IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
DUPAGE COUNTY, ILLINOIS

CASE NO: 2008 MR 1320 

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff,

v.

ONE 1996 Chevrolet

VIN NO. 253512

Michael Adams,

Defendant.

CLAIMANTS 2-619 MOTION

TO DECLARE THE VEHICLE FORFEITURE STATE UNCONSTITUTIONAL

AND TO DEMAND RETURN OF PROPERTY SEIZED THEREUNDER

General Facts

According to the State's Verified Complaint, on August 8, 2008, the Carol Stream Police Department seized the above vehicle.

The claimant herein is the charged Defendant in the underlying criminal case. In his verified answer, Claimant alleges that he has not have committed any wrongdoing in this matter.

THE ILLINOIS FORFEITURE STATUTE IS UNCONSTITUTIONAL BECAUSE IT FAILS TO CONTAIN ANY MECHANISM FOR A PROMPT POST-SEIZURE REVIEW OF THE STATES RIGHT TO CONTINUING POSSESSION OF THE PROPERTY.

The Illinois statutory scheme under which the State is claiming the right to continuing possession and ultimate ownership of the seized vehicle in question is found at 720 ILCS 5/36-1 et. seq.

If this scheme is declared unconstitutional, and hence invalid, there is no further legal basis alleged by the State which authorizes them to the continuing possession of the vehicle in question. Hence, claimant demands that, upon declaring the scheme in question unconstitutional, that the court additionally order the State to immediately return the vehicle to its legal owner.

The case of United States v. $8850, 461 U.S. 555 (1983) holds that the Due Process clause of the United States Constitution requires a prompt post-seizure hearing when the government takes property. The timeliness of such a hearing was framed therein as "when a post seizure delay may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time." $8850, 461 U.S. at 562-563.

In United States v. James Daniel Good Real Property, 510 U.S. 43 (1993), a case involving real property as opposed to personal property, the Court found that Due Process requires the court to look at "the private interest affected by the official action; the risk of an erroneous deprivation of that interest through the procedures used, as well as the probable value of additional safeguards; and the Government's interests, including the administrative burden that additional procedural requirements would impose." Good, 510 U.S at 53, citing to Mathews v. Eldridge 424 U.S. 319 (1976).

In Krimstock v. Kelly, 306 F3d 40 (2^nd Cir. 2002) the Court of Appeals, in a case involving the seizure and forfeiture of automobiles under the New York City Administrative Code, concluded that a prompt post-seizure retention hearing, with adequate notice, was required before the actual forfeiture proceeding, in order to comport with Due Process.

The Illinois Statute fails to provide for a prompt post seizure retention hearing, or a prompt hearing of any kind.

The Krimstock court cited a number of salient factors in determining the need for a prompt hearing. Factors included the possibility that there was an innocent owner of the property, or an erroneous deprivation because the conduct was not unlawful.

The Krimstock court also noted the importance of an automobile as a mode of transportation, and for some people, a means to earn a living. This court can take notice that public transportation in the Chicago Suburbs is not an adequate substitute for an automobile, and that money damages for the wrongful retention of a seized automobile would be immeasurable and inadequate. Hence the need for a prompt hearing of some kind is heightened.

Further, automobiles depreciate over time. The Illinois Forfeiture statute fails to provide a mechanism for compensating the innocent owner for any damages from such a loss of value through the post-seizure and pre-hearing depreciation.

Also, the loss of use and enjoyment of the property while it takes months (or years) for a full forfeiture hearing damages the rightful owner(s) of a vehicle, and said damage also goes uncompensated under the statute.

Additionally, this court should note that many automobiles are purchased by installment contracts. Rarely do purchasers of new cars (which are thus more expensive than used cars) pay cash. While the right to a hearing is delayed or absent, innocent owners must continue to make payments for seized cars, or the car will be seized by the lienholder due to a default under the installment contract. Thus, claimants must pay for a car they have no opportunity to use, and also obtain alternative means of transportation (if available) until such time as a hearing occurs. Under the 'meaningful hearing at a meaningful time' phrase used in $8850, the failure of the Illinois statutory scheme to have any time limits in place to minimize the risk of an erroneous deprivation of property deprives innocent persons of due process.

Claimant is a perfect example of the fatality of the Illinois Vehicle Forfeiture statute. The pleadings on their face fail to justify the State's continuing retention of her property. Yet, claimant has no statutory ability to obtain a prompt post-seizure, and pre-forfeiture judicial review of his claim of innocence. Without such a hearing, the risk of an erroneous deprivation of property goes unchecked.

Claimant's case is not unique. There is a wealth of persons in a real world sense who could be described as innocent claimants. Current and former spouses, as well as parents, relatives and friends, frequently co-sign loan papers for vehicles where a primary driver has less than 'acceptable' credit. Parents often are the true owners of a child's vehicle. There are many families who can only afford one car; a seizure of the automobile has devastating consequences.

If this court weighs the substantial likelihood of risk of erroneous deprivation to an innocent owner for a significant period of time where no hearing is provided for by statute, then clearly the Illinois Vehicle Forfeiture Statute does not comport with Due Process.

THE TIME FOR A POST-SEIZURE FORFEITURE HEARING IS UNLIMITED BY STATUTE. THE STATUTE FAILS TO PROVIDE FOR A MEANINGFUL POSTSEIZURE HEARING AT A MEANINGFUL TIME. SUCH A FAILURE VIOLATES THE RIGHT TO DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS.

The fundamental requirement of due process is an opportunity to be heard at a meaningful time and in a meaningful manner. Stypmann v. City and County of San Francisco, (9^th Cir. 1977) 557 F.2d 1338. The Illinois Vehicle forfeiture scheme provides that, upon seizing a vehicle, the sheriff shall within 15 days give notice to the State's Attorney and to any person holding a right title or interest of record in the vehicle. Notice may be swift, but a hearing is not.

Thereafter, the State's Attorney may cause a complaint for forfeiture to be filed. No time limit is contained in the statute limiting the length of time for filing of such a complaint. Thus, there appears to be no statute of limitations for complaints for forfeiture.

Notice of the filing of the complaint shall be mailed to interested persons. Thereafter, the person(s) has 20 days to file a verified answer. Thus there is no time limit for the government's filing of a complaint; there is a 20 day limit for any claimant, however.

In sum, there are no time constraints contained in the statute for any post-seizure hearing to take place. Had the legislature placed any constraints in the statute, the court would be allowed to give the legislative time limits deference. However, having placed no constraints whatsoever in the scheme, the scheme fails to survive a constitutional challenge that it violates Due Process.

AN INTERNAL REVIEW OF THE FORFEITURE BY THE STATE'S ATTORNEY, IS NOT A SATISFACTORY REPLACEMENT UNDER THE DUE PROCESS CLAUSE FOR A MEANINGFUL, INDEPENDENT PROMPT POST-SEIZURE HEARING BY THE JUDICIARY.

If the State's Attorney argues that the statute satisfies Due Process by allowing it to internally review claims of innocent owners, such a review is not a satisfactory replacement for an independent review.

First, if such a review is appropriate, why is the claimant in this matter, still before the court?

Secondly, the State's Attorney is not 'independent', because he is the attorney for the opposing party in these cases. Thus, he has a conflict under the canon of ethics if he claims that he is representing (in some way) the interests of both the State and the claimant.

Even if this internal review is a partial satisfaction of due process, the claimant has no right to participate in the review. Thus, the review does not appear to be tantamount to a hearing whatsoever. Further, there are no guidelines governing the review process. What documents are reviewed? Police Reports? Bank Records? The statute therefore provides no guidelines for uniformity in any such a review process.

Lastly, the claimant has no 'appeal' rights from the denial of such an alleged internal review. Nor can the claimant even compel a review. Lastly, there is no timeframe for when such a review must take place.

A STAY OF THE MANDATE HAS NO EFFECT ON THE PRECEDENTIAL VALUE OF THE DECISION IN SMITH

Regardless of whether the decision in Smith v. City of Chicago 524 F.3d 834 (7^th Cir. 2008), is precedential and binding, or not, Smith provides a helpful analysis of the issues at hand. The claimant herein is taking the position that, with or without the benefit of the Smith decision, this trial court should declare the Illinois Vehicle Forfeiture Scheme unconstitutional.

Nevertheless, the stay of the mandate has no bearing on the precedential effect of the decision in Smith.

In Friel Prosthetics, Inc. v. Bank of America 2005 WL 348263, 1 (D.Md.) (D.Md.,2005), the District Court wrote:

"[T]he Defendants concede that although a stay of the Wachovia mandate may affect what the district court can do in that case, it does not prevent the Fourth Circuit decision from having precedential value and binding authority on the undersigned in the matter sub judice. See, e.g., Abukar v. Ashcroft, 2004 WL 741759 (D.Minn.2004) (noting that neither party addressed the effect on the precedential value of an opinion when the mandate is stayed, but exercising its discretion to grant stay). Accordingly, deferring a decision on the remand issue until the Fourth Circuit addresses the requested stay in Wachovia is not warranted."

CONCLUSION

For all of the above reasons, Claimant prays for the following relief:

1. That the trial court declare that the Illinois Vehicle Forfeiture Scheme, 720 ILCS 5/36-1 is unconstitutional under the 5^th and 14^th Amendments to the United States and Illinois Constitutions, in that it fails to provide for a prompt post-seizure hearing of any kind at a meaningful time and in a meaningful manner, such that it violates Due Process.

2. That the statute(s) in question violate the Due Process clause in that it grants and treats certain claimants differently than other claimants, without a lawful basis, by giving commercial claimants greater rights and benefits than non-commercial claimants, even though they may otherwise be similarly situated.

3. That the trial court thereafter order the State to immediately turn over the vehicle in question to claimant as the lawful owner, as there has been no alternative basis alleged for the retention of the property in question.

4. That the Court award all statutory court costs to the claimant.

Respectfully Submitted,

Ramsell & Kunowski, L.L.C.

By:

Donald J. Ramsell

Ramsell & Kunowski, L.L.C.

128 S. County Farm Road #F

Wheaton, IL 60187

(630) 665-8780

Atty. 1133

s/dui/forefeituremotion 2-619