                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                           People v. One 1998 GMC, 2011 IL 110236




Caption 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).

                                                -3-
     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

                                                -4-
       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

                                                  -6-
       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


                                                 -8-
       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.

                                                -10-
¶ 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


                                                -11-
       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


                                                -12-
       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).

                                                   -13-
       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”).

                                                    -14-
       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).

                                                   -15-
       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.

                                                -16-
¶ 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

                                                -17-
       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


                                                  -18-
       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”


                                                -19-
       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


                                                 -20-
       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

                                                -21-
       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


                                                 -22-
       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

                                                  -23-
       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.

                                                   -24-
       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

                                                -25-
       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


                                                -26-
       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

                                                  -27-
                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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