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People ex rel Devine v. $30

March 21, 2002

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. RICHARD A. DEVINE, APPELLANT,
v.
$30,700.00 UNITED STATES CURRENCY ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Fitzgerald.

PUBLISHED

Pursuant to the Drug Asset Forfeiture Procedure Act (the Act) (725 ILCS 150/1 et seq. (West 2000)), the State initiated civil forfeiture proceedings against currency totaling $30,700 and $20,811. The State served notice of the forfeiture proceedings upon claimants Rashawn and Ida Carter (Rashawn and Ida) by certified mail, with return receipts requested (725 ILCS 150/4(A)(1) (West 2000)), to their last known addresses and made additional service by publication (725 ILCS 150/4(A)(3) (West 2000)). The circuit court of Cook County entered a default order forfeiting the claimants' interest in the currency. The appellate court reversed the order of the circuit court. 316 Ill. App. 3d 464, 469. We granted the State's petition for leave to appeal (177 Ill. 2d R. 315) and now reverse the judgment of the appellate court. In this appeal, we examine whether claimants received proper notice of civil forfeiture proceedings under the Act and whether such notice satisfied procedural due process.

BACKGROUND

On May 23, 1998, the Chicago police received a tip that a man wearing a white jersey had entered the Drexel National Bank, in Chicago, holding a gun. Responding to the tip, police entered the bank and observed a man wearing a white jacket holding a white cylindrical object under his arm. The police officers approached the man, whom they later identified as Rashawn, and performed a protective pat-down. This pat-down revealed a sock filled with United States currency and additional bundles of currency. The combined amount of currency recovered from Rashawn totaled $30,700.

Following the pat-down, the officers questioned Rashawn and learned that he did not have an existing account at the bank, but that he planned to rent a safety deposit box. Rashawn provided conflicting answers when asked where he obtained the money and was unable to provide an accurate figure of the amount of money he was carrying. The officers subsequently took Rashawn to the police station for further questioning. At the police station, Rashawn admitted that he was a member of the Gangster Disciples street gang, that he was unemployed and did not own the money, and that he "messed up" trying to deposit the money. Rashawn also informed officers that he had been previously arrested for cannabis possession and that he was out on bond pending a hearing in that case. A background check confirmed a prior arrest and revealed an extensive criminal history, including six adult arrests by the Chicago police, a 1992 narcotics possession conviction, the use of multiple aliases, an arrest in Sangamon County, Illinois, for possession of a controlled substance, and the use of separate invalid driver's licenses with addresses in both Chicago and Springfield, Illinois.

The officers performed a "money lineup" with the currency. The money was "hidden" and subsequently "discovered" by a narcotic-sniffing police dog. The police dog positively identified the money as having a residue odor of narcotics.

Officers also discovered in Rashawn's possession three separate safety deposit box keys. Although Rashawn initially denied any knowledge about the keys, he ultimately informed the officers that the keys belonged to "two separate banks in Peoria, Illinois." The officers, however, ascertained that one of the keys belonged to a safety deposit box held at the Drexel National Bank in Chicago. The State asserts that the box was registered to Ida, Rashawn's grandmother, and that the key to the box granted Rashawn access to its contents. On May 26, 1998, the officers obtained and executed a search warrant and recovered $20,811 from the safety deposit box. The officers then performed a separate "money lineup" with a second narcotic-sniffing police dog on the currency totaling $20,811. This second dog also gave a positive indication for the odor of narcotics on the currency.

Five days after the Chicago police executed the warrant, Ida telephoned the police to inquire about the contents of the safety deposit box. When the officer questioned Ida about the safety deposit box, Ida was unable to identify its contents. Ida did not indicate to the police that she possessed any interest in the contents of the safety deposit box. Notwithstanding, officers scheduled two separate appointments with Ida so that she could establish a claim to its contents. Ida failed to keep either appointment with the police.

On August 4, 1998, the State filed a consolidated in rem complaint for forfeiture of the $30,700 and $20,811 pursuant to section 505 of the Illinois Controlled Substances Act (720 ILCS 570/505 (West 2000)). The complaint named Rashawn as a party with interest in the currency. The complaint alleged, inter alia, that the Gangster Disciples street gang is an active criminal organization that participates in the illegal distribution of prohibited substances through its members, who will often use safety deposit boxes to conceal and store proceeds from ongoing drug operations. The complaint further alleged that in obtaining safety deposit boxes these drug dealers often use false names or the identities of relatives and third parties to conceal the true identity of the owner and to hide the location of the proceeds. Finally, the complaint alleged that the gang often uses individuals as couriers to transport currency to safe storage locations.

On the same day, the State mailed notice of the forfeiture proceedings and a copy of the in rem complaint via certified mail, with a return receipt requested, to Rashawn at his last known address on Chicago's south side. The notice was accompanied by an affidavit of an assistant State's Attorney who verified the method of service, identified the party having an interest in the money, and asserted that no claim to the money had been filed. The State concedes that it did not receive a return receipt from the August 4 mailing. The State also made additional service by publication of the forfeiture proceedings on August 7, August 14, and August 21 in the Chicago Daily Law Bulletin. Rashawn did not respond to the notice of forfeiture or appear before the court at the forfeiture proceeding.

Following the mailing to Rashawn and notice by publication, the State made additional efforts to serve notice of the proceedings to additional potential parties of interest. The record shows that on September 2, 1998, the State sent notice of forfeiture by certified mail to Ida at her address, on Chicago's south side, also Rashawn's last known address. As with the previous mailing, the State concedes, it did not receive a return receipt from the September 2 mailing. Ida did not appear before the court at the forfeiture proceeding.

On October 13, 1998, the circuit court entered a default order forfeiting Rashawn's interest and that of all other parties claiming right, title, or interest in the currency. On January 13, 1999, Rashawn and Ida filed a joint motion to vacate the forfeiture, alleging that they never received notice of the forfeiture proceeding. Rashawn provided an affidavit stating that he was incarcerated for unrelated charges in the Vandalia Correction Center beginning July 7, 1998, until his release November 10, 1998. In her affidavit, Ida claimed that she was the owner of the safety deposit box at the Drexel National Bank and never received notice of forfeiture at her residence. The circuit court denied the motion to vacate the forfeiture order.

The appellate court reversed the judgment of the circuit court, holding that the circuit court lacked personal jurisdiction over Rashawn and Ida because they were not properly served in accord with the Act. 316 Ill. App. 3d at 474-75. According to the appellate court, complete service under the Act is accomplished when the State receives a return receipt signed by the addressee. 316 Ill. App. 3d at 469. Moreover, the appellate court held that the State failed to give Rashawn notice required by due process. 316 Ill. App. 3d at 471. This appeal by the State followed.

ANALYSIS

I. Effective Notice Under the Act

As an initial matter, we review whether service is perfected under the Act upon mailing of the notice or, conversely, upon receipt of the certified mail return receipt signed by the addressee. The parties agree that absent proper notice of the forfeiture proceedings, the circuit court lacked jurisdiction and the power to order forfeiture of the currency. The parties also agree that the State never received certified mail return receipts of the notice mailings sent to both claimants. However, the State argues that failure to receive these return receipts does not render the notice defective. Rather, the State argues that service is effective under the Act upon the mere mailing of notice by certified mail, as long as the notifying party had no reason to suspect that the notice would not reach the intended recipient. This matter involves an issue of statutory interpretation, and our review is de novo. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503 (2000).

The Act is a remedial civil sanction enacted for the express purpose of deterring the rising incidence of the abuse and trafficking of substances prohibited by the Illinois Controlled Substance Act (720 ILCS 570/100 et seq. (West 2000)) and the Cannabis Control Act (720 ILCS 550/1 et seq. (West 2000)). See 725 ILCS 150/2 (West 2000). Forfeiture under the Act "encourages owners `to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes.' " In re P.S., 175 Ill. 2d 79, 87 (1997), citing United States v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996). Thus, the Act is designed to serve a remedial purpose and, therefore, is liberally construed to achieve that purpose. 725 ILCS 150/13 (West 2000). Moreover, it is the intent of the legislature that the Act be interpreted in light of "the federal forfeiture provisions contained in 21 U.S.C. 881 as interpreted by the federal courts, except to the extent" the provisions expressly conflict. 725 ILCS 150/2 (West 2000).

The Act contains uniform procedures to accomplish the forfeiture of drug-related assets. 725 ILCS 150/1 et seq. (West 2000)). Non-real property is seized by two different methods depending on the value of the property. Non-real property valuing less than $20,000 is forfeited in a non-judicial forfeiture action. 725 ILCS 150/6 (West 2000). Where the value of non-real property exceeds $20,000, the State shall "institute judicial in rem forfeiture proceedings" in accordance with section 9 of the Act. 725 ILCS 150/6 (West 2000).

The Act outlines the method of notice required to apprise individuals of pending forfeiture proceedings. 725 ILCS 150/4 (West 2000). The method of service depends upon the State's knowledge of the identity and location of the claimant at the time of service. Section 4 of the Act, entitled "Notice to Owner or Interest Holder," provides that, "[i]f the owner's or interest holder's name and current address are known, then [notice or service shall be given] by either personal service or mailing a copy of the notice by certified mail, return receipt requested, to that address." 725 ILCS 150/4(A)(1) (West 2000). The Act requires notice by publication in the event the address or name of the owner or interest holder is unknown. 725 ILCS 150/4(A)(3) (West 2000). Owners or interest holders are obligated to advise the seizing agency of address changes that occur prior to the mailing of notice. 725 ILCS 150/4(A)(1) (West 2000) ("if an owner or interest holder's address changes prior to the effective date of the notice of pending forfeiture, the owner or interest holder shall promptly notify *** of the change in address"). Individuals claiming an interest in the property subject to forfeiture may file a claim to the property within "45 days after the effective date of notice." 725 ILCS 150/6(C)(1) (West 2000). Further, the Act provides when notice is effective: "Notice served under this Act is effective upon personal service, the last date of publication, or the mailing of written notice, whichever is earlier." 725 ILCS 150/4(B) (West 2000). If parties fail to appear at the forfeiture proceedings, "property may be subject to forfeiture even if no one appears to claim it." In re P.S., 175 Ill. 2d at 88.

In order to determine when mailed notice is perfected under the Act, we are bound by longstanding principles of statutory construction. We must give effect to legislative intent, which begins with the plain language of the statute. People v. Woodard, 175 Ill. 2d 435, 443 (1997); Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 378 (1996); People ex rel. Baker v. Cowlin, 154 Ill. 2d 193, 197 (1992). Where clear and unambiguous, statutory language must be enforced as enacted, and a court may not depart from its plain language by reading into it exceptions, limitations, or conditions not expressed by the legislature. Woodard, 175 Ill. 2d at 443. Moreover, where language is express and plain, a court must not search for subtle intentions of the legislature. Woodard, 175 Ill. 2d at 443.

In light of the express language contained in section 4 of the Act, we hold that service of notice by mailing is perfected when the notice is deposited in the mail, provided the State complies with the mailing procedures set forth in the Act. Section 4(B) expressly states, "[n]notice served under this Act is effective upon *** the mailing of written notice ***." 725 ILCS 150/4(B) (West 2000). The meaning of this provision is clear and unambiguous. The Act does not condition the effectiveness of notice upon receipt of the return receipt signed by the addressee, and this court will not rewrite the Act to create this requirement.

Claimants argue that the inclusion of the "return receipt" language implies that the legislature intended that notice would not be perfected unless and until the State receives the return receipt. This argument fails to consider the structure of section 4, which, when plainly read, supports another conclusion. Section 4(A) directs the State to issue notice of forfeiture proceedings by specific methods-personal service, publication, or postal delivery. Essentially, section 4(A) directs how notice shall be given, or by what means notice must be served. Where postal delivery is required, section 4(A) requires service by certified mail with a return receipt requested. In contrast, section 4(B) fixes when service is complete. Service is effective "upon personal service, the last date of publication, or the mailing of written notice, whichever is earlier." (Emphasis added.) 725 ILCS 150/4(B) (West 2000). The return receipt requirement is omitted from the "when" provision of section 4(B).

Clearly, our legislature is able to expressly condition service upon receipt of the signed return receipt. Other enactments expressly demand a return receipt to complete service. See, e.g., 225 ILCS 115/18 (West 2000) (Veterinary Medicine and Surgery Practice Act of 1994) (notice is given to the owner "by certified mail, return receipt requested, and shall allow a period of 7 days to elapse after the receipt is returned before disposing of such animal"); 705 ILCS 405/2-30(1)(a) through (1)(c) (West 2000) (Juvenile Court Act of 1987) ("[t]he return receipt, when returned to the clerk, shall be attached to the original notice, and shall constitute proof of service"); 750 ILCS 25/10(a)(1) (West 1998) (Expedited Child Support Act of 1990) ("[i]f service is made by certified mail, the return receipt shall constitute proof of service"); 765 ILCS 1033/15(b) (West 1998) (Museum Disposition of Property Act) ("[n]notice is deemed given if the museum receives, within 60 days of mailing the notice, a return receipt"). Therefore, based upon our principles of statutory construction and the clear difference in wording between sections 4(A) and 4(B), we must construe the omission of the return receipt requirement from section 4(B) as intentional. See People v. Parvin, 125 Ill. 2d 519, 525 (1988) (the inclusion of specific language in one provision and the omission in another provision evinces legislative intent to refrain from imposing the requirement); see also People v. Keene, 296 Ill. App. 3d 183, 189-90 (1998).

Citing Avdich v. Kleinert, 69 Ill. 2d 1 (1977), the appellate court reasoned that the mere inclusion of a return receipt requirement in any portion of section 4 implies that the return of the receipt is required for notice to be effective. 316 Ill. App. 3d at 469. Specifically, the appellate court stated, "[t]hat the party giving notice must receive a return receipt signed by the addressee in order to accomplish service is a well-established requirement in Illinois law." 316 Ill. App. 3d at 469. Avdich is not authority for the proposition that all enactments which contain the "return receipt" requirement demand return of the receipt to perfect service. In fact, Avdich, like the enactments previously referred to, illustrates our legislature's ability to expressly condition service upon receipt of the signed receipt. In Avdich, we considered the notice requirement under the forcible entry and detainer statute. See 735 ILCS 5/9-211 (West 2000). As in the instant matter, the parties in Avdich disputed whether the mere mailing of notice by certified mail constituted service or whether the statute required receipt of the return receipt in order to complete service. The forcible entry and detainer statute states that "[a]ny demand may be made or notice served *** by sending a copy of said notice to the tenant by certified or registered mail, with a returned receipt from the addressee." 735 ILCS 5/9-211 (West 2000). Based upon this language, we held that the "statute clearly indicates a legislative intent that service of a notice by certified mail is not to be considered complete until it is received by the addressee." Avdich, 69 Ill. 2d at 9. However, the forcible entry and detainer statute conditions effectiveness of notice upon "a returned receipt from the addressee." By contrast, the Act only requires "with a return receipt requested." If we afford the language in each provision its plain and ordinary meaning, one demands the return of the receipt while the other merely demands a request.

Claimants argue that the only advantage of certified mail with a return receipt requested is to provide proof of delivery. Proof of delivery is not the only discernable advantage. Rather, the inclusion of a return receipt request requirement in the statute serves more than one purpose. According to the certified mailing receipt contained in the record, each piece of certified mail is assigned a tracking number, and a record of all deliveries is kept by the postal service for a period of two years. This information grants the sender actual proof of mailing. This proof of mailing is objective evidence for the State during forfeiture proceedings. This proof of mailing, therefore, facilitates overall enforcement of the Act. This mailing method also serves a claimant's interest. Parties who receive certified mail with a return receipt requested are alerted to the importance of its contents and are less likely to discard the mail upon receipt without reading its contents.

Finally, we must also consider that the Act is remedial in nature; therefore, the Act warrants liberal construction to achieve the overall purpose of the statute. 725 ILCS 150/2, 13 (West 2000). The appellate court's holding, that the State must receive a return receipt signed by the addressee, fails to recognize the circumstances which often accompany forfeiture. It is frequently the case that currency is seized from individuals who provide false address information to the officers upon seizure. In this case, we observe that at the time of seizure, Rashawn held licenses with two alias addresses in the State of Illinois. Moreover, as noted by the State during oral arguments and in its complaint, it is also common that individuals in possession of the currency at the time of seizure are merely couriers used to transport the currency. These individuals have no interest in receiving the certified mail and, therefore, refuse to sign for the mail upon its arrival. Conditioning the completion of notice upon receipt of the return receipt is a condition not expressed by the legislature, and given the realities of what often occurs in these cases, an obstacle to the enforcement of the Act. The statute provides for mailing of notice to the last known address of the owner or interest holder. It does not condition this mailing upon the State's investigation into the accuracy of this information. In fact, it expresses the contrary: the owner or interest holder is obligated to notify the seizing agency of his or her change in address occurring prior to the mailing of notice. 735 ILCS 150/4(A)(1) (West 2000). The appellate court's holding renders this obligation superfluous. See Yang v. City of Chicago, 195 Ill. 2d 96, 106 (2001) "[w]e construe a statute so that no term is rendered superfluous or meaningless, when the statute is examined as a whole").

The record shows that on August 4, 1998, pursuant to section 4(A)(1) of the Act the State mailed notice to Rashawn via certified mail with a return receipt requested. The State mailed this notice pursuant to information supplied by Rashawn on the date of seizure, May 23, 1998. The record does not show that Rashawn notified the State of a change in his address. Pursuant to our holding, we find that service of this notice was complete upon its mailing, August 4, 1998. The record also shows that pursuant to section 4(A)(1), on September 4, 1998, the State mailed ...


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