The opinion of the court was delivered by: Justice Thomas
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.
¶ 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.
¶ 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 ordinance.*fn1 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 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 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 post-seizure 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 (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.
¶ 12 I. Propriety of Section 2-619 Motion to Attack
¶ 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 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 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 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 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 post-seizure 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 post-seizure 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 post-seizure 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.
¶ 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 post-seizure 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 post-seizure hearing at a meaningful time requires only the forfeiture proceeding, it does not also require a probable cause hearing. Accordingly, we ...