THE PEOPLE OF THE STATE OF ILLINOIS ex rel. RICHARD A. DEVINE, Appellant, v. $30,700.00 UNITED STATES CURRENCY et al., Appellees.
No. 90470
Supreme Court of Illinois
Opinion filed March 21, 2002.
142-161
Conviction vacated.
James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State‘s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and
David R. McLenachen and Thomas Peters, both of Chicago, for appellees.
JUSTICE FITZGERALD delivered the opinion of the court:
Pursuant to the Drug Asset Forfeiture Procedure Act (the Act) (
BACKGROUND
On May 23, 1998, the Chicago police received a tip that a man wearing a white jersey had entered the Drexel National Bank, in Chicago, holding a gun. Responding to the tip, police entered the bank and observed a man wearing a white jacket holding a white cylindrical object under his arm. The police officers approached the man, whom they later identified as Rashawn, and performed a
Following the pat-down, the officers questioned Rashawn and learned that he did not have an existing account at the bank, but that he planned to rent a safety-deposit box. Rashawn provided conflicting answers when asked where he obtained the money and was unable to provide an accurate figure of the amount of money he was carrying. The officers subsequently took Rashawn to the police station for further questioning. At the police station, Rashawn admitted that he was a member of the Gangster Disciрles street gang, that he was unemployed and did not own the money, and that he “messed up” trying to deposit the money. Rashawn also informed officers that he had been previously arrested for cannabis possession and that he was out on bond pending a hearing in that case. A background check confirmed a prior arrest and revealed an extensive criminal history, including six adult arrests by the Chicago police, a 1992 narcotics possession conviction, the use of multiple aliases, an arrest in Sangamon County, Illinois, for possession of a controlled substance, and the use of separate invalid driver‘s licenses with addresses in both Chicago and Springfield, Illinois.
The officers performed a “money lineup” with the currency. The money was “hidden” and subsequently “discovered” by a narcotic-sniffing police dog. The police dog positively identified the money as having a residue odor of narcotics.
Officers also discovered in Rashawn‘s possession three separate safety-deposit box keys. Although Rashawn initially denied any knowledge about the keys, he ultimately informed the officers that the keys belonged to “two separate banks in Peoria, Illinois.” The officers,
Five days after the Chicago police executed the warrant, Ida telephoned the police to inquire about the contents of the safety-deposit box. When the officer questioned Ida about the safety-deposit box, Ida was unable to identify its contents. Ida did not indicate to the police that she possessed any interest in the contents of the safety-deposit box. Notwithstanding, officers scheduled two separate appointments with Ida so that she could establish a claim to its contents. Ida failed to keep either appointment with the police.
On August 4, 1998, the State filed a consolidated in rem complaint for forfeiture of the $30,700 and $20,811 pursuant to section 505 of the Illinois Controlled Substances Act (
On the same day, the State mailed notice of the forfeiture proceedings and a copy of the in rem complaint via certified mail, with a return receipt requested, to Rashawn at his last known address on Chicago‘s south side. The notice was accompanied by an affidavit of an assistant State‘s Attorney who verified the method of service, identified the party having an interest in the money, and asserted that no claim to the money had been filed. The State concedes that it did not receive a return receipt frоm the August 4 mailing. The State also made additional service by publication of the forfeiture proceedings on August 7, August 14, and August 21 in the Chicago Daily Law Bulletin. Rashawn did not respond to the notice of forfeiture or appear before the court at the forfeiture proceeding.
Following the mailing to Rashawn and notice by publication, the State made additional efforts to serve notice of the proceedings to additional potential parties of interest. The record shows that on September 2, 1998, the State sent notice of forfeiture by certified mail to Ida at her address, on Chicago‘s south side, also Rashawn‘s last known address. As with the previous mailing, the State concedes, it did not receive a return receipt from the September 2 mailing. Ida did not appear before the court at the forfeiture proceeding.
On October 13, 1998, the circuit court entered a default order forfeiting Rashawn‘s interest and that of all other parties claiming right, title, or interest in the currency. On January 13, 1999, Rashawn and Ida filed a joint motion to vacate the forfeiture, alleging that they never received notice of the forfeiture proceeding. Rashawn provided an affidavit stating that he was incarcerated for unrelated charges in the Vandalia Cor-
The appellate court reversed the judgment of the circuit court, holding that the circuit court lacked personal jurisdiction over Rashawn and Ida because they were not properly served in accord with the Act. 316 Ill. App. 3d at 474-75. According to the appellate court, complete service under the Act is accomplished when the State receives a return receipt signed by the addressee. 316 Ill. App. 3d at 469. Moreover, the appellate court held that the State failed to give Rashawn notice required by due process. 316 Ill. App. 3d at 471. This appeal by the State followed.
ANALYSIS
I. Effective Notice Under the Act
As an initial matter, we review whether service is perfected under the Act upon mailing of the notice or, conversely, upon receipt of the certified mail return receipt signed by the addressee. The parties agree that absent proper notice of the forfeiture proceedings, the circuit court lacked jurisdiction and the power to order forfeiture of the currency. The parties also agreе that the State never received certified mail return receipts of the notice mailings sent to both claimants. However, the State argues that failure to receive these return receipts does not render the notice defective. Rather, the State argues that service is effective under the Act upon the mere mailing of notice by certified mail, as long as the notifying party had no reason to suspect that the notice would not reach the intended recipient. This matter involves an issue of statutory interpretation, and our
The Act is a remedial civil sanction enacted for the express purpose of deterring the rising incidence of the abuse and trafficking of substances prohibited by the Illinois Controlled Substance Act (
The Act contains uniform procedures to accomplish the forfeiture of drug-related assets.
The Act outlines the method of notice required to apprise individuals of pending forfeiture proceedings.
In order to determine when mailed notice is perfected under the Act, we are bound by long-standing principles of statutory construction. We must give effect to legislative intent, which begins with the plain language of the statute. People v. Woodard, 175 Ill. 2d 435, 443 (1997); Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 378 (1996); People ex rel. Baker v. Cowlin, 154 Ill. 2d 193, 197 (1992). Where clear and unambiguous, statutory language must be enforced as enacted, and a court may not depart from its plain language by read-
In light of the express language contained in section 4 of the Act, we hold that service of notice by mailing is perfected when the notice is deposited in the mail, provided the State complies with the mailing procedures set forth in the Act. Section 4(B) expressly states, “[n]otice served under this Act is effective upon *** the mailing of written notice ***.”
Claimants argue that the inclusion of the “return receipt” language implies that the legislature intended that notice would not be perfected unless and until the State receives the return receipt. This argument fails to consider the structure of section 4, which, when plainly read, supports another conclusion. Section 4(A) directs the State to issue notice of forfeiture proceedings by specific methods—personal service, publication, or postal delivery. Essentially, section 4(A) directs how notice shall be given, or by what means notice must be served. Where postal delivery is requirеd, section 4(A) requires service by certified mail with a return receipt requested. In contrast, section 4(B) fixes when service is complete. Service is effective “upon personal service, the last date of publication, or the mailing of written notice, whichever is earlier.” (Emphasis added.)
Clearly, our legislature is able to expressly condition
Citing Avdich v. Kleinert, 69 Ill. 2d 1 (1977), the appellate court reasoned that the mere inclusion of a return receipt requirement in any portion of section 4 implies that the return of the receipt is required for notice to be effective. 316 Ill. App. 3d at 469. Specifically, the appellate court stated, “[t]hat the party giving notice must receive a return receipt signed by the addressee in order to accomplish service is a well-established requirement in Illinois law.” 316 Ill. App. 3d at 469. Avdich is not authority for the proposition that all enactments which
Claimants argue that the only advantage of certified mail with a return receipt requested is to provide proof of delivery. Proof of delivery is not the only discernable advantage. Rather, the inclusion of a return receipt request requirement in the statute serves more than one purpose. According to the certified mailing receipt contаined in the record, each piece of certified mail is assigned a tracking number, and a record of all deliveries is kept by the postal service for a period of two years. This information grants the sender actual proof of mailing.
Finally, we must also consider that the Act is remedial in nature; therefore, the Act warrants liberal construction to achieve the overall purpose of the statute.
The record shows that on August 4, 1998, pursuant to section 4(A)(1) of the Act the State mailed notice to Rashawn via certified mail with a return receipt requested. The State mailed this notice pursuant to information supplied by Rashawn on the date of seizure, May 23, 1998. The record does not show that Rashawn notified the State of a change in his address. Pursuant to our holding, we find that service of this notice was complete upon its mailing, August 4, 1998. The record also shows that pursuant to section 4(A)(1), on September 4, 1998, the State mailed notice to Ida at the address believed to be her residence. Consistent with our holding, service was complete upon its mailing, September 4, 1998.
II. Due Process
We now turn to whether notice in this instance satisfied procedural due process. According to the appellate court, notice mailed to Rashawn‘s home address was “not reasonably calculated to apprise Rashawn of the pending forfeiture proceeding.” 316 Ill. App. 3d at 471. The appellate court concluded that because Rashawn‘s address at the Vandalia Correctional Center was “readily ascertainable,” failure to send notice of forfeiture to this address denied Rashawn due process of law. 316 Ill. App. 3d at 471. We disagree. The State provided constitutionally adequate notice.
Whether claimants were afforded due process in the instant matter is an issue of law, and any review is de novo. People v. Dameron, 196 Ill. 2d 156, 162 (2001); see also People v. Anaya, 279 Ill. App. 3d 940, 944-45 (1996). “Due process entails an orderly proceeding wherein a
Further, as recently stated by the United States Supreme Court, due process does not require that “the State must provide actual notice, but that it must attempt to provide actual notice.” (Emphases in original.)
“Petitioner argues that because he was housed in a federal prison at the time of the forfeiture, the FBI could have made arrangements with the BOP [Bureau of Prisons] to assure the delivery of the notice in question to him. [Citation.] But it is hard to see why such a principle would not also apply, for example, to members of the Armed Forces both in this country and overseas. Undoubtedly the Government could make a special effort in any case (just as it did in the movie ‘Saving Private Ryan‘) to assure that a particular piece of mail reaches a particular individual who is in one way or another in the custody of the Govеrnment. *** But the Due Process Clause does not require such heroic efforts by the Government; it requires only that the Government‘s effort be ‘reasonably calculated’ to apprise a party of the pendency of the action ***.” Dusenbery, 534 U.S. at 170.
Despite the dissent‘s contention, the Court did not hold that “[i]n the event the property owner is incarcerated, the government must send the notice to the owner at his place of incarceration.” 199 Ill. 2d at 168 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.). This issue was not considered by the Court. Instead, the Court considered the constitutional sufficiency of the mail delivery and distribution system once mail arrived
Turning to the instant matter, the appellate court determined that the sending of notice to a claimant at his home address while the claimant is incarcerated fails to reasonably apprise the claimant of the pending forfeiture proceedings. 316 Ill. App. 3d at 469. The appellate court based its decision upon both Illinois appellate and federal decisions. See Robinson v. Hanrahan, 409 U.S. 38 (1972); Ramirez v. United States, 767 F. Supp. 1563 (M.D. Fla. 1991); Winters v. Working, 510 F. Supp. 14 (W.D. Tex. 1980); Jaekel v. United States, 304 F. Supp. 993 (S.D.N.Y. 1969); United States v. Woodall, 12 F.3d 791 (8th Cir. 1993); People v. Smith, 275 Ill. App. 3d 844 (1995). These cases do not convince this court that claimants were denied due process.
For example, in Smith the defendant was arrested for the possession of cocaine and cannabis. Smith, 275 Ill. App. 3d at 846. At the time of his arrest, officers seized the sum of $106 from the defendant. Notice of pеnding forfeiture was sent to the defendant‘s home address. Defendant failed to reply or appear, and the court ordered forfeiture of the currency. The appellate court held that the State failed to give notice required by due process because notice of the forfeiture proceedings was mailed to defendant‘s residential address despite the State‘s knowledge that the defendant was confined to jail for charges brought at the time of seizure. Smith, 275 Ill. App. 3d at 850-51. Similarly, in Robinson the defendant was arrested and charged with armed robbery. Robinson, 409 U.S. at 38. The defendant was held in custody awaiting trial when the State initiated forfeiture proceedings against the automobile used by the defendant at the time of his arrest. The State issued notice of forfeiture proceedings to the ad-
In the above-mentioned cases, and other cases relied upon by the appellate court and claimants, we find one critical factor present which is absent in the instant matter: the notifying party knew the claimant‘s name and address and failеd to serve notice to that address. See, e.g., Schroeder v. City of New York, 371 U.S. 208, 210 (1962) (the appellant‘s name and address were known from both deed records and tax rolls); Woodall, 12 F.3d at 794-95 (notice mailed to the defendant at home and jail was insufficient because the government knew the defendant was released on bond to a different temporary residence); Williams v. United States Drug Enforcement Administration, 51 F.3d 732, 734 (7th Cir. 1995) (notice mailed to the claimant‘s residential address was insufficient because although he was incarcerated on unrelated charges, the seizing agency was “well aware of his incarceration” and had weekly conversations with him at the jail at the time it mailed notice to his residence); Jaekel, 304 F. Supp. at 999 (the seizing agency had plaintiff‘s name and address; therefore, notice by publication was insufficient); Montgomery v. Scott, 802 F. Supp. 930, 936 (W.D.N.Y. 1992) (at the time of his arrest for the possession and sale of a controlled substance, officers seized $32,000 in currency, holding that “‘where the state knows that an interested party does not reside at the mailing address *** due process may require more than sending a letter to the address on file‘” (emphasis in original)), quoting Weigner v. City of New York, 852 F.2d 646, 650 n.4 (2d Cir. 1988). Often in forfeiture cases, the party claiming interest in the subject property was incarcerated or confined to jail for conduct related to the seizure of property. As a result, the arrest and seizure were interrelated, such that thе seizing agency knew the claimant‘s actual location. Therefore, in instances where the seizing agency has knowledge the individual is incarcerated, notice mailed to the individual‘s listed last known address is a mere gesture and not reasonably calculated to apprise the individual of the pending proceedings.
A federal court case is helpful in the instant matter. In Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10 (1st Cir. 1993), the court of appeals addressed whether notice mailed to the claimant‘s last known address, which was returned “unclaimed,” and was supplemented by publication satisfied due process. In Sarit, the claimants argued that the DEA knew that they were represented by counsel and planned to contest forfeiture. Therefore, they argued that when the notice was returned “unclaimed,” the DEA‘s failure to contact counsel and acquire their current address denied them due process. The court of appeals disagreed:
“We note at the onset that while Mullane clearly contemplates inquiry into the ‘peculiarities’ and the ‘practicalities’ of a given case, it has not generally been interpreted to require a party to make additional attempts beyond notice that is legally satisfactory at the time it is sent. [Citation.] The Court has read an implicit bad faith standard into the notice inquiry, overturning notice even where formal procedures were followed if thе notifying party knew or had reason to know that notice would be ineffective. [Citations.] *** Virtually all of the cases relied upon by plaintiffs share the feature—missing from this case—that the government knew at the time the notice was sent that the notice was likely to be ineffective. [Citations.] *** Only exceptional circumstances would compel us to
so extend the DEA‘s duty, absent indication that it knew or should have known that the notice would be ineffective.” (Emphasis added.) Sarit, 987 F.2d at 14-15.
Likewise, we have considered the “peculiarities” and circumstances of the instant matter. Here, there is no evidence in the record that the seizing agency knew or should have known Rashawn was incarcerated in the Vandalia Correctional Center. Rather, Rashawn‘s subsequent arrest and incarceration were unrelated to the seizure of the currency at issue here. In fact, Rashawn was incarcerated in a separate county for a separate crime approximately six weeks after officers seized the currency. The record shows that on May 23, 1998, at the time of seizure, Rashawn gave his address to the officers and freely left the station. This was Rashawn‘s final contact with the seizing agency; he did not notify the seizing agency of his change of address.
prior to service of notice. However, such “heroic efforts” are not required. Dusenbery, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694. Moreover, the circumstances of this case do not demand that we extend the State‘s duty in this manner.
Regardless, we observe that the State did make additional attempts to afford notice in the instant case. This is evident by the State‘s attempt to supplement the notice mailing with notice by publication. Pursuant to the Act, the State published notice of the forfeiture proceedings on three separate occasions. According to the Act, publication is only acceptable where the claimant‘s address is unknown.
CONCLUSION
Accordingly, we hold that under the Drug Asset Forfeiture Procedure Act, wherе notice of forfeiture is mailed by certified mail with a return receipt requested, service is complete upon the mere mailing of the written notice. Additionally, we conclude that notice in this case was reasonably calculated to apprise all interested parties of the pending proceedings and, therefore, satisfied due process of law.
The judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court judgment reversed; circuit court judgment affirmed.
JUSTICE FREEMAN, dissenting:
The majority holds that claimant, Rashawn Carter, received appropriate notice of the forfeiture proceedings at issue. I disagree. Due process requires the government to provide notice that is reasonably calculated to apprise interested parties of the forfeiture proceedings and afford the parties an opportunity to be heard. In the present case, the notice the State gave Rashawn fell far short of the requirements of due process.
BACKGROUND
On May 23, 1998, police officers responded to a tip that a man with a gun had entered the Drexel National Bank. Upon their arrival at the bank, the officers observed Rashawn holding a white cylinder-shaped object under his arm. The officers performed a protective patdown of Rashawn and found several bundles of currency. The white cylinder-shaped object was actually a sock filled with additional currency. In all, the officers recovered $30,700 from Rashawn.
The officers questioned Rashawn and learned that he did not have an existing account at the bank, but that he planned to rent a safety-deposit box. Rashawn gave conflicting answers when asked where he had obtained the money and was unable to tell the officers how much money he was carrying. The officers took Rashawn to the police station for further questioning. At the station, Rashawn admitted that he was a member of a gang, that he was unemployed and that he did not own the money. Rashawn also told the officers that he had been arrested for possession of cannabis and was out on bond pending a hearing. A background check confirmed this arrest and
The officers performed a “money lineup,” at which a police dog positively identified the currency as having a residue odor of narcotics. A further search of Rashawn revealed three separate safety-deposit box keys. One of the keys was for a safety-deposit box at the Drexel National Bank registered to Ida Carter, Rashawn‘s grandmother. The officers obtained a search warrant for the safety-deposit box. During a subsequent search of the box, the police recovered $20,811. A police dog positively identified the currency as having a residue odor of narcotics. The State did not prosecute Rashawn for any narcotics violation in connection with the currency.
On August 4, 1998, the State filed a complaint for forfeiture of the $30,700 and $20,811. The complaint named Rashawn as a party with interest in the currency. On the same day, the State mailed notice of the forfeiture proceedings and a copy of the complaint via certified mail, with a return receipt requested, to Rashawn at 4844 S. State Street, Chicago, Illinois. The State did not receive a return receipt from the mailing. The State then published notice of the forfeiture proceedings on August 7, August 14 and August 21 in the Chicago Daily Law Bulletin. And on September 2, 1998, the State sent a notice of forfeiture by certified mail to Ida at 4844 S. State Street. The State did not receive a return receipt from the September 2 mailing. Neither Rashawn nor Ida appeared at the forfeiture proceedings.
On October 13, 1998, the сircuit court entered a default order forfeiting Rashawn‘s interest and that of all other parties claiming right, title, or interest in the currency. On January 13, 1999, Rashawn and Ida filed a joint motion to vacate the forfeiture, alleging that they did not receive notice of the forfeiture proceedings. In
The appellate court reversed, finding that the circuit court lacked personal jurisdiction over Rashawn and Ida because they were not properly served. 316 Ill. App. 3d 464, 471. The court noted further that numerous federal courts have questioned the probative value of positive dog alerts due to reports that reveal the high level of contamination of the nation‘s money supply with narcotics residue. 316 Ill. App. 3d at 472. The court adopted the view of these federal courts that the mere fact of prior contamination fails to establish that the currency was actually exchanged for or intended to be exchanged for drugs by the person currently in possession of the currency. 316 Ill. App. 3d at 473. Accordingly, the court concluded that the “sniff test” was not enough to establish probable cause that the currency seized from Rashawn was connected to narcotics. 316 Ill. App. 3d at 473.
ANALYSIS
The due process clauses of the
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information, [citation], and it must afford a reasonable time for those interested to make their appearance, [citation]. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. ‘The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.’ [Citations.]
But when notice is a person‘s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, [citation], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane, 339 U.S. at 314-15, 94 L. Ed. at 873-74, 70 S. Ct. at 657-58.
Notice by publication is not a favored mode of process. As the Supreme Court explained in Mullane,
“[i]t would be idle to pretend that publication alone as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. *** Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper‘s normal circulation the odds that the information will never reach him are large indeed.” Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 658.
Where the names and addresses of interested parties are
“[e]xceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” Mullane, 339 U.S. at 318, 94 L. Ed. at 875, 70 S. Ct. at 659.
The incarceration of a party with an interest in property being forfeited shapes the notice by due process. In Robinson v. Hanrahan, 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972), the appellant was arrested on a charge of armed robbery on June 16, 1970. The State instituted forfeiture proceedings against the appellant‘s car, alleging that the appellant had used the car in the armed robbery. The appellant was held in custody in the Cook County jail from June 16, 1970, to October 7, 1970, awaiting trial. Nevertheless, the State mailed notice of the forfeiture proceedings to appеllant‘s home address as listed in the records of the Secretary of State, and not to the jail facility. In finding the notice ineffective, the Supreme Court explained,
“In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was ‘reasonably calculated’ to apprise appellant of the pendency of the forfeiture proceedings.” Robinson, 409 U.S. at 40, 34 L. Ed. 2d at 49, 93 S. Ct. at 31-32.
In Dusenbery, 534 U.S. at 168, 151 L. Ed. 2d at 605, 122 S. Ct. at 700, quoting Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657, the Supreme Court reaffirmed that the government must give a property owner notice that is ” ‘reasonably calculated, under all the cir-
Applying these principles to the facts at issue, the Supreme Court found that the notice the government gave the property owner satisfied the requirements of due process. The Supreme Court explained,
“The Government here carried its burden of showing the following procedures had been used to give notice. The FBI sent certified mail addressed to petitioner at the correctional facility where he was incarcerated. At that facility, prison mailroom staff traveled to the city post office every day to obtain all the mail for the institution, including inmate mail. *** The staff signed for all certified mail before leaving the post office. Once the mail was transported back to the facility, certified mail was entered in a logbook maintained in the mailroom. *** A member of the inmate‘s Unit Team then signed for the certified mail to acknowledge its receipt before removing it from the mailroom, and either a Unit Team member or another staff member distributed the mail to the inmate during the institution‘s ‘mail call.’ ” Dusenbery, 534 U.S. at 168-69, 151 L. Ed. 2d at 605-06, 122 S. Ct. at 700.
The method chosen by the government in attempting notice was reasonable in light of the procedures follоwed by the FBI and the correctional institution.
Dusenbery, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694, is based squarely upon Mullane, 339 U.S. at 306,
The majority rejoins,
“Despite the dissent‘s contention, the Court did not hold that ‘[i]n the event the property owner is incarcerated, the government must send the notice to the owner at his place of incarceration.’ 199 Ill. 2d at 168 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.). This issue was not considered by the Court. Instead, the Court considered the constitutional sufficiency of the mail delivery and distribution system once mail arrived to the prison. Dusenbery, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694.” 199 Ill. 2d at 157-58.
The majority‘s construction of Dusenbery is simplistic, if not surprising. If due process did not require that mail be sent to the property owner at the place of incarceration, the Court would not have considered the “constitutional sufficiency of the mail delivery and distribution system once mail arrived to the prison.” Rather, the Court would have considered either the notice sent to the property owner at the house trailer where he was arrested or the notice sent to the property owner in Randolph, Ohio, the town where his mother lived, sufficient to comply with due process. Of course, such a holding would be contrary to Robinson, where, as noted above, the Court held that notice mailed to the property owner‘s home address as listed in the records of the Secretary of State, but not to the jail facility, was ineffective.
Perhaps the majority is intimating that Robinson is not good law, or that Dusenbery has limited Robinson in some fashion. Given the fact that Dusenbery did not criticize or, in any way, diminute the holding in Robinson, I, for one, believe that Robinson remains good law.
Turning to the facts of this case, Rashawn was
In a forfeiture proceeding, the interest of the property owner is potentially great. See
“A person who violates the narcotics laws might well possess valuable property that is unrelatеd to narcotics. The forfeiture of such property may be a matter of great importance to him. And without the owner even being made aware of, or having a practical opportunity to challenge the forfeiture, its lawfulness is difficult to justify. In these circumstances, furthermore, no one but the owner can be relied on to protect the owner‘s interest.”
Although the potential loss to the property owner may be great, forfeiture statutes generally allow notice by mail or publication. See
The majority disagrees. The majority maintains there is no evidence in the record that the seizing agency knew or should have known Rashawn was incarcerated in Vandalia. Rashawn was incarcerated in a separate county for a separate crime approximately six weeks after officers seized the currency. 199 Ill. 2d at 161. Citing Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10 (1st Cir. 1993), a case it finds “helpful in the instant matter,” the majority concludes that the notice to Rashawn‘s home was effective.
The majority fails to consider that when the officers interviewed Rashawn, he informed them he was out on bond for a prior arrest. A background check confirmed this arrest and also revealed that Rashawn had been arrested several times in Sangamon County, the last arrest on September 30, 1997. As the Third Circuit observed in Foehl v. United States, 238 F.3d 474, 480 (3d Cir. 2001), “although Foehl was not in jail at the time the notice was returned, he had been released on bail. We can safely assume that the Beaumont police had a very good idea of his whereabouts during that time.”
More importantly, however, the majority fails to consider that the State is one entity and not several agencies or departments. The State, in the person of the State‘s Attorney of Cook County, prosecuted the forfeiture action at issue. At the same time, the State prosecuted Rashawn for possession of cannabis based upon an incident on March 28, 1995, and aggravated battery based upon an incident on May 9, 1996.1 The State incarcerated Rashawn at Vandalia. A simple telephone call from the State‘s Attorney of Cook County to the Illinois Department of Correction would have provided the State‘s Attorney with the information needed to effectuate notice upon Rashawn.2
Lastly, the majority‘s reliance on Sarit is misplaced. In Sarit, DEA agents seized $41,448 from the plaintiffs’ then-residence, located at 114 Alvin Street, on July 28, 1989. The attendant search was conducted without a warrant. On August 21, 1989, the plaintiffs filed a motion pursuant to
In upholding the validity of the notice given by the DEA, the circuit court observed,
“Given plaintiffs’ vigorous (although tardy) pursuit of their claim, the fact that the government had been involved in ongoing court action on the very issue of the seizure of plaintiffs’ currency, the government‘s awareness of plaintiffs’ representation by counsel, and the frowned upon treatment of forfeitures, the call is a close one. [Citation.] Nevertheless, Mullane counsels us to consider all of the circumstances, and we find in this case other pertinent factors, including the government‘s memorandum and the conduct of plaintiffs’ counsel, which compel us to uphold the finding of the district court.” (Emphasis in original.) Sarit, 987 F.2d at 14.
The court of appeals found decisive that the plaintiffs’ counsel had sufficient general notice of the risk that the property would be forfeited within the coming months if action were not taken; the statute covering forfeitures and the regulations interpreting it were available to counsel; and, once the plaintiffs and their counsel were aware that notice of the forfeiture would be sent in the ensuing two months, they could have notified the DEA of their own change of address. The court concluded that “the damage done by the ineffective notice could and ought to have been stemmed by plaintiffs’ counsel.” Sarit, 987 F.2d at 15.
Sarit is distinguishable from the present case. First, the plaintiffs in Sarit were not incarcerated at the time of the forfeiture proceedings. Second, the plaintiffs in Sarit had instituted an action in the district court for the return of the property and were represented by counsel. Knowledge of the statutes regulating the forfeiture proceedings and the risk that the property would be forfeited within a short time period was attributed to
The majority‘s holding that the notice given Rashawn was effective is based upon the premise that the State may be compartmentalized, such that information avail-
CONCLUSION
The opportunity to be heard has “little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. In the present case, the State
I respectfully dissent.
JUSTICES McMORROW and KILBRIDE join in this dissent.