                                          2017 IL App (3d) 160439

                                 Opinion filed June 6, 2017
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2017

     ESTEBAN CARRILLO RODRIGUEZ,                        )       Appeal from the Circuit Court
                                                        )       of the 10th Judicial Circuit,
            Plaintiff-Appellant,                        )       Peoria County, Illinois,
                                                        )
            v.                                          )       Appeal No. 3-16-0439
                                                        )       Circuit No. 16-SC-478
     JERRY BRADY, in His Official Capacity as           )
     Peoria County State’s Attorney,                    )       Honorable
                                                        )       Katherine S. Gorman,
            Defendant-Appellee.                         )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice Carter concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                  OPINION

¶1          Plaintiff, Esteban Carrillo Rodriguez, filed a complaint in small claims court seeking the

     return of money that had been seized from him upon arrest and subsequently subjected to civil

     forfeiture. Defendant is Jerry Brady, the Peoria County State’s Attorney, whose office executed

     the civil forfeiture. Plaintiff argued in his complaint that the notice of forfeiture sent to his home

     address was constitutionally insufficient where defendant knew or should have known that

     plaintiff was in the Kane County jail after being arrested in Peoria County. Defendant filed a
     motion to dismiss the small claim, which the circuit court granted. We reverse and remand for

     further proceedings.

¶2                                                 FACTS

¶3          Plaintiff filed a small claims complaint in the Peoria County circuit court against

     defendant. In the complaint, plaintiff alleged that “without proof of notice and contrary to statute,

     the Peoria County State’s Attorney deprived the Plaintiff of his $5,335.00.” Within the

     complaint, plaintiff made a number of supporting factual allegations. Plaintiff alleged that he was

     arrested on October 7, 2008, in Peoria County, pursuant to a Kane County warrant. Plaintiff was

     in possession of $5335 at the time of his arrest, and that money was seized by arresting officers.

     After plaintiff had made numerous attempts to recoup his seized assets, the Kane County circuit

     court ordered the return of the money on January 30, 2014. Subsequently, plaintiff received a

     letter from the Kane County State’s Attorney’s office notifying him that the Aurora police

     department would be returning his money.

¶4          On March 5, 2014, the Kane County State’s Attorney’s office filed a motion seeking

     vacatur of the circuit court’s previous order. In the motion, the Kane County State’s Attorney’s

     office alleged that the Peoria County State’s Attorney had executed a declaration of forfeiture on

     the money in question prior to the court’s order. The circuit court granted the motion. Plaintiff

     subsequently wrote to the Peoria County circuit court, seeking a copy of the notice of forfeiture

     that was allegedly mailed to him. In response, plaintiff received a letter from the Peoria County

     State’s Attorney’s office informing him that notice of forfeiture had been mailed to him on

     November 19, 2014. The correspondence included a copy of the declaration of forfeiture, as well

     as a copy of the return receipt of the certified mailing of the notice of forfeiture. The declaration

     of forfeiture showed that notice was first mailed on November 11, 2008. The copy of the


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     certified mail envelope showed that attempts were made on three dates to deliver the notice to

     plaintiff at 18 W. 204 Knollwood Lane in Villa Park.

¶5          Plaintiff further alleged in his complaint that he had remained in continuous custody from

     the date of his arrest in October 2008. After receiving the above correspondence from the Peoria

     County State’s Attorney’s office, plaintiff contacted the Kane County jail, where he was residing

     throughout November 2008. The jail had no record of any mail addressed to plaintiff.

¶6          Plaintiff concluded that the Peoria County State’s Attorney’s notice of forfeiture was

     insufficient, where the office knew or should have known that plaintiff was in jail and not in his

     home in Villa Park. Absent proper notice, plaintiff argued, the executed forfeiture of the $5335

     in question was nothing more than a conversion.

¶7          Plaintiff attached to his complaint a number of exhibits that verified his factual

     allegations. The exhibits included the judgment from the Kane County circuit court ordering the

     return of $5335, as well as a copy of the letter sent by the Kane County State’s Attorney’s office

     to plaintiff informing him that the Aurora police department would be returning the money. Also

     attached was the letter from the Peoria County State’s Attorney’s office, as well as copies of the

     declaration of forfeiture and the notice of forfeiture and its return receipt.

¶8          Defendant filed a motion to dismiss plaintiff’s complaint. In the motion, defendant

     alleged that plaintiff was arrested in Peoria County on October 7, 2008, “pursuant to a warrant by

     deputy U.S. Marshals and Aurora, IL law enforcement personnel.” The motion further alleged

     that $5335 was seized from plaintiff as suspected proceeds of a drug transaction. Plaintiff gave

     his address to arresting officers as 18 W. 204 Knollwood Lane, Villa Park, Illinois.

¶9          Defendant’s allegations were supported by an Aurora police department report, which

     defendant attached to his motion. That police report described in detail a joint operation between


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       Aurora police officers and United States Marshals to apprehend plaintiff in Peoria County. At the

       time of the arrest, plaintiff was in possession of $5335 in cash. The report showed that plaintiff

       was transported to the Aurora police department upon his arrest. The $5335 was placed into the

       evidence safe at the Aurora police department. The police report explained that plaintiff had been

       the “middle man for a drug transaction involving 5 kilos of cocaine.” An inventory of seized

       property form, also attached to defendant’s motion, showed that the money was later deposited

       into Old Second National Bank in Aurora. That same form listed “Peoria County” as a 25%

       participant in the seizure.

¶ 10           Defendant alleged that notice of forfeiture was sent to plaintiff at the given address, in

       compliance with statute. Following a 45-day period, the money in question was declared

       forfeited. Defendant concluded: “the Plaintiff was notified in accordance with the statute and he

       no longer has a basis in law for the return of that money to him.”

¶ 11           Following a telephonic conference between the court, plaintiff, and counsel for

       defendant, the court granted defendant’s motion to dismiss. The ensuing written order declares

       that the court “grants the Defendant’s Motion to Dismiss.” Notably, defendant’s motion to

       dismiss did not specify a particular section of the civil code under which dismissal was sought.

       Nor did the circuit court’s order dismissing the complaint make such a specification.

¶ 12                                              ANALYSIS

¶ 13           On appeal, plaintiff argues that the circuit court erred in dismissing his complaint. He

       maintains that defendant failed to provide legally sufficient notice of forfeiture where notice was

       sent to an address at which defendant knew or should have known plaintiff was not residing.

¶ 14                                         I. Procedural History




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¶ 15          Initially, we must address the procedural posture of the case. Illinois Supreme Court Rule

       286(b) (eff. Aug. 1, 1992) provides:

                      “In any small claims case, the court may, on its own motion or on motion of any

                      party, adjudicate the dispute at an informal hearing. At the informal hearing all

                      relevant evidence shall be admissible and the court may relax the rules of

                      procedure and the rules of evidence. The court may call any person present at the

                      hearing to testify and may conduct or participate in direct and cross-examination

                      of any witness or party. At the conclusion of the hearing the court shall render

                      judgment and explain the reasons therefor to all parties.”

       Here, the record contains no indication that either party moved for an informal adjudication. Nor

       does the circuit court’s written order provide any indication that the court did so on its own

       motion. Indeed, the court’s order specified that it was granting defendant’s motion to dismiss,

       rather than adjudicating the issue on the merits.

¶ 16          The Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq. (West 2014)) provides

       two methods by which a complaint may be dismissed on the pleadings. Section 2-619 of the

       Code allows a defendant to move for dismissal of an action on the pleadings based on certain

       defects or defenses. 735 ILCS 5/2-619 (West 2014). Section 2-615 of the Code allows a

       defendant to move to dismiss an action on the grounds that the complaint is legally insufficient.

       735 ILCS 5/2-615 (West 2014).

¶ 17          In the present case, defendant did not raise any of the defects or defenses contemplated

       by section 2-619—such as lack of jurisdiction or statute of limitations—in his motion to dismiss.

       Instead, defendant argued that plaintiff had failed to state a claim because the pleadings showed

       that defendant had properly complied with the statutory notice requirements. As defendant


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       challenged the legal sufficiency of plaintiff’s complaint, we construe that motion to dismiss as a

       section 2-615 motion.

¶ 18          A motion to dismiss brought under section 2-615 of the Code challenges the legal

       sufficiency of a complaint. Wilson v. County of Cook, 2012 IL 112026, ¶ 14. “The critical

       inquiry in deciding a section 2-615 motion to dismiss is whether the allegations of the complaint,

       considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon

       which relief can be granted.” Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 61. We

       review de novo an order granting a motion to dismiss pursuant to section 2-615. Wilson, 2012 IL

       112026, ¶ 14. In conducting such review, all well-pleaded facts are assumed to be true. E.g., In

       re Estate of Brewer, 2015 IL App (2d) 140706, ¶ 11.

¶ 19          The nature of small claims court also dictates that pleadings in such courts shall be

       liberally construed. Porter v. Urbana-Champaign Sanitary District, 237 Ill. App. 3d 296, 300

       (1992). “All that is necessary in a small claims case for the complaint to be sufficient is that it

       clearly notify the defendant of the nature of plaintiff’s claim.” Id. (citing Miner v. Bray, 160 Ill.

       App. 3d 241, 243 (1987)). As the Fourth District has held, “In many [small claims] cases, it is

       more efficient for the trial court to try the case and decide it on the merits than it is to consider

       motions of the parties attacking the opponent’s pleadings, especially in light of the less formal

       pleading requirements in small claims cases.” Id. at 303-04.

¶ 20                                        II. Notice Requirement

¶ 21          The facts of the present case appear to be undisputed. The parties agree that defendant

       sent notice of forfeiture to 18 W. 204 Knollwood Lane, Villa Park, Illinois, in November 2008.

       That address was the address provided by plaintiff at the time of his arrest. The only question is

       whether that notice was legally sufficient. The propriety of the circuit court’s order thus turns on


                                                        6
       the legal question of sufficient notice. See id. at 300 (“In determining the propriety of the trial

       court’s order, the first issue is to determine the question of law ***.”).

¶ 22           The Drug Asset Forfeiture Procedure Act (Act) sets forth the procedures that must be

       followed when an agency seeks to execute civil forfeiture on assets seized in relation to certain

       drug offenses. 725 ILCS 150/1 et seq. (West 2008). Specifically, section 4 of the Act delineates

       the steps to be taken in providing notice of forfeiture to the owner or interest holder of the seized

       assets. 725 ILCS 150/4 (West 2008). The section provides in part:

                      “(A) Whenever notice of pending forfeiture or service of an in rem complaint is

                      required under the provisions of this Act, such notice or service shall be given as

                      follows:

                              (1) If the owner’s or interest holder’s name and current address are known,

                      then by either personal service or mailing a copy of the notice by certified mail,

                      return receipt requested, to that address. For purposes of notice under this

                      Section, if a person has been arrested for the conduct giving rise to the forfeiture,

                      then the address provided to the arresting agency at the time of arrest shall be

                      deemed to be that person’s known address.” (Emphasis added.) 725 ILCS

                      150/4(A)(1) (West 2008).

       See also 725 ILCS 150/4(B) (West 2008) (“Notice served under this Act is effective upon

       personal service, the last date of publication, or the mailing of written notice, whichever is

       earlier.”).

¶ 23           To be sure, defendant complied with the requirements set forth in section 4(A)(1) of the

       Act. Upon his arrest, plaintiff provided officers with his Villa Park address. Under the Act, that

       address is deemed to be his “known address,” and the address to which notice must be sent. 725


                                                         7
       ILCS 150/4(A)(1) (West 2008). Because defendant subsequently mailed the notice of forfeiture

       to that address, via certified mail with a return receipt requested, defendant was plainly in

       compliance with the Act.

¶ 24          This conclusion, however, does not end our analysis. The issue of notice is, at bottom, a

       constitutional issue. Specifically, the due process clauses of both the United States and Illinois

       Constitutions dictate that where the government attempts to deprive a person of property, it must

       first provide that person with notice and an opportunity to be heard. E.g., Mullane v. Central

       Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“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.”); Stratton v. Wenona

       Community Unit District No. 1, 133 Ill. 2d 413, 432 (1990) (“Due process entails an orderly

       proceeding wherein a person is served with notice, actual or constructive, and has an opportunity

       to be heard and to enforce and protect his rights.”). Thus, compliance with the Act’s notice

       requirements is irrelevant if the notice is constitutionally deficient. See People ex rel. Devine v.

       $30,700.00 United States Currency, 199 Ill. 2d 142, 148, 155 (2002) (analyzing as separate

       issues whether notice was statutorily sufficient and whether it was constitutionally sufficient). As

       the United States Supreme Court has stated: “[W]e have required the government to consider

       unique information about an intended [notice] recipient regardless of whether a statutory scheme

       is reasonably calculated to provide notice in the ordinary case.” Jones v. Flowers, 547 U.S. 220,

       230 (2006).

¶ 25          In order to pass constitutional muster, the notice provided to an owner of assets subject to

       civil forfeiture must be “reasonably calculated, under all the circumstances, to apprise interested


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       parties” of the pending forfeiture. Mullane, 339 U.S. at 314. In other words: “The means

       employed [in providing notice] must be such as one desirous of actually informing the absentee

       might reasonably adopt to accomplish it.” Id. at 315. Due process does not require the State to

       successfully provide actual notice but merely attempt to do so. Dusenbery v. United States, 534

       U.S. 161, 170 (2002). In determining whether given notice has been constitutionally sufficient,

       “a court may consider the character of the proceedings and the practicalities and peculiarities of

       the case.” Devine, 199 Ill. 2d at 156.

¶ 26          In Dusenbery, the agency seeking to commence forfeiture proceedings sent notice of

       forfeiture to the prison where it knew the defendant to be incarcerated. Dusenbery, 534 U.S. at

       164. The defendant, however, claimed that he never actually received that notice and argued that

       the government bore the burden of actually securing delivery of notice. Id. at 169. As an

       example, defendant contended that due process required a prison official to watch him open the

       notice and to cosign the receipt. Id. at 171. Rejecting this argument, the United States Supreme

       Court wrote: “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” Id. at 170 (quoting Mullane, 339 U.S. at 314).

¶ 27          The United States Supreme Court has held that in the context of forfeiture proceedings,

       where the government knows or should know where the owner of the seized property is located,

       notice intentionally sent to another location fails to satisfy due process requirements. Robinson v.

       Hanrahan, 409 U.S. 38, 39-40 (1972) (per curiam). The facts in Robinson are quite similar to

       those in the case at hand. In that case, the defendant was arrested and held in the Cook County

       jail for four months. Id. at 38. In that time, the State instituted forfeiture proceedings, mailing




                                                        9
       notice of forfeiture to the defendant’s home, rather than to the jail. Id. The Court found the notice

       insufficient, concluding:

                              “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.” Id. at 40.

¶ 28          The Illinois supreme court in Devine reaffirmed the basic principal set forth in Robinson

       but clarified that the element of knowledge on the part of the government was the key to any

       such analysis. Devine, 199 Ill. 2d at 159. After discussing a number of cases, including

       Robinson, in which courts had found notice insufficient on similar fact patterns, the court

       concluded: “[W]e find one critical factor present which is absent in the instant matter: the

       notifying party knew the claimant’s name and address and failed to serve notice to that address.”

       Id.

¶ 29          In the present case, the inventory of seized property form listed Peoria County as a 25%

       participant in plaintiff’s arrest. Peoria County surely knew or should have known that plaintiff

       was being transported back to Kane County following his arrest in Peoria County. Moreover,

       Peoria County, as a 25% participant in an operation that included United States Marshals, surely

       knew that plaintiff was being arrested for a serious drug offense rather than some minor offense

       for which he might reasonably be out of jail within a month. 1 Just as the Supreme Court found in


              1
                Plaintiff’s information page on the Illinois Department of Corrections’ website shows that the
       arrest in question led to his conviction for the manufacture, delivery, or possession with the intent to
       manufacture or deliver between 15 and 100 grams of a substance containing cocaine. 720 ILCS
                                                         10
       reference to the defendant in Robinson, it was highly unlikely in the present matter that plaintiff

       could have returned to his home address within a month of that arrest. Thus, like the State in

       Robinson, defendant here sent notice of forfeiture to an address where plaintiff was almost

       certainly not to be found. Indeed, the total effort required for defendant to confirm that plaintiff

       remained in the custody of Kane County would have been a single phone call—a far cry from the

       “heroic efforts” that the Dusenbery court held to be unnecessary. Dusenbery, 534 U.S. at 170.

¶ 30          Of course, this court need not decide whether defendant knew or should have known that

       plaintiff was actually located at the Kane County jail. For the purposes of this appeal, it is

       sufficient that plaintiff merely alleged that fact, as all factual allegations must be taken as true.

       E.g., Brewer, 2015 IL App (2d) 140706, ¶ 11. Defendant claims in his appellate brief that

       “[T]here is no allegation that the Defendant had actual knowledge that Plaintiff had remained in

       continuous custody in the Kane County Jail.” This claim is incorrect. In his original complaint,

       plaintiff alleged that he remained in continuous custody of the Kane County jail, and further

       alleged that “at all times subsequent to [plaintiff’s] arrest, [defendant] has known, or should have

       known his exact location.”

¶ 31          If, as plaintiff alleges, defendant knew or should have know that plaintiff was in the

       custody of the Kane County jail at the time defendant sent notice of forfeiture to plaintiff’s home

       address, then that notice failed to satisfy the constitutional requirement of due process. Robinson,

       409 U.S. at 39-40. Accordingly, the circuit court’s granting of defendant’s section 2-615 motion

       to dismiss was improper, as plaintiff sufficiently pled a set of facts that would legally entitle him

       to relief. We therefore reverse that ruling and remand for further proceedings—specifically, a


       570/401(a)(2)(A) (West 2008). The sentencing range for that offense is between 6 and 30 years’
       imprisonment, equivalent to a Class X felony. Id.; 730 ILCS 5/5-4.5-25 (West 2008); see also People v.
       Henderson, 2011 IL App (1st) 090923, ¶ 8 (reviewing court may take judicial notice of information on
       the Illinois Department of Corrections’ website).
                                                        11
       hearing and judgment on the merits—not inconsistent with this order. See Porter, 237 Ill. App.

       3d at 304.

¶ 32                                         CONCLUSION

¶ 33          The judgment of the circuit court of Peoria County is reversed and remanded for further

       proceedings.

¶ 34          Reversed and remanded.




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