeled and consider it on the merits. Borowiec v. Gateway
2000, Inc., 209 Ill. 2d 376, 383 (2004); Wallace v. Smyth, 203 Ill. 2d
441, 447 (2002). There was no prejudice here. Accordingly, even if
one believes claimants should have premised their motion on section
2-615 rather than section 2-619, the misdesignation would not, in
itself, provide a sufficient basis for resolving the motion or this
appeal.
Although they persist in the view that the case law dealing with
“as applied” should guide their evaluation of the facial validity of
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¶ 107
¶ 108
¶ 109
Illinois’ vehicle-forfeiture provisions, my colleagues ultimately
decide that the standards set forth in Mathews, 424 U.S. 319, might
be worth a look after all. They insert this discussion as a
“parenthetical” (supra ¶ 68) when, as I have pointed out, Mathews
should have been the cornerstone of their analysis if they were intent
on viewing the case under the rubric applicable to facial challenges.
But it is some consolation that the majority is at least willing to
consider whether the result it reaches in the case would be any
different under the standards articulated by the United States Supreme
Court in Mathews.
Having said that, I must also add that I am not as confident as my
colleagues that the Illinois law would withstand a facial challenge
under the Mathews standards. Remember, after all, that we are not
writing on an entirely clean slate here. The United States Court of
Appeals for the Seventh Circuit evaluated the corresponding
provisions of our Drug Asset Forfeiture Procedure Act (725 ILCS
150/1 et seq. (West 2004)) in accordance with Mathews and, in a
unanimous opinion, found them to be constitutionally deficient. See
Smith v. City of Chicago, 524 F.3d 834 (7th Cir. 2008).
It is true that the Seventh Circuit’s decision was subsequently
vacated as moot after the parties settled while the case was pending
on review in the United States Supreme Court. Alvarez v. Smith, 558
U.S. ___, ___, 130 S. Ct. 576, 578 (2009). And it may be true that the
Seventh Circuit’s opinion in the case is therefore not binding
precedent so far as the federal courts are concerned. But a decision by
a lower federal court on a question arising under the federal
constitution is never binding on us, except to the extent that it may
become the law of the case. People v. Kokoraleis, 132 Ill. 2d 235, 293
(1989); People v. Williams, 161 Ill. 2d 1, 59 (1994). We look to such
decisions only to the extent they are persuasive, and it is hard to see
how the persuasive value of the Seventh Circuit’s reasoning in Smith
was diminished simply because the parties subsequently agreed to
settle rather than pursue further review.
After the panel issued its decision in Smith, it circulated the
opinion to the full court pursuant to a Seventh Circuit rule in order to
determine whether it should be reheard en banc. No member of the
court voted for en banc rehearing. Smith, 524 F.3d at 839. While that
does not mean that the Seventh Circuit would reach the same
conclusion on the merits were the matter presented to it again, it
certainly gives one pause.
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¶ 110
¶ 111
One thing I doubt the Seventh Circuit would agree with if it were
presented with another constitutional challenge to our current
forfeiture laws is the majority’s assertion that we need not be
concerned about the risk of an erroneous deprivation because the
seizures in cases like the ones before us occur simultaneously with
arrests for aggravated DUI and DWLR “for which the police must
have probable cause.” Supra ¶ 68. What the Seventh Circuit
understood, but the majority seems to overlook, is that purpose of a
prompt postseizure hearing in this context is not simply to determine
whether there was a sufficient basis for the initial decision to seize the
vehicle, but to consider the broader question of whether it is
appropriate for the vehicle to continue to be held until the forfeiture
claim is heard and decided. The circumstances surrounding the arrest
of the driver and the warrantless seizure of the vehicle by the police
are only part of the inquiry. See Smith, 524 F.3d at 838-39.
In any case, the question of whether the vehicle-forfeiture
provisions challenged here are facially invalid for failing to require a
prompt, postseizure probable cause hearing has become a moot point.
Earlier this year, the General Assembly passed legislation which
amended the relevant provisions of the Criminal Code of 1961 to
require the type of postseizure hearing demanded in this case and
authorizing the court to fashion appropriate relief, pending the
forfeiture hearing, “after taking into account the respective interests
of all known claimants.” These provisions take effect January 1,
2012. Our mandate will not issue before that date, meaning that the
new provisions will be in effect when this cause is remanded to the
circuit court for further proceedings. Though they do not come right
out and say it, the majority appears to acknowledge that claimants
will be able to avail themselves of those new provisions on remand.
This court’s pronouncements on the facial validity of the
preamendment version of the law will therefore have no effect on
what happens next in this litigation or in future vehicle-forfeiture
proceedings under the Criminal Code. Legislative action has now
rendered the majority’s views on the facial validity of the law
immaterial and unnecessary. See, e.g., Pope v. Illinois, 481 U.S. 497,
501-02 (1987) (Court refrained from ruling on facial validity of
statute where intervening legislative action eliminated challenged
provision and the defendant’s posture in the case would be the same
even if the Court agreed that the repealed statute was unconstitutional
on its face). Under these circumstances, the most we can or should
say is that the pertinent vehicle-forfeiture procedures, as applied to
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claimants thus far in these proceedings, did not violate claimants’
procedural due process rights.
¶ 112
¶ 113
¶ 114
¶ 115
JUSTICE FREEMAN, dissenting:
I respectfully dissent. As the court’s opinion explains, the State
has cited, as additional authority, the General Assembly’s enactment
of Public Act 97-544, which amends the Illinois Vehicle Forfeiture
Act to provide for a preliminary review of the seizure. Although the
new provisions take effect on January 1, 2012, it is unclear what
effect the amendments are to have on seizures, such as those at issue
here, that predate January 1, 2012. Neither party has provided this
court with any argument as to that question, and the court is willing
to resolve the case without that input. I disagree with this decision
and, therefore, do not join in today’s opinion.
This court has held that it will consider “ ‘a constitutional
question only where essential to the disposition of a case, i.e., where
the case cannot be determined on other grounds.’ ” Beahringer v.
Page, 204 Ill. 2d 363, 370 (2003) (quoting Bonaguro v. County
Officers Electoral Board, 158 Ill. 2d 391, 396 (1994)). Nevertheless,
both the court’s opinion and the specially concurring opinion spend
a great deal of time explaining why the Illinois Vehicle Forfeiture Act
is constitutional, either facially or as applied in these cases. But if that
issue is indeed moot, as Justice Karmeier suggests and the court
implies, then it should not be addressed. It is for this reason that I
believe further briefing to be necessary.
JUSTICE BURKE joins in this dissent.
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