2020 IL App (1st) 19-0922U FIRST DISTRICT FIRST DIVISION November 23, 2020

No. 1-19-0922

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ex rel. ANITA ALVAREZ, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) No. 15 COFO 3667 v. ) ) Honorable $59,914 UNITED STATES CURRENCY; ) Nichole C. Patton, $53,140 UNITED STATES CURRENCY; ) Judge Presiding. $67,109 UNITED STATES CURRENCY; ) $7,000 UNITED STATES CURRENCY; and ) $36,580 UNITED STATES CURRENCY, ) ) Defendant-Appellant. ) ______________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Justice Pierce concurred in the judgment. Justice Hyman dissented.

ORDER

¶1 Held: Default judicial forfeiture judgment was not void because the State served statutory notice of the forfeiture proceedings to the “owner or interest holder” of the seized property.

¶2 In this civil asset forfeiture case, petitioner Ameen Salaam appeals from the denial of his

motion to vacate a final judgment of judicial forfeiture of $223,743 in United States Currency and

to dismiss the forfeiture complaint. On appeal, Salaam argues that the forfeiture judgment was 1-19-0922

void because the State failed to provide him, as an “interest holder” of the money, with statutory

notice of the forfeiture proceedings. For the reasons that follow, we affirm.

¶3 BACKGROUND

¶4 On September 15, 2015, Chicago Police Officers responded to call about a “suspicious”

white utility van located at the 8600 block of Saginaw in Chicago. Officers arrived at the area and

observed a vehicle matching the “suspicious” vehicle description. The officers “curbed” the

vehicle in the area of 2426 East 83rd Street for no rear vehicle registration light.

¶5 The driver of the “suspicious” vehicle, later identified as Allen Tyler, could not produce

either a valid driver’s license or insurance. Tyler received a citation for “rear plate not being

visible.” During the stop, the officers “smelled a strong odor of cannabis emanating from a large

soft sided bag pulled closed but not locked or zipped on the passenger seat.” The officers

“recovered one clear ziplock bag containing a green leafy substance suspect cannabis and two clear

knotted bags containing a white powdered substance suspect cocaine from the bag.” The officers

also recovered five “large bundles of USC in ziplocked and plastic bags from the bag.”

¶6 While still at the scene, Mohammad Khalid approached the officers and identified himself

“as an employer of” Tyler and “wondered what was going on with his employee.” A license plate

check revealed that the vehicle was owned by Ameen Salaam d/b/a Infinite Heating and Cooling

Refrigeration, located at 2020 N. California Ave., Suite 7, Chicago.

¶7 Tyler was arrested 1 and during a custodial search, $17 and “a silver spoon with brown

substance suspect heroin” were recovered. The police seized 120 grams of cannabis, 84 grams of

1 Tyler was charged with: (1) a class X manufacture and delivery of a controlled substance, (2) a class 1 manufacture and delivery of a controlled substance, (3) a class 3 manufacture and delivery cannabis 30-500 grams, and (4) a class 4 possession of a controlled substance. 2 1-19-0922

cocaine, and five bags containing money in the amount of $59,914, $53,140, $67,109, $7,000, and

$36,580, for a total of $223,743. 2 At the police station, a canine specially trained in the detection

of cannabis and controlled substances began a “search” for the bags containing the money that had

been hidden and gave a positive alert at one of the bags, indicating “that the money had a positive

residual odor of narcotics.”

¶8 On November 12, 2015, the State filed a judicial in rem complaint for forfeiture (725 ILCS

150/9(A) (2014)) of the $223,743 seized during the arrest, asserting that the money was proceeds

from illegal narcotic transactions. See 720 ILCS 550/12 (a)(5) (West 2014) (“all moneys *** used,

or intended to be used, to commit or in any manner to facilitate any violation of [the Cannabis

Control Act]” are subject to forfeiture). The complaint requested “[t]hat all rights and interests of

each and every party claiming an interest in the [five bags of money] be terminated.”

¶9 On that same day, the State served “statutory notice” of the forfeiture proceedings by

certified mail, with a return receipt requested, and regular mail to Tyler at 9135 South Blackstone

Avenue in Chicago, which was his last known address provided at the time of his arrest. 725 ILCS

150/4(1)(B) (West 2014). The certified mail and regular mail were retuned as undeliverable.

Although notice was effective upon mailing, 3 the State also served notice of the forfeiture

2 Two days later on September 17, 2015, CBS Local News reported on the arrest in an article titled, “Duffel Bag Full of Cash, Drugs Found During Traffic Stop.” The article identified Tyler and disclosed that “officers found a duffel bag in the front passenger seat of the vehicle containing $220,000 in cash, 125 grams of marijuana and 85 grams of cocaine.” 3 The version of the statute in effect at the time of service stated that notice “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 2014). Public Act 100-512 § 170, eff. July 1, 2018, amended the statute’s language to reflect the current version of the statute in all material respects. 3 1-19-0922

proceedings by publication in the Daily Law Bulletin to Tyler “and any other unknown owner.” 4

725 ILCS 150/4(2) (West 2014).

¶ 10 No one asserting an interest in the money subject to forfeiture filed an answer or appearance

in the forfeiture proceedings. 725 ILCS 150/9 (E) (West 2014). On January 20, 2016, the trial court

entered an ex parte forfeiture order, resulting in the forfeiture of the money that “was used in the

commission of a criminal offense” under the Cannabis Control Act (720 ILCS 550/12 (West 2014))

“while in possession and control” of Tyler. The trial court found that “each and all of the persons

entitled to notice of seizure and forfeiture were properly notified according to the statutes.”

¶ 11 More than two years later on November 2, 2018, Salaam 5 moved to vacate the default

judgment of forfeiture and dismiss the forfeiture complaint, arguing that the forfeiture order was

“issued without jurisdiction” because the State failed to serve upon him notice of the forfeiture

proceedings. Salaam claimed that as the owner of the vehicle where the $223,743 was seized, he

was an “interest holder” of the money and entitled to notice. The trial court denied the motion,

finding that the court had in rem jurisdiction over the seized controlled substances and money, and

4 The publication stated that a default judgment may be entered if an answer or appearance was not filed “on or before January 18, 2016.” 5 The record reveals that on June 1, 2016, Tyler, while out on bond in this case, was arrested for distribution of cocaine and his case proceeded in federal court. Salaam was Tyler’s co-defendant in the federal criminal case. As part of the federal investigation leading to their arrest, Drug Enforcement Administration agents worked with two “cooperating sources,” who “met and negotiated the sale of cocaine” from Salaam and Tyler. One of the cooperating sources knew Salaam “as a ranking member of the Black P Stone criminal street gang.” On the day of arrest, the cooperating sources went to Salaam’s house to purchase cocaine and Tyler led them downstairs to Salaam, where the narcotics transaction was completed. After they sold the cocaine, Salaam and Tyler left Salaam’s house together and drove away in Salaam’s vehicle. Agents surveilling Salaam’s vehicle conducted an investigative stop, which lead to Salaam’s and Tyler’s arrest. In June of 2017, both Tyler and Salaam pled guilty to the distribution of cocaine charges. On January 30, 2018, the state court criminal charges pending against Tyler referenced in footnote 1 herein were dismissed.

4 1-19-0922

Salaam was not entitled to notice because he was “not an owner or interest holder under the

statute.”

¶ 12 The State elected not to file a brief on appeal. In this case, the record is simple and the error

can be considered without additional briefing. First Capitol Corp. v. Talandis Construction Corp.,

(1976); Direct Auto Insurance Co. v. Koziol,

.

Therefore, this court entered an order on its own motion taking this appeal on appellant’s brief

only.

¶ 13 ANALYSIS

¶ 14 Salaam claims that the trial court erred in denying his motion to vacate because the failure

to serve statutory notice of the judicial forfeiture proceedings upon him as an “interest holder” of

the money violated his due process rights and rendered forfeiture of the money void.

¶ 15 A forfeiture action is a civil in rem proceeding brought against property used in the

commission of a crime. People v. Strong,

(1986). “Currency is subject to

forfeiture when it is derived from the sale of illegal drugs.” People v. $5,970 United States

Currency,

(1996). Under the Drug Asset Forfeiture Procedure Act (Act)

(725 ILCS 150/4 (West 2014)), an “owner or interest holder” of the seized money is entitled to

notice of pending forfeiture.

¶ 16 “Where a court lacks jurisdiction of the parties or the subject matter, or exceeds its statutory

power to act, any resulting judgment is void and may be attacked either directly or indirectly at

any time.” People v. Raczkowski,

(2005). Whether a judgment is void

due to the lack of proper notice presents a legal issue reviewed de novo. McCarthy v. Pointer,

; Deutsche Bank National Trust Co. v. Hall-Pilate, 2011 IL App (1st)

5 1-19-0922

102632, ¶ 12.

¶ 17 Here, Salaam, and not Tyler, is contesting the sufficiency of notice, arguing that “there is

no reason to presume or conclude that Tyler’s possession of the narcotics, or the money, was

exclusive to him, to the exclusion of Salaam.” But the police recovered the illegal narcotics and

$223,743 from a bag “pulled closed” on the passenger seat of the vehicle within reach and in close

proximity to Tyler, who exercised exclusive dominion and control over the bag. See People v.

Schmalz,

(2000) (“[a]ctual possession does not require present personal touching

of the illicit material, but, rather, present personal dominion over it”); People v. Four Thousand &

Eight Hundred Fifty Dollars ($4,850) United States Currency,

(“[o]wnership of personal property, including money, is presumed from the possession of it”).

Salaam was not in the vehicle and did not exercise immediate dominion or control over the bag,

which was not hidden or locked in any compartment of the “work van” and nothing in the record

establishes that Salaam’s or his company’s name was on the bag. See Schmalz,

(possession may be joint “if two or more persons share immediate and exclusive control or share

the intention and power to exercise control”); People v. McIntyre,

(“even in cases where there is joint possession, the evidence must support a conclusion that the

defendant had control, or the ability to exercise control, over the contraband”).

¶ 18 Moreover, there is no evidence in the record that at the time of seizure or at any time

thereafter, Tyler denounced ownership of the $223,743, or that Khalid, Salaam’s other employee

who was present at the scene, asserted any ownership interest in the money on Salaam’s behalf.

See People v. $9,290 in United States Currency,

(2007) (“[t]he issue,

after all, was who owned the property in the box, not who leased the box itself.”). Salaam’s

6 1-19-0922

entitlement to notice would have been different as to the van. Under the facts of this case, the State

complied with the Act’s notice requirement when it served notice upon Tyler as “owner or interest

holder” of the $223,743.

¶ 19 Even assuming arguendo that Salaam was entitled to service of notice, Salaam’s due

process rights were not infringed because he otherwise had actual notice of the forfeiture

proceedings. “The object of notice is to inform the party notified, and if the information is obtained

in any way other than by formal notice, the object of notice is attained.” Campbell v. Cook County

Sheriff's Merit Board,

(1991).

¶ 20 Salaam’s attorney in this appeal was the same attorney who represented him in the federal

criminal case, defended Tyler in the state criminal charges in this case, and “step[ped] up on behalf”

of Tyler in his initial appearance in the federal proceedings. See Stratton v. Wenona Community

Unit District No. 1,

(1990) (“[d]ue 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”). Likewise, Salaam and Tyler had an ongoing relationship

and it stands to reason that Tyler, if not Khalid, would have notified Salaam that $223,743 had

been seized from his “work van.” Notably, if Salaam was an “owner or interest holder,” he did

nothing to protect any interest he had in the $223,743 for more than three years after that money

was seized. 6 See People v. One Residence Located at 1403 E. Parham St.,

(1993) (the purpose of the Act is “to deter individuals from trafficking in controlled substances

6 The statute of limitations for any criminal charges in this case expired on September 15, 2018. 720 ILCS 5/3-5 (b) (West 2014). On November 2, 2018, Salaam filed this action seeking to vacate the judicial forfeiture proceedings asserting his status as an “interest holder” in the money, which “had a positive residual odor of narcotics.” 7 1-19-0922

by imposing a civil penalty in addition to the criminal penalties”).

¶ 21 Although we agree with the dissent that an “owner or interest holder” is entitled to statutory

notice of forfeiture proceedings under the Act before his or her property may be forfeited, our

agreement ends there. The dissent reasons that Salaam was entitled to notice not because he owned

the illegal drugs and $223,743 and not because he was in actual possession or anywhere in the

vicinity of the illegal drugs and $223,743, but because he owned the van, by default, he “might

have a legally recognized interest” in the contents of the bag. Infra ¶ 38. The dissent takes that

position even though, as stated, the bag had no markings identifying it as belonging to Salaam or

his business and the bag was not hidden anywhere inside the van.

¶ 22 Under Illinois case law, individuals entitled to notice under the Act are “owners or interest

holders,” including those individuals in possession of or having a connection to the seized property.

See $9,290 in United States Currency,

(allegations in the complaint that

claimant placed property that was seized in a safety deposit box entitled claimant to notice of

forfeiture proceedings); People ex rel. Kelly v. Sixteen Thousand Five Hundred Dollars ($16,500)

United States Currency,

(petitioners who turned over money

to the police that they received in a package mistakenly mailed to their house were entitled to

notice “as interest holders of the property”); People v. $280,020 in United States Currency,

(claimant’s “possession of the cash gave him a sufficient interest in the

cash to contest its forfeiture, even though he did not claim he owned the cash at the time of the

seizure”). Based on the facts of this case, Salaam’s status as an “owner or interest holder” applies

to the van, not the seized $223,743. For the reasons discussed, “[a]voiding injustice here” does not

require a finding that the judicial forfeiture proceedings as to the $223,743 were void because the

8 1-19-0922

State did not “serve notice on [Salaam] personally or by mail.” Infra ¶ 38; see People ex rel. Devine

v. $30,700.00 United States Currency,

(2002) (“It is important to note,

however, that in examining the sufficiency of notice with regard to due process a court may

consider the character of the proceedings and the practicalities and peculiarities of the case.”).

¶ 23 As a final matter, after deliberations, the majority concluded that this disposition does not

adhere to the standards required for publication as an opinion because this disposition applies the

facts of this case to well-established caselaw. It is the majority’s opinion that this disposition does

not establish a new rule of law or modify, explain or criticize an existing rule of law nor does it

resolve, create, or avoid an apparent conflict of authority within the Appellate Court. See Ill. S. Ct.

Rule 23(a)(1)-(2) (eff. Apr. 1, 2018) (“A case may be disposed of by an opinion only when a

majority of the panel deciding the case determines that” the criteria for disposition as an opinion

is satisfied.)

¶ 24 CONCLUSION

¶ 25 For the reasons stated, we affirm the trial court’s order denying Salaam’s motion to vacate

the default judicial forfeiture judgment and dismiss the forfeiture complaint.

¶ 26 Affirmed.

¶ 27 JUSTICE HYMAN dissenting:

¶ 28 Allen Tyler was working when arrested, driving a van owned by his boss, Ameen Salaam.

The majority concludes (i) Tyler had exclusive control of a bag of money found on the passenger

seat and (ii) Salaam was not entitled to notice of a forfeiture proceeding involving the money

because, at the time of the arrest, he was not in the van. But, as the van’s owner, Salaam had an

interest in its contents that entitled him to notice of the forfeiture proceeding under section 4 of the

9 1-19-0922

Drug Asset Forfeiture Procedure Act (725 ILCS 150/4 (West 2014) (Act)). Because the State opted

to forgo the Act’s notice requirement and failed to provide actual notice to Salaam, the trial court

lacked jurisdiction, making the forfeiture judgment void.

¶ 29 I dissent and would grant the motion to vacate the judgment and dismiss the forfeiture

complaint. I also dissent on the majority issuing this decision as an order under Supreme Court

Rule 23(b) (eff. Apr. 1, 2018).

¶ 30 Owner or Interest Holder

¶ 31 Section 4 of the Act provides that a “complaint for forfeiture or a notice of pending

forfeiture shall be served upon the property owner or interest holder.” 725 ILCS 150/4 (West 2014).

If the owner or interest holder’s address is known, he or she must be served notice by personal

service or certified mail, return receipt requested, along with first class mail. 725 ILCS

150/4(1)(A), (B) (West 2014).

¶ 32 A conviction for unlawful possession of a controlled substance requires the State prove the

defendant had knowledge of the presence of the controlled substance and he or she also had

immediate and exclusive possession or control of the narcotics. People v. Woods,

(2005). The majority finds Salaam was not entitled to notice of the forfeiture proceeding

because the State had every “reason to presume or conclude that Tyler’s possession” of the money

and drugs was exclusive, and that Salaam was not a known “interest holder” entitled to statutory

notice. That belies the facts and ignores the intention and objective of the Act.

¶ 33 Under Illinois law, exclusive possession includes joint possession. People v. Embry,

(1960). If two or more people “share immediate and exclusive control or share the

intention and power to exercise control, then each has possession.” People v. Schmalz,

1-19-0922

75, 82 (2000) (emphasis added). Thus, a person who may have a connection to the property the

government seeks to forfeit must be notified.

¶ 34 The majority addresses Tyler’s exclusive, immediate control of the money based on his

proximity to it, brushing off Salaam’s interest because he was not in the van. Numerous appellate

court decisions, however, explain that some tangible form of ownership must be proved to support

a presumption of a person’s control over the location where drugs are found, even if the person is

on the premises. See, e.g., People v. Blue,

(2003) (evidence of control

insufficient where there were no bills, rent receipts, pieces of clothing, or mail addressed to

defendant at location); People v. Maldonado,

(evidence of

control insufficient where delivery receipt, one piece of junk mail, and one unidentifiable piece of

mail had name of defendant and wife as addressee at location). As the majority notes, a license

plate check showed that Tyler did not own the van, but rather the owner was “Ameen Salaam d/b/a

Infinite Heating and Cooling.” Thus, the State presuming that Tyler exercised exclusive control

over the van and its contents amounts to pure speculation.

¶ 35 Moreover, in the majority’s view, the absence of an identifying marking on the bag provides

a key piece of evidence as to whether Salaam shared the intention and power to exercise control

of the bag. But the absence of a marking is neither fish nor fowl, that is, it neither suggests nor

refutes Salaam’s intention and power to exercise control. Yet, the majority infers significance to it

without offering valid justification.

¶ 36 In addition, Salaam satisfies the “interest holder” provision. The majority finds that to be

an interest holder, a claimant must be in possession of the seized property and cites several cases,

including People ex rel. Kelly v. Sixteen Thousand Five Hundred Dollars ($16,500) United States

11 1-19-0922

Currency,

and People v. $280,020 in United States Currency,

, holding that a party that possesses seized property is an “interest holder”

entitled to notice of the forfeiture proceeding. I agree, but nothing in the Act or the cases the

majority cites states that possession is the only requirement. Indeed, the majority cites no cases

holding that a vehicle owner’s interest only extends to the vehicle and not its contents.

¶ 37 The plain language of the Act does not support the majority’s narrow view of “interest

holder” as one in proximity to or in possession of the seized property. One could reasonably

conclude Salaam had an interest in property in the van. The majority notes that in determining

whether notice has been constitutionally sufficient, “a court may consider the character of the

proceedings and the practicalities and peculiarities of the case.” See People ex rel. Devine v.

$30,700.00 United States Currency,

(2002). Yet, the majority assumes

the $223,743 has no connection whatever to Salaam without considering “the practicalities and

peculiarities,” including who owned the vehicle and had access to it, whether it was a personal or

business vehicle, and whether the property seized could reasonably belong to someone who was

not present in the van. An assumption, and a shallow assumption at that, has deprived an interest

holder of actual notice, a fundamental right in a forfeiture proceeding. Rodriguez v. Brady,

(“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.”).

¶ 38 The law disfavors forfeiture because forfeiture extinguishes all rights in the asset. People

v. Wade,

(2001), as modified (Nov. 30, 2001). So the law must be

narrowly construed to avoid injustice.

Here, that means applying the Act to a potential interest

12 1-19-0922

holder, Salaam, who might have a legally recognized interest as the owner of the van in which the

bag of money was found. The State knew Salaam owned the van. The State knew his address.

Under the Act, Salaam had a right to be heard, and the State had an obligation to serve notice on

him personally or by mail.

¶ 39 The State’s failure to give him actual notice deprived the trial court of jurisdiction over an

interest holder, rendering the judgment void. White v. Ratcliffe,

(1996)

(“judgment entered without proper service of process is void even if the party against whom a

judgment is entered had notice of the proceedings”).

¶ 40 Actual Notice

¶ 41 Because the majority found Salaam was not entitled to notice, it did not address whether

he had actual notice of the forfeiture complaint, an argument the State raised in the trial court. The

State did not file a reply brief, so the State forfeited this issue. Ill. Sup. Ct. Rule 341(h)(7)(i) (eff.

Feb. 6, 2013) (“[p]oints not argued are forfeited”). Nonetheless, the State failed to show Salaam

received actual notice of the forfeiture proceeding. In the trial court, the State argued that Salaam

knew of the forfeiture proceeding because his employee, Mohammad Khalid, witnessed Tyler’s

arrest. The State further argued that if the money, a significant amount, belonged to Salaam or his

company, he would have taken action to recover it. Nonsense.

¶ 42 Even if Salaam knew of Tyler’s arrest, which, for sake of argument, constitutes a reasonable

presumption, that does not amount to actual notice of a separate forfeiture proceeding, which

proceeding was filed two months later. Khalid saw Tyler get arrested and may have known about

the seizure of the money and drugs. And he or Tyler may have told Salaam. So what? Actual notice

means notice as statutorily required.

13 1-19-0922

¶ 43 The majority also notes that Salaam’s attorney in this appeal represented him in the federal

criminal case, defended Tyler in the state criminal charges, and briefly represented Tyler in the

federal proceedings. I fail to see the significance, as we certainly cannot presume that an attorney

shares information about one client’s case with another client. Regardless, the Act, neither directly

nor indirectly, excuses actual notice because of the value of the seized property or that someone

may inform a potential interest holder of the confiscation.

¶ 44 The majority cites no cases holding that knowledge of the seizure constitutes knowledge

of the forfeiture proceeding or satisfies the statutory notice requirement.

¶ 45 Moreover, 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 first must provide

that person with notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust

Co.,

, (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,

(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.”). 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,

(2002) (analyzing as separate issues whether notice was statutorily sufficient and

whether it was constitutionally sufficient). To pass constitutional muster, the notice provided to an

owner of assets subject to civil forfeiture must be “reasonably calculated, under all the

14 1-19-0922

circumstances, to apprise interested parties” of the pending forfeiture. Mullane,

.

In the absence of actual notice of the forfeiture proceeding and the opportunity to be heard, neither

the Act nor the due process clause are satisfied.

¶ 46 The State failed to give Salaam actual notice of the forfeiture proceedings, as mandated by

the Act. This lack of notice voids the State’s forfeiture judgment. White,

-

64.

¶ 47 I would grant Salaam’s motion to vacate the judgment and dismiss the forfeiture complaint.

¶ 48 Designation as Rule 23 Order

¶ 49 Rule 23(a) allows for publication when a majority of the panel concludes that a decision

either “establishes a new rule of law or modifies, explains or criticizes an existing rule of law” or

when “the decision resolves, creates, or avoids an apparent conflict of authority within the

Appellate Court.” Ill. S. Ct. Rule 23(a)(1)-(2) (eff. Apr. 1, 2018). This case should have been

published as an opinion under Supreme Court Rule 23(a) (eff. Apr. 1, 2018) because it meets one

of the Rule’s criteria.

¶ 50 The majority modifies or explains a rule of law, satisfying a Rule 23(a) criterion for

publication. Under the majority opinion, an interest holder entitled to notice must possess the

seized property, though the Act does not equate “interest holders” with those in possession. Further,

the majority holds that notice of seizure of property alone satisfies the Act, even in the absence of

notice of the proceeding. But this holding has no support in (i) the Act, which requires notice of

the “forfeiture proceeding,” (ii) the Illinois Constitution, which requires notice of the proceeding

and an opportunity to be heard before being deprived of property, and (iii) the caselaw. A decision

that limits the definition of “interest holder” under the Act constitutes an attempt to modify or, at

15 1-19-0922

minimum, explain existing law, and obligates publication.

¶ 51 The rule has the effect of defeating the purpose and ends that dissents serve. I propose the

Supreme Court consider amending Rule 23 in the same way it recently amended Rule 352. See Ill.

S. Ct. Rule 352(a) (eff. July 1, 2018). Now Rule 352 requires oral argument at the request of one

justice on the panel. Rule 23 also should require publication as an opinion at the request of one

justice on the panel. Snow & Ice, Inc. v. MPR Management, Inc.,

, ¶¶

27-53 (Hyman, P.J., concurring in part and dissenting in part); Mancini Law Group v. Schaumburg

Police Department, 2020, IL App (1st) 191131-U, ¶¶ 51-58 (Hyman, J., dissenting). A majority’s

ability to bury dissents (and concurrences) in the graveyard of untouchable rulings undermines the

lawyer’s ability to present differing interpretations and applications of law. That the majority

disagrees on the worthiness of its ruling as precedent only attests to the need for amending Rule

23. Why should a majority determine the matter of a decision’s precedential value, when

reasonable minds differ and Supreme Court review is unavailable?

¶ 52 Appellate lawyers believe Rule 23 should be amended to allow citation of Rule 23 (b)

orders as persuasive authority. See https://www.applawyers.org/blog/9057964 (last accessed

November 2, 2020). Rule 23 (b) cases are available online and as easily accessible as the vastly

greater number of Federal and State cases, themselves, like Rule 23(b) orders, potentially pertinent

and persuasive. In a tech-research world, continuing to prohibit citation to relevant, recent, and

contextually helpful local cases makes no sense.

16