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In re Forfeiture of $2

November 30, 2001


Appeal from the Circuit Court of Ogle County. No. 99--MR--19; Honorable Stephen C. Pemberton, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley.


Opinion of August 17, 2001, withdrawn.

The State declared a non-judicial forfeiture of property pursuant to section 6 of the Drug Asset Forfeiture Procedure Act (Act) (725 ILCS 150/6 (West 1998)). Petitioner, Darrel W. Barker (whose name also appears in the record as "Darrell W. Barker"), the property's owner, petitioned to vacate the forfeiture, alleging that he did not receive adequate notice of the proceeding. The trial court granted the petition, holding that the State did not accord petitioner due process. The State appeals. We affirm.

The facts are essentially undisputed. On August 9, 1999, petitioner filed his "Motion to Vacate Declaration of Forfeiture" (petition). The petition alleged the following. On May 11, 1999, petitioner was arrested for a drug offense (the criminal case). On May 12, 1999, in case No. 99--OP--53, Gloria Barker, petitioner's wife, obtained an order of protection barring him from their home at 12795 Kennedy Hill Road in Byron. Petitioner has not lived there since May 11, 1999. Petitioner promptly posted bond in the criminal case and was released.

On May 14, 1999, petitioner notified the office of the circuit clerk of Ogle County that he now resided at 628 Kishwaukee Road in Rockford. On June 2, 1999, petitioner and his attorney appeared in court in case No. 99--OP--53. The court dismissed Gloria Barker's petition but ordered that, as a condition of petitioner's bond in the criminal case, he was to have no contact with Gloria Barker.

Petitioner alleged further that the State notified him by mail addressed to 12795 Kennedy Hill Road in Byron that his $2,354 cash was subject to a non-judicial forfeiture. However, petitioner did not know of the attempt to serve him by mail at the Byron address. He did not receive notice until July 9, 1999, when his daughter told him that he had a certified letter at the Byron post office. Petitioner asserted that the State knew that petitioner was barred from the Byron address and from contact with Gloria Barker, who lived there. Therefore, petitioner claimed, he did not receive proper notice of the forfeiture.

The rest of the record reveals the following facts. On May 12, 1999, petitioner posted $10,000 cash bond after he was charged with possession of cannabis with intent to deliver. Petitioner signed the bond form and gave his address as 12795 Kennedy Hill Road in Byron. On May 14, 1999, petitioner filed a note with the circuit clerk of Ogle County. The note stated that petitioner had moved from the Byron address to the Rockford address. At the hearing on petitioner's petition, the trial court observed that this note was "attached to the bond" in the court file.

On May 19, 1999, the State's Attorney sent a "Notice of Pending Forfeiture" (Notice) by certified mail, return receipt requested, to petitioner at the Byron address. Twice, the post office tried unsuccessfully to deliver the Notice. On June 4, 1999, the Notice was returned as "unclaimed." On July 6, 1999, the State's Attorney filed a declaration of forfeiture and sent the Notice by certified mail to petitioner at the Byron address. On July 8, 1999, petitioner signed the return receipt for the Notice. On August 9, 1999, petitioner filed his petition.

In December 1999, the cause proceeded to a hearing. The trial judge observed that, originally, the State's Attorney's office mailed the Notice to the Byron address even though petitioner had already told the circuit court clerk's office of his new address. The State argued that, if petitioner later moved, he had the burden to tell the State his new address. Gloria Barker's civil suit did not relieve him of this burden because the State was not a party to that suit. Generally, the State had no obligation to "try to follow people around and try to figure out where they are." Also, the mere return of the Notice as "unclaimed" did not alert the State to the possibility that petitioner had moved.

Petitioner responded that, until he actually received the Notice, he had never been told that the money seized in May might be forfeited. He maintained that, by promptly notifying the circuit clerk's office of his new address, petitioner did all he could to enable the State to notify him of any forfeiture.

After allowing petitioner to file an affidavit supporting his petition, the court granted the petition. Relying in part on our opinion in People v. Smith, 275 Ill. App. 3d 844 (1995), the court held that petitioner had been denied due process because he did not receive reasonable notice of the pending forfeiture or an opportunity under the Act to object to the forfeiture. The judge explained that the notice was inadequate "[b]ased on the evidence here and the fact that [petitioner] notified the clerk's office of his change of address before the notice went out." The court vacated the forfeiture without prejudice to the State's right to bring a new forfeiture proceeding. The State timely appealed.

On appeal, the State argues that the trial court erred in holding that the State's efforts to notify petitioner of the forfeiture did not satisfy due process. The State asserts that Smith is distinguishable and that petitioner received an adequate opportunity to respond to the forfeiture petition. For the reasons that follow, we disagree with the State and affirm the trial court, although not on the exact grounds on which the trial court relied.

The underlying facts are essentially undisputed. Therefore, whether petitioner received notice in accord with due process is a question of law that we review de novo. See Quantum Pipeline Co. v. ...

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