Alvarez v. Smith

Petitioner, Anita Alvarez (“Alvarez”), State’s Attorney for Cook County, Illinois, argues at the outset that the existing civil forfeiture procedure outlined in DAFPA meets constitutional due process requirements and any additional procedures would unduly burden law enforcement. Respondents, Chermaine Smith, et al. (“Smith”), counter that the existing procedure violates due process because it has the result of depriving potentially innocent property owners of valuable personal property without an opportunity to contest the seizure within a “meaningful time.”

Controlling Legal Standard

The central conflict between the parties concerns the controlling legal standard. Alvarez urges the Court to view this case in light of its existing civil forfeiture jurisprudence. Alvarez stresses that the Court has repeatedly held that civil forfeiture proceedings satisfy due process, provided that they take place within a reasonable time period. Further, Alvarez argues the appropriate evaluation of reasonableness comes from the “speedy trial” test articulated by the court in Barker v. Wingo.

In Barker, the Supreme Court held that courts must weigh four factors when determining whether a criminal trial was “speedy” for Sixth Amendment purposes: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s interest in having a speedy trial, and (4) the potential prejudice to the defendant resulting from the delay. Furthermore, the Court rejected the idea of setting a fixed timeline, and held that whether or not the Sixth Amendment is satisfied must be determined on an ad hoc basis. Alvarez, citing two civil forfeiture cases where the court applied Barker (United States v. $8,850 and United States v. Von Neumann), urges that the same analysis should apply here. Under $8,850, Von Neumann, and Barker, Alvarez contends the civil forfeiture procedures outlined in DAFPA are facially constitutional.

Smith counters that the Barker speedy trial test is inappropriate because it is limited to evaluating the Sixth Amendment rights of criminal defendants, and not the due process rights of property owners in civil proceedings. Rather, Smith urges the Court to apply the more general due process test from Mathews v. Eldridge.

In Mathews, the Supreme Court held that in evaluating whether or not a particular procedure satisfies due process, courts must perform a three part balancing test, weighing the interests of the individual in retaining their property, the probable value, if any, of additional procedural safeguards, and the government interest in efficient adjudication. Smith argues that the Supreme Court has previously applied Mathews to evaluate civil forfeiture proceedings, and that Mathews should control here.

However, Alvarez distinguishes Good on the grounds that it was expressly limited to the civil forfeiture of real property (i.e. land), as opposed to the personal property (ex. cars, cash, etc.) at issue here. Smith counters that Good contains no such limitation, and the question of what type of property forfeited relates only to how the Mathews factors are applied, not if the test applies at the outset.

Whether or not Mathews ultimately applies, both parties contend that they would prevail under the Mathews test. Alvarez argues that the government interest in using civil forfeiture as an investigative tool outweighs the private interest at stake here—the temporary loss of the use of a car and money. In support, Alvarez notes that even the plaintiff in Mathews did not prevail under the Mathews test, where the Court held that due process did not entitle beneficiaries of disability payments continued benefits during the time period they were challenging discontinuation of those benefits.

Smith, citing Krimstock, argues that the Second Circuit has already applied Mathews to evaluate a similar New York civil forfeiture law, and found that additional process was not only required, but did not impose a substantial burden on government interests. Furthermore, Smith argues that in cases where courts have neglected to apply Mathews to civil forfeiture proceedings, property owners have had a much broader array of post-seizure, pre-proceeding remedies available to challenge the initial validity of the seizure. Because Illinois law recognizes an “innocent owner” exception to civil forfeiture in the first place, Smith argues that failing to allow innocent owners to assert this defense at some earlier stage facially violates due process.

Alvarez counters that there are a wide variety of post-seizure pre-proceeding remedies under Illinois law, including the ability of property owners to petition the State’s Attorney for the return of wrongfully seized property. Additionally, Alvarez argues that courts have broad equitable power to intervene if police exceed their authority. Finally, Alvarez contents that DAFPA contains an even shorter timeline for initiating proceedings than its widely upheld federal counterpart, CAFRA. Smith disputes these contentions, and points to a number of CAFRA provisions unavailable to property owners under DAFPA, including the ability of property owners to post bond or file motions in criminal proceedings.

Form of Additional Proceedings

The parties also disagree about what form any additional proceeding would take. In Alvarez’s view, any post-seizure hearing would effectively be a full civil forfeiture proceeding on a shorter timeline. This would result in the state being forced to present its case without the benefit of full discovery. Without discovery, Alvarez contends, the state would likely be unable to locate the true owners of property in many cases, which could actually interfere with the rights of legitimate innocent owners. Furthermore, Petitioner suggests that forcing the state to present its evidence in a civil forfeiture proceeding at an early stage in an ongoing criminal investigation could interfere with law enforcement’s ability to collect and retain evidence. While recognizing that cars do provide people with mobility, which is an important aspect of liberty, Alvarez argues it is improper to equate this property interest with a true liberty interest for due process purposes. As such, Alvarez concludes that any proposed post-seizure pre-proceeding remedy is unnecessary and an undue burden on the state.

Taking a different view, Smith envisions a more modest remedy, short of a full civil forfeiture proceeding. Noting that the Seventh Circuit merely remanded the case to the district court with instructions to craft an appropriate remedy, Smith argues that Alvarez is overstating the burden of any interim hearing. Smith contends that the interests of the state could still be accommodated, pointing to a number of examples, including the procedures available under CAFRA and the procedures adopted by New York City in the wake of Krimstock. Ultimately, Smith concludes that whenever individual property rights are at stake, due process requires a prompt hearing before a neutral decision-maker, and Mathews is the appropriate standard to craft a remedy once the facts are further developed on remand.