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November 30, 2001

JUSTICE O'MALLEY delivered the opinion of the court:

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

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

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

Petitioner alleged further that the State notified him by mailaddressed to 12795 Kennedy Hill Road in Byron that his $2,354 cashwas subject to a nonjudicial forfeiture. However, petitioner didnot know of the attempt to serve him by mail at the Byron address. He did not receive notice until July 9, 1999, when his daughtertold him that he had a certified letter at the Byron post office. Petitioner asserted that the State knew that petitioner was barredfrom the Byron address and from contact with Gloria Barker, wholived there. Therefore, petitioner claimed, he did not receiveproper notice of the forfeiture.

The rest of the record reveals the following facts. On May12, 1999, petitioner posted $10,000 cash bond after he was chargedwith possession of cannabis with intent to deliver. Petitionersigned the bond form and gave his address as 12795 Kennedy HillRoad in Byron. On May 14, 1999, petitioner filed a note with thecircuit clerk of Ogle County. The note stated that petitioner hadmoved from the Byron address to the Rockford address. At thehearing on petitioner's petition, the trial court observed thatthis note was "attached to the bond" in the court file.

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

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

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

After allowing petitioner to file an affidavit supporting hispetition, the court granted the petition. Relying in part on ouropinion in People v. Smith, 275 Ill. App. 3d 844 (1995), the courtheld that petitioner had been denied due process because he did notreceive reasonable notice of the pending forfeiture or anopportunity under the Act to object to the forfeiture. The judgeexplained that the notice was inadequate "[b]ased on the evidencehere and the fact that [petitioner] notified the clerk's office ofhis change of address before the notice went out." The courtvacated the forfeiture without prejudice to the State's right tobring a new forfeiture proceeding. The State timely appealed.

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

The underlying facts are essentially undisputed. Therefore,whether petitioner received notice in accord with due process is aquestion of law that we review de novo. See Quantum Pipeline Co.v. Illinois Commerce Comm'n, 304 Ill. App. 3d 310, 314 (1999).

The Act sets forth the procedures for the seizure and civilforfeiture of drug-related assets. Where, as here, nonrealproperty with a value of less than $20,000 is seized, the State'sAttorney must provide notice of the pending forfeiture to the ownerof the property in accordance with section 4 of the Act. See 725ILCS 150/4(A) (West 1998). Section 4 provides that, if the owner'sname and current address are known, notice of the pendingforfeiture may be provided by personal service or "mailing a copyof the notice by certified mail, return receipt requested, to thataddress." (Emphasis added.) 725 ILCS 150/4(A)(1) (West 1998). Thephrase "return receipt requested" is not idle language. People exrel. Devine v. $30,700.00 United States Currency, 316 Ill. App. 3d464, 469 (2000), appeal allowed, 193 Ill. 2d 599 (2001). The meremailing of notice, when the legislature has specified that a returnreceipt be requested, is not sufficient; the inclusion of thereturn receipt requirement indicates a legislative intent that theservice of notice by certified mail is not complete until it isreceived by the addressee. See Avdich v. Kleinert, 69 Ill. 2d 1,9 (1977). Thus, the failure to receive a return receipt when oneis required renders an attempted notice incomplete (see Avdich, 69Ill. 2d at 9) and invalid (see Devine, 316 Ill. App. 3d at 469). As it is undisputed that the State did not receive a signed returnreceipt from Barker until after the property had already beenforfeited, we conclude that the State's notice was invalid and thetrial court did not err in vacating the forfeiture.

We also conclude that the State's attempt of service deniedBarker due process. Due process requires "notice reasonablycalculated, under all the circumstances, to apprise interestedparties of the pendency of the action and afford them anopportunity to present their objections." Mullane v. CentralHanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873, 70S. Ct. 652, 657 (1950). Where a party's name and address arereasonably ascertainable, notice by mail or other means as certainto ensure actual notice is a prerequisite to a proceeding that willadversely affect the party's liberty or property interests. Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 77 L. Ed.2d 180, 188, 103 S. Ct. 2706, 2712 (1983); United States v. 51Pieces of Real Property, Roswell, New Mexico, 17 F.3d 1306, 1316(10th Cir. 1994). Generally, written notice by certified mail issufficient even if the claimant does not receive the actual notice. Garcia v. Meza, 235 F.3d 287, 290 (7th Cir. 2000); Montgomery v.Scott, 802 F. Supp. 930, 935 (W.D.N.Y. 1992). However, theultimate issue is whether the government acted reasonably under allthe circumstances in relying on the mail to notify the party. Montgomery, 802 F. Supp. at 936. Although mailing a notice to anincorrect address does not necessarily violate due process, thecase law reveals three scenarios where such notice is inadequate. The most extreme situation is when the government actually knowsthe party's correct address but mails the notice to the wrongaddress. See Robinson v. Hanrahan, 409 U.S. 38, 40, 34 L. Ed. 2d47, 49, 93 S. Ct. 30, 31 (1972); Small v. United States, 136 F.3d1334, 1337 (D.C. Cir. 1998). In the second scenario, the Statedoes not actually know, but should know, the party's correctaddress when it mails the notice. There, because the State had notacted reasonably on its imputed knowledge, it had not satisfied dueprocess. Thus, in People ex rel. Devine v. $30,700.00 UnitedStates Currency, 316 Ill. App. 3d 464 (2000), a forfeitureproceeding, the State mailed the notice to the property owner'shome address even though he was in jail at the time. The appellatecourt held that the notice did not satisfy due process because theproperty owner's correct address was readily ascertainable. Devine, 316 Ill. App. 3d at 470-71. Devine relied in part onSmith, where we held that mailing a notice to the claimant's housewas inadequate because the State could easily have learned that theclaimant was then residing in the Kane County jail. Smith, 275Ill. App. 3d at 849-50.

In the third scenario where notice falls short of due process,the State acts reasonably in initially sending the notice to aparticular address. However, later developments charge the Statewith knowing that it is not reasonably likely that the party hasreceived the notice. If the State does not then take reasonablemeasures to try to notify the party at his correct address, it hasnot accorded the party due process. The State need not go toheroic lengths, and its efforts may satisfy due process even ifthey do not result in actual notice. However, the State must dosomething before it deprives the party of his property.

Generally, this scenario unfolds when the original notice isreturned unclaimed. Thus, in Garcia, the federal government sentthe notice of forfeiture by Federal Express to the claimants'apartment, where agents had recently seized the money thegovernment now sought to forfeit. Five days after the notice wassent, it was returned as "undeliverable." However, the governmentdid nothing more to ascertain the claimants' address or to notifythem again. The court held that the initial notice was proper butthat the government did not act reasonably after the notice cameback undelivered. According to the court, the government need not"seek out claimants in each case where its initial notice isreturned undelivered" (Garcia, 235 F.3d at 291), but it must givenotice reasonably calculated under the circumstances to apprise aparty of an impending proceeding. These circumstances includethose that develop after the notice is first sent. Garcia, 235F.3d at 291. In Garcia, the claimants were represented by counseland had sued the government to get the money returned. For theseand other reasons, the government easily could have learned theclaimants' address and sent a new notice there. Garcia, 235 F.3dat 291.

In Montgomery, federal agents entered the claimant'sapartment, arrested him, and seized money they suspected came fromdrug sales. The government started proceedings to forfeit themoney administratively, sending the claimant notice by certifiedmail to the apartment. Three weeks later, the notice was returnedunclaimed. The government did nothing more to notify the claimant,other than by publication, and the property was forfeited. TheMontgomery court set aside the forfeiture, reasoning that, althoughnotice by mail usually satisfies due process, the return of thenotice as unclaimed should have warned the government that theclaimant likely did not learn of the pending forfeiture. Thegovernment could not reasonably rely on a notice that it knew wasunsuccessful; that was no different from deliberately mailing thenotice to the wrong address at the outset. Montgomery, 802 F.Supp. at 936. As the government knew that the claimant had counselin a pending state criminal case, it easily could have learned theclaimant's new address or at least have notified him though hisattorney. Montgomery, 802 F. Supp. at 937.

Other courts have held that, when a notice is returnedunclaimed, the State must try to renotify the person whose propertyis at stake. See, e.g., Small, 136 F.3d at 1337; United States v.Rodgers, 108 F.3d 1247, 1252-54 (10th Cir. 1997); City of Boston v.James, 26 Mass. App. 625, 629, 530 N.E.2d 1254, 1256 (1988).

We return to the case at hand. The parties agree that thefacts here do not fit the first of the three scenarios we havedescribed. The trial court did not conclude, and the record doesnot show, that on either May 19, 1999, or July 6, 1999, the Stateknowingly mailed the Notice to an incorrect address. However, thecourt apparently did conclude that this case fit within the secondscenario we have described. The court stressed that the Stateshould have known from matters on file that petitioner had alreadymoved to the Rockford address; thus, the State did not actreasonably in mailing the Notice to the Byron address.

On appeal, the State asserts that the trial court undulyextended Smith to a party who, unlike the claimant in Smith, wasnot incarcerated at the time the State mailed him the pertinentnotice. The State appears to argue that this distinction iscrucial because (1) a prisoner's address is easy to ascertain; (2)petitioner should have told the State his new address; and (3) itis possible that petitioner received the original Notice but failedto act on it, in which case the trial court's ruling would rewardhim for his own lack of diligence.

The State's attempts to confine the reasoning in Smith do notstrike us as sound. In Smith, we simply applied the broad rulethat due process requires notice that is reasonable in view of whatthe State actually knows and what the State should know through theexercise of reasonable diligence. Of course, whether the propertyowner is incarcerated may bear on the reasonableness of the State'sefforts and on whether his address is reasonably ascertainable. However, the fundamental question is still whether the State hasacted reasonably under all the circumstances.

The State correctly asserts that the owner of seized propertyis required to notify promptly the seizing agency of any change ofaddress. See 725 ILCS 150/4(1) (West 1998). The statute is silentas to the consequences to an owner for the failure to notify theState of a change of address. We will not find that the failure toso notify releases the State from its constitutional obligation(set forth above) to provide due process of law. Moreover, asnoted above, the statute also requires the State to request areturn receipt, and that has been interpreted to mean that serviceby certified mail is not valid until it is received. Devine, 316Ill. App. 3d at 469. We will not hold that the failure of theowner to provide notice of his change of address transforms anincomplete and invalid notice into a valid and complete one. Anundelivered certified letter is not a license to proceed; thereturn of such a letter must put the State on notice that furtherinquiry must be made. It is not reasonable for the State to proceedwith the forfeiture under such circumstances. It has noinformation as to why the owner has not received the notice. Finally, the State's speculation that petitioner may havereceived the Notice and deliberately ignored it is without anysupport in the record. Petitioner's petition contradicts suchspeculation. Moreover, the State again puts the cart before thehorse. As cases such as Garcia and Montgomery hold, the return ofa notice as unclaimed does not entitle the State to assume that theclaimant received the notice but ignored it. Rather, the State'sinitial lack of success warns the State that very likely theclaimant did not receive the notice and the State must act further.

That the State's attempts to limit Smith are unpersuasive doesnot establish that the trial court's reasoning was correct. We maystill ask whether, when the State mailed the Notice on May 19,1999, it was charged with knowing petitioner's latest address. The trial court apparently reasoned that, as petitioner filed arecord of his new address with the circuit clerk on May 14, 1999,the State should have known this address before it sent the Notice. We need not decide whether this reasoning is sound. We hold that,even if mailing the Notice to the Byron address the first time wasreasonable, the State did not act properly after the Notice cameback unclaimed. The trial court did not explicitly rely on thisreasoning, but we may affirm the judgment on any ground warranted. See People v. Everette, 141 Ill. 2d 147, 158-59 (1990).

At the trial court hearing, the State all but conceded that,after the Notice came back unclaimed, the State did little tonotify petitioner of the impending forfeiture. However, the Statemaintained that its obligations were minimal and that it had doneenough. That was incorrect. Contrary to what the State claimed atthe hearing, due process does require the State--within reason--to"try to follow people around and try to figure out where they are." Under the facts here, the State did not fulfill its obligation.

The Notice was returned on June 7, 1999. By then, petitionerhad lived in Rockford for over three weeks, his new address hadbeen on file in the circuit clerk's office for about as long, andhe had counsel in a criminal case based on the same facts as theforfeiture proceeding. Additionally, five days earlier, the trialcourt had modified petitioner's bond in the criminal case bybarring him from any contact with Gloria Barker, who lived at theByron address. Thus, by June 2, 1999 (at the latest), the Stateshould have been aware that petitioner very likely did not live atthe Byron address any more.

The State easily could have ascertained petitioner's correctaddress and mailed a timely notice there or alerted petitionerthrough his counsel. Instead, the State waited until almost amonth after the notice of pending forfeiture was returned asundeliverable and then mailed the notice of declaration offorfeiture to the same address. By the time petitioner actuallyreceived the Notice--which he did by happenstance--the period forcontesting the forfeiture had expired. See 725 ILCS 150/6(C)(1)(West 1998). The State did not provide notice reasonablycalculated to inform petitioner of the pending proceeding, and thetrial court correctly vacated the forfeiture.

The judgment of the circuit court of Ogle County is affirmed.

Affirmed.

McLAREN and CALLUM, JJ., concur.