People v. One 1998 GMC ( 2011 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. One 1998 GMC, 2011 IL 110236Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ONE 1998
Court: GMC et al., Appellees.
Docket No. 110236
Filed December 30, 2011
Held Statutory forfeiture procedures against multiple owners of vehicles
(Note: This syllabus involved in DUI arrests provided all the process which was due, and
constitutes no part of rulings of facial unconstitutionality for failure to require prompt pretrial
the opinion of the court hearings on probable cause were reversed.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Du Page County, the Hon. Thomas C.
Review Dudgeon, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Robert Berlin,
Appeal State’s Attorney, of Wheaton (Michael A. Scodro, Solicitor General, and
Michael M. Glick and Eldad Z. Malamuth, Assistant Attorneys General,
of Chicago, of counsel), for the People.
Donald J. Ramsell, of Wheaton, for appellees.
Justices 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 BACKGROUND
¶3 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 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
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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).
¶4 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 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.
¶5 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
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).
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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 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.
¶6 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.
¶7 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 vehicle forfeiture provisions of the Code unconstitutional. Further briefing was
ordered and, again, the case was consolidated with the others for a ruling.
¶8 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
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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.
¶9 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 5/2-619(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 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.
¶ 10 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. 555-5-
(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,
probable cause hearing). We now consider the constitutionality of the vehicle forfeiture
provisions at issue.
¶ 11 ANALYSIS
¶ 12 I. Propriety of Section 2-619 Motion to Attack Constitutionality
¶ 13 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., 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
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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 II. Statutory Scheme
¶ 15 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).
¶ 16 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 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).
¶ 17 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 5/36-2(a) (West 2006). If the State fails to make this required showing, the court
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must order the vehicle released to the owner. 720 ILCS 5/36-2(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)).
¶ 18 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 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 III. Standard of Review
¶ 20 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).
¶ 21 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
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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).
¶ 22 IV. Due Process Requirements
¶ 23 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.
¶ 24 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.
¶ 25 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 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
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remission or mitigation. 19 C.F.R § 171.2(a) (1982).
¶ 26 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.
¶ 27 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 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 563-69.
¶ 28 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.
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¶ 29 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 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.
¶ 30 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.
¶ 31 V. Krimstock
¶ 32 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.
¶ 33 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.
¶ 34 In contrast to Krimstock, there is no evidence in the record before us that forfeiture
proceedings in Illinois are commonly stayed until 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
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requests for continuances and their constitutional challenges to the statute.
¶ 35 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.
¶ 36 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.
¶ 37 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 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.
¶ 38 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.
¶ 39 Secondly, Krimstock’s point about the option in Von Neumann for filing a motion under
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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
5/114-12(a) (West 2008) (“A defendant aggrieved by an unlawful search and seizure may
move the court for the return of property.”), with 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.
¶ 40 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.
¶ 41 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.
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-CV-
1473 (CET), 2010 WL 4290105, at *5 (E.D. Mo. Oct. 22, 2010).
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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 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 VI. Innocent Ownership by Co-owner
¶ 43 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.
¶ 44 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
3
The Illinois forfeiture statute requires the court to release the vehicle to the owner if the
State fails to meet its burden to show that the 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”).
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federal statute involved in $8,850 and Von Neumann,4 did not mandate return of the vehicles
or cash just because one of the owners demonstrated his innocence.
¶ 45 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
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.
¶ 46 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
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 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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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.
¶ 47 Krimstock attempted to distinguish Bennis in part by claiming in a footnote that
“[n]othing on the face of the [Michigan] provision, or 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.
¶ 48 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 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.
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¶ 49 VII. Application of Barker Test
¶ 50 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).
¶ 51 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 open-ended 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 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”).
¶ 52 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
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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.
¶ 53 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 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.
¶ 54 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.
¶ 55 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).
¶ 56 VIII. Facial Challenges Contrasted With As-Applied Challenges
¶ 57 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
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this 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 as-applied analysis) is
“both appropriate and correct.” See infra ¶ 100 (Karmeier, J., specially concurring).
¶ 58 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.
¶ 59 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. Under the circumstances, we believe that it is
completely appropriate for this court to accept claimants’ characterization of the challenge
as a facial one.
¶ 60 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”
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challenge.
¶ 61 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.
¶ 62 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, Id. at __, 130 S. Ct. at 893.
¶ 63 Here, we must initially assess claimants’ challenge for facial invalidity. This was the
remedy sought and the one ordered by the circuit court when it found that the statute was
unconstitutional in all its applications and therefore could not be enforced.
¶ 64 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.
¶ 65 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.
¶ 66 In other words, Von Neumann stands for the proposition that intermediary hearings are
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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 18-month 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 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.
¶ 67 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.
¶ 68 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 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
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interest affected.
¶ 69 As a final matter, we note that we have allowed the State’s motion to cite as additional
authority a recent amendment to the vehicle-forfeiture 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 vehicle forfeiture 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).
¶ 70 CONCLUSION
¶ 71 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 judgment of the circuit court of Du Page County is reversed and the cause
remanded for further proceedings consistent with this opinion.
¶ 72 Reversed and remanded.
¶ 73 JUSTICE KARMEIER, specially concurring:
¶ 74 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.
¶ 75 The circuit court considered the constitutionality of the vehicle-forfeiture 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
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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.
¶ 76 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 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).
¶ 77 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.
¶ 78 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
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State’s motion for reconsideration.
¶ 79 The State filed its notice of appeal on March 30, 2010. The following day, the Illinois
Appellate Court, Second District, filed an 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
¶ 80 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 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.
¶ 81 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
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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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.
¶ 82 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 court 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.
¶ 83 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. 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.
¶ 84 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).
¶ 85 The difficulty may lie in the doctrine itself. One commentator has charged that
“categorizing constitutional cases into ‘facial’ and ‘as-applied’ 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
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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.
¶ 86 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 distinguish them from
the familiar “overbreadth” facial challenges common in first amendment cases.
¶ 87 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.
¶ 88 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.
¶ 89 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.
¶ 90 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 recourse which these
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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.
¶ 91 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.
¶ 92 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.
¶ 93 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,
“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
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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.
¶ 94 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.
¶ 95 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 enactment in its entirety and in all
applications. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008).
¶ 96 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.”
¶ 97 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.
¶ 98 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.
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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.
¶ 99 Jurisprudential considerations also weigh in favor of approaching claimants’ efforts to
recover the vehicles as presenting an “as-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).
¶ 100 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.
¶ 101 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.
¶ 102 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 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
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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.
¶ 103 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.
¶ 104 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.
¶ 105 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
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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.
¶ 106 Although they persist in the view that the case law dealing with “as applied” should guide
their evaluation of the facial validity of 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.
¶ 107 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).
¶ 108 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.
¶ 109 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 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.
¶ 111 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
claimants thus far in these proceedings, did not violate claimants’ procedural due process
rights.
¶ 112 JUSTICE FREEMAN, dissenting:
¶ 113 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.
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¶ 114 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.
¶ 115 JUSTICE BURKE joins in this dissent.
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