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                                 Appellate Court                          Date: 2017.07.28
                                                                          12:25:39 -05'00'




                  Rodriguez v. Brady, 2017 IL App (3d) 160439



Appellate Court   ESTEBAN CARRILLO RODRIGUEZ, Plaintiff-Appellant, v.
Caption           JERRY BRADY, in His Official Capacity as Peoria County State’s
                  Attorney, Defendant-Appellee.



District & No.    Third District
                  Docket No. 3-16-0439



Filed             June 6, 2017



Decision Under    Appeal from the Circuit Court of Peoria County, No. 16-SC-478; the
Review            Hon. Katherine S. Gorman, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Esteban Rodriguez, of Hinton, Oklahoma, appellant pro se.
Appeal
                  Jerry Brady, State’s Attorney, of Peoria (Benedict G. Ciravolo and
                  Larry M. Evans, Assistant State’s Attorneys, of counsel), for appellee.



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

¶1       Plaintiff, Esteban Carrillo Rodriguez, filed a complaint in small claims court seeking the
     return of money that had been seized from him upon arrest and subsequently subjected to civil
     forfeiture. Defendant is Jerry Brady, the Peoria County State’s Attorney, whose office
     executed the civil forfeiture. Plaintiff argued in his complaint that the notice of forfeiture sent
     to his home address was constitutionally insufficient where defendant knew or should have
     known that plaintiff was in the Kane County jail after being arrested in Peoria County.
     Defendant filed a motion to dismiss the small claim, which the circuit court granted. We
     reverse and remand for further proceedings.

¶2                                               FACTS
¶3       Plaintiff filed a small claims complaint in the Peoria County circuit court against
     defendant. In the complaint, plaintiff alleged that “without proof of notice and contrary to
     statute, the Peoria County State’s Attorney deprived the Plaintiff of his $5,335.00.” Within the
     complaint, plaintiff made a number of supporting factual allegations. Plaintiff alleged that he
     was arrested on October 7, 2008, in Peoria County, pursuant to a Kane County warrant.
     Plaintiff was in possession of $5335 at the time of his arrest, and that money was seized by
     arresting officers. After plaintiff had made numerous attempts to recoup his seized assets, the
     Kane County circuit court ordered the return of the money on January 30, 2014. Subsequently,
     plaintiff received a letter from the Kane County State’s Attorney’s office notifying him that the
     Aurora police department would be returning his money.
¶4       On March 5, 2014, the Kane County State’s Attorney’s office filed a motion seeking
     vacatur of the circuit court’s previous order. In the motion, the Kane County State’s Attorney’s
     office alleged that the Peoria County State’s Attorney had executed a declaration of forfeiture
     on the money in question prior to the court’s order. The circuit court granted the motion.
     Plaintiff subsequently wrote to the Peoria County circuit court, seeking a copy of the notice of
     forfeiture that was allegedly mailed to him. In response, plaintiff received a letter from the
     Peoria County State’s Attorney’s office informing him that notice of forfeiture had been
     mailed to him on November 19, 2014. The correspondence included a copy of the declaration
     of forfeiture, as well as a copy of the return receipt of the certified mailing of the notice of
     forfeiture. The declaration of forfeiture showed that notice was first mailed on November 11,
     2008. The copy of the certified mail envelope showed that attempts were made on three dates
     to deliver the notice to plaintiff at 18 W. 204 Knollwood Lane in Villa Park.
¶5       Plaintiff further alleged in his complaint that he had remained in continuous custody from
     the date of his arrest in October 2008. After receiving the above correspondence from the
     Peoria County State’s Attorney’s office, plaintiff contacted the Kane County jail, where he was
     residing throughout November 2008. The jail had no record of any mail addressed to plaintiff.
¶6       Plaintiff concluded that the Peoria County State’s Attorney’s notice of forfeiture was
     insufficient, where the office knew or should have known that plaintiff was in jail and not in his
     home in Villa Park. Absent proper notice, plaintiff argued, the executed forfeiture of the $5335
     in question was nothing more than a conversion.
¶7       Plaintiff attached to his complaint a number of exhibits that verified his factual allegations.
     The exhibits included the judgment from the Kane County circuit court ordering the return of


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       $5335, as well as a copy of the letter sent by the Kane County State’s Attorney’s office to
       plaintiff informing him that the Aurora police department would be returning the money. Also
       attached was the letter from the Peoria County State’s Attorney’s office, as well as copies of
       the declaration of forfeiture and the notice of forfeiture and its return receipt.
¶8          Defendant filed a motion to dismiss plaintiff’s complaint. In the motion, defendant alleged
       that plaintiff was arrested in Peoria County on October 7, 2008, “pursuant to a warrant by
       deputy U.S. Marshals and Aurora, IL law enforcement personnel.” The motion further alleged
       that $5335 was seized from plaintiff as suspected proceeds of a drug transaction. Plaintiff gave
       his address to arresting officers as 18 W. 204 Knollwood Lane, Villa Park, Illinois.
¶9          Defendant’s allegations were supported by an Aurora police department report, which
       defendant attached to his motion. That police report described in detail a joint operation
       between Aurora police officers and United States Marshals to apprehend plaintiff in Peoria
       County. At the time of the arrest, plaintiff was in possession of $5335 in cash. The report
       showed that plaintiff was transported to the Aurora police department upon his arrest. The
       $5335 was placed into the evidence safe at the Aurora police department. The police report
       explained that plaintiff had been the “middle man for a drug transaction involving 5 kilos of
       cocaine.” An inventory of seized property form, also attached to defendant’s motion, showed
       that the money was later deposited into Old Second National Bank in Aurora. That same form
       listed “Peoria County” as a 25% participant in the seizure.
¶ 10        Defendant alleged that notice of forfeiture was sent to plaintiff at the given address, in
       compliance with statute. Following a 45-day period, the money in question was declared
       forfeited. Defendant concluded: “the Plaintiff was notified in accordance with the statute and
       he no longer has a basis in law for the return of that money to him.”
¶ 11        Following a telephonic conference between the court, plaintiff, and counsel for defendant,
       the court granted defendant’s motion to dismiss. The ensuing written order declares that the
       court “grants the Defendant’s Motion to Dismiss.” Notably, defendant’s motion to dismiss did
       not specify a particular section of the civil code under which dismissal was sought. Nor did the
       circuit court’s order dismissing the complaint make such a specification.

¶ 12                                          ANALYSIS
¶ 13       On appeal, plaintiff argues that the circuit court erred in dismissing his complaint. He
       maintains that defendant failed to provide legally sufficient notice of forfeiture where notice
       was sent to an address at which defendant knew or should have known plaintiff was not
       residing.

¶ 14                                     I. Procedural History
¶ 15      Initially, we must address the procedural posture of the case. Illinois Supreme Court Rule
       286(b) (eff. Aug. 1, 1992) provides:
              “In any small claims case, the court may, on its own motion or on motion of any party,
              adjudicate the dispute at an informal hearing. At the informal hearing all relevant
              evidence shall be admissible and the court may relax the rules of procedure and the
              rules of evidence. The court may call any person present at the hearing to testify and
              may conduct or participate in direct and cross-examination of any witness or party. At



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               the conclusion of the hearing the court shall render judgment and explain the reasons
               therefor to all parties.”
       Here, the record contains no indication that either party moved for an informal adjudication.
       Nor does the circuit court’s written order provide any indication that the court did so on its own
       motion. Indeed, the court’s order specified that it was granting defendant’s motion to dismiss,
       rather than adjudicating the issue on the merits.
¶ 16       The Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq. (West 2014)) provides two
       methods by which a complaint may be dismissed on the pleadings. Section 2-619 of the Code
       allows a defendant to move for dismissal of an action on the pleadings based on certain defects
       or defenses. 735 ILCS 5/2-619 (West 2014). Section 2-615 of the Code allows a defendant to
       move to dismiss an action on the grounds that the complaint is legally insufficient. 735 ILCS
       5/2-615 (West 2014).
¶ 17       In the present case, defendant did not raise any of the defects or defenses contemplated by
       section 2-619—such as lack of jurisdiction or statute of limitations—in his motion to dismiss.
       Instead, defendant argued that plaintiff had failed to state a claim because the pleadings
       showed that defendant had properly complied with the statutory notice requirements. As
       defendant challenged the legal sufficiency of plaintiff’s complaint, we construe that motion to
       dismiss as a section 2-615 motion.
¶ 18       A motion to dismiss brought under section 2-615 of the Code challenges the legal
       sufficiency of a complaint. Wilson v. County of Cook, 2012 IL 112026, ¶ 14. “The critical
       inquiry in deciding a section 2-615 motion to dismiss is whether the allegations of the
       complaint, considered in a light most favorable to the plaintiff, are sufficient to state a cause of
       action upon which relief can be granted.” Sheffler v. Commonwealth Edison Co., 2011 IL
       110166, ¶ 61. We review de novo an order granting a motion to dismiss pursuant to section
       2-615. Wilson, 2012 IL 112026, ¶ 14. In conducting such review, all well-pleaded facts are
       assumed to be true. E.g., In re Estate of Brewer, 2015 IL App (2d) 140706, ¶ 11.
¶ 19       The nature of small claims court also dictates that pleadings in such courts shall be liberally
       construed. Porter v. Urbana-Champaign Sanitary District, 237 Ill. App. 3d 296, 300 (1992).
       “All that is necessary in a small claims case for the complaint to be sufficient is that it clearly
       notify the defendant of the nature of plaintiff’s claim.” Id. (citing Miner v. Bray, 160 Ill. App.
       3d 241, 243 (1987)). As the Fourth District has held, “In many [small claims] cases, it is more
       efficient for the trial court to try the case and decide it on the merits than it is to consider
       motions of the parties attacking the opponent’s pleadings, especially in light of the less formal
       pleading requirements in small claims cases.” Id. at 303-04.

¶ 20                                         II. Notice Requirement
¶ 21        The facts of the present case appear to be undisputed. The parties agree that defendant sent
       notice of forfeiture to 18 W. 204 Knollwood Lane, Villa Park, Illinois, in November 2008.
       That address was the address provided by plaintiff at the time of his arrest. The only question is
       whether that notice was legally sufficient. The propriety of the circuit court’s order thus turns
       on the legal question of sufficient notice. See id. at 300 (“In determining the propriety of the
       trial court’s order, the first issue is to determine the question of law ***.”).
¶ 22        The Drug Asset Forfeiture Procedure Act (Act) sets forth the procedures that must be
       followed when an agency seeks to execute civil forfeiture on assets seized in relation to certain


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       drug offenses. 725 ILCS 150/1 et seq. (West 2008). Specifically, section 4 of the Act delineates
       the steps to be taken in providing notice of forfeiture to the owner or interest holder of the
       seized assets. 725 ILCS 150/4 (West 2008). The section provides in part:
               “(A) Whenever notice of pending forfeiture or service of an in rem complaint is
               required under the provisions of this Act, such notice or service shall be given as
               follows:
                       (1) If the owner’s or interest holder’s name and current address are known, then
                   by either personal service or mailing a copy of the notice by certified mail, return
                   receipt requested, to that address. For purposes of notice under this Section, if a
                   person has been arrested for the conduct giving rise to the forfeiture, then the
                   address provided to the arresting agency at the time of arrest shall be deemed to be
                   that person’s known address.” (Emphasis added.) 725 ILCS 150/4(A)(1) (West
                   2008).
       See also 725 ILCS 150/4(B) (West 2008) (“Notice served under this Act is effective upon
       personal service, the last date of publication, or the mailing of written notice, whichever is
       earlier.”).
¶ 23       To be sure, defendant complied with the requirements set forth in section 4(A)(1) of the
       Act. Upon his arrest, plaintiff provided officers with his Villa Park address. Under the Act, that
       address is deemed to be his “known address,” and the address to which notice must be sent.
       725 ILCS 150/4(A)(1) (West 2008). Because defendant subsequently mailed the notice of
       forfeiture to that address, via certified mail with a return receipt requested, defendant was
       plainly in compliance with the Act.
¶ 24       This conclusion, however, does not end our analysis. The issue of notice is, at bottom, a
       constitutional issue. Specifically, the due process clauses of both the United States and Illinois
       Constitutions dictate that where the government attempts to deprive a person of property, it
       must first provide that person with notice and an opportunity to be heard. E.g., Mullane v.
       Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and
       fundamental requirement of due process in any proceeding which is to be accorded finality is
       notice reasonably calculated, under all the circumstances, to apprise interested parties of the
       pendency of the action and afford them an opportunity to present their objections.”); Stratton v.
       Wenona Community Unit District No. 1, 133 Ill. 2d 413, 432 (1990) (“Due process entails an
       orderly proceeding wherein a person is served with notice, actual or constructive, and has an
       opportunity to be heard and to enforce and protect his rights.”). Thus, compliance with the
       Act’s notice requirements is irrelevant if the notice is constitutionally deficient. See People
       ex rel. Devine v. $30,700.00 United States Currency, 199 Ill. 2d 142, 148, 155 (2002)
       (analyzing as separate issues whether notice was statutorily sufficient and whether it was
       constitutionally sufficient). As the United States Supreme Court has stated: “[W]e have
       required the government to consider unique information about an intended [notice] recipient
       regardless of whether a statutory scheme is reasonably calculated to provide notice in the
       ordinary case.” Jones v. Flowers, 547 U.S. 220, 230 (2006).
¶ 25       In order to pass constitutional muster, the notice provided to an owner of assets subject to
       civil forfeiture must be “reasonably calculated, under all the circumstances, to apprise
       interested parties” of the pending forfeiture. Mullane, 339 U.S. at 314. In other words: “The
       means employed [in providing notice] must be such as one desirous of actually informing the
       absentee might reasonably adopt to accomplish it.” Id. at 315. Due process does not require the

                                                   -5-
       State to successfully provide actual notice but merely attempt to do so. Dusenbery v. United
       States, 534 U.S. 161, 170 (2002). In determining whether given notice has been
       constitutionally sufficient, “a court may consider the character of the proceedings and the
       practicalities and peculiarities of the case.” Devine, 199 Ill. 2d at 156.
¶ 26        In Dusenbery, the agency seeking to commence forfeiture proceedings sent notice of
       forfeiture to the prison where it knew the defendant to be incarcerated. Dusenbery, 534 U.S. at
       164. The defendant, however, claimed that he never actually received that notice and argued
       that the government bore the burden of actually securing delivery of notice. Id. at 169. As an
       example, defendant contended that due process required a prison official to watch him open the
       notice and to cosign the receipt. Id. at 171. Rejecting this argument, the United States Supreme
       Court wrote: “the Due Process Clause does not require such heroic efforts by the Government;
       it requires only that the Government’s effort be ‘reasonably calculated’ to apprise a party of the
       pendency of the action” Id. at 170 (quoting Mullane, 339 U.S. at 314).
¶ 27        The United States Supreme Court has held that in the context of forfeiture proceedings,
       where the government knows or should know where the owner of the seized property is
       located, notice intentionally sent to another location fails to satisfy due process requirements.
       Robinson v. Hanrahan, 409 U.S. 38, 39-40 (1972) (per curiam). The facts in Robinson are
       quite similar to those in the case at hand. In that case, the defendant was arrested and held in the
       Cook County jail for four months. Id. at 38. In that time, the State instituted forfeiture
       proceedings, mailing notice of forfeiture to the defendant’s home, rather than to the jail. Id.
       The Court found the notice insufficient, concluding:
                    “In the instant case, the State knew that appellant was not at the address to which
                the notice was mailed and, moreover, knew also that appellant could not get to that
                address since he was at that very time confined in the Cook County jail. Under these
                circumstances, it cannot be said that the State made any effort to provide notice which
                was ‘reasonably calculated’ to apprise appellant of the pendency of the forfeiture
                proceedings.” Id. at 40.
¶ 28        The Illinois Supreme Court in Devine reaffirmed the basic principal set forth in Robinson
       but clarified that the element of knowledge on the part of the government was the key to any
       such analysis. Devine, 199 Ill. 2d at 159. After discussing a number of cases, including
       Robinson, in which courts had found notice insufficient on similar fact patterns, the court
       concluded: “[W]e find one critical factor present which is absent in the instant matter: the
       notifying party knew the claimant’s name and address and failed to serve notice to that
       address.” Id.
¶ 29        In the present case, the inventory of seized property form listed Peoria County as a 25%
       participant in plaintiff’s arrest. Peoria County surely knew or should have known that plaintiff
       was being transported back to Kane County following his arrest in Peoria County. Moreover,
       Peoria County, as a 25% participant in an operation that included United States Marshals,
       surely knew that plaintiff was being arrested for a serious drug offense rather than some minor
       offense for which he might reasonably be out of jail within a month. 1 Just as the Supreme

           1
            Plaintiff’s information page on the Illinois Department of Corrections’ website shows that the
       arrest in question led to his conviction for the manufacture, delivery, or possession with the intent to
       manufacture or deliver between 15 and 100 grams of a substance containing cocaine. 720 ILCS
       570/401(a)(2)(A) (West 2008). The sentencing range for that offense is between 6 and 30 years’

                                                      -6-
       Court found in reference to the defendant in Robinson, it was highly unlikely in the present
       matter that plaintiff could have returned to his home address within a month of that arrest.
       Thus, like the State in Robinson, defendant here sent notice of forfeiture to an address where
       plaintiff was almost certainly not to be found. Indeed, the total effort required for defendant to
       confirm that plaintiff remained in the custody of Kane County would have been a single phone
       call—a far cry from the “heroic efforts” that the Dusenbery court held to be unnecessary.
       Dusenbery, 534 U.S. at 170.
¶ 30       Of course, this court need not decide whether defendant knew or should have known that
       plaintiff was actually located at the Kane County jail. For the purposes of this appeal, it is
       sufficient that plaintiff merely alleged that fact, as all factual allegations must be taken as true.
       E.g., Brewer, 2015 IL App (2d) 140706, ¶ 11. Defendant claims in his appellate brief that
       “[T]here is no allegation that the Defendant had actual knowledge that Plaintiff had remained
       in continuous custody in the Kane County Jail.” This claim is incorrect. In his original
       complaint, plaintiff alleged that he remained in continuous custody of the Kane County jail,
       and further alleged that “at all times subsequent to [plaintiff’s] arrest, [defendant] has known,
       or should have known his exact location.”
¶ 31       If, as plaintiff alleges, defendant knew or should have know that plaintiff was in the
       custody of the Kane County jail at the time defendant sent notice of forfeiture to plaintiff’s
       home address, then that notice failed to satisfy the constitutional requirement of due process.
       Robinson, 409 U.S. at 39-40. Accordingly, the circuit court’s granting of defendant’s section
       2-615 motion to dismiss was improper, as plaintiff sufficiently pled a set of facts that would
       legally entitle him to relief. We therefore reverse that ruling and remand for further
       proceedings—specifically, a hearing and judgment on the merits—not inconsistent with this
       order. See Porter, 237 Ill. App. 3d at 304.

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

¶ 34       Reversed and remanded.




       imprisonment, equivalent to a Class X felony. Id.; 730 ILCS 5/5-4.5-25 (West 2008); see also People v.
       Henderson, 2011 IL App (1st) 090923, ¶ 8 (reviewing court may take judicial notice of information on
       the Illinois Department of Corrections’ website).

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