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September 10, 2001

JUSTICE COOK delivered the opinion of the court:

Contemnor Larry Mills is the State's Attorney ofVermilion County. Contemnor Dan Reed is the director of theVermilion County Metropolitan Enforcement Group (V-MEG), a policeagency consisting of several cooperating Vermilion County policedepartments. Contemnors appeal from an August 20, 1999, orderfinding them to be in indirect civil contempt for their willfulrefusal to comply with a June 18, 1999, order directing them toreturn property that had been seized from defendants Truman andCarolyn Keys. The August 20, 1999, order fined each contemnor$100, but the fine was stayed pending appellate review. Contemnors appeal, arguing that the June 18, 1999, order was void, asthe circuit court lacked jurisdiction to enter it. We affirm.

On August 23, 1997, the circuit court issued a searchwarrant to V-MEG for the search of defendants' Danville residencein connection with drug charges. On August 25, 1997, the circuitcourt issued a seizure warrant for defendants' bank accounts,certificates of deposit, and vehicles. The seizure warrant wasissued in response to the affidavit of an Illinois State Policeinspector stating that the items were subject to forfeiture tothe State of Illinois pursuant to section 505 of the IllinoisControlled Substances Act (Substances Act) (720 ILCS 570/505(West 1996)) and the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 through 14 (West 1996)).

Inventories subsequently filed with the circuit courtindicate that V-MEG seized approximately $9,450 and a computerfrom defendants' residence and approximately $30,800 from defendants' bank accounts.

On November 24, 1997, pursuant to a motion for turnoverfiled by Mike Clary, then State's Attorney of Vermilion County,the circuit court entered an order that United States currency inthe amounts of $27,245.65, $3,649.45, and $10,006, and a HewlettPackard Computer, serial No. US7006213, seized on or about August23, 1997, by V-MEG, be turned over to the Federal Bureau ofInvestigation (FBI), Springfield, for the purpose of federalforfeiture. The order was not given a number, is not in theseizure warrant file, and was not filed with the Vermilion Countyclerk's office. Defendants' names do not appear on the motion orthe order. Defendants had been arrested on August 23, 1997, andcharged with various drug offenses, but neither they nor theirattorney was given any notice of the order or its entry.

On December 5, 1997, defendants filed a motion forreturn of noncontraband property, arguing that the State'sdeadline for initiation of forfeiture proceedings had passed. 725 ILCS 150/9(A) (West 1996) ("within 45 days of the receipt ofnotice of seizure by the seizing agency ***, the State's Attorneyshall institute judicial forfeiture proceedings"). Forty-fivedays after August 25 is October 9.

On December 23, 1997, the FBI sent defendant TrumanKeys seven letters, certified return receipt, advising that theV-MEG seizure was adopted by the FBI on November 19, 1997, forforfeiture under federal law. To contest the seizure or forfeiture, defendant was required to file claims of ownership andbonds in the amount of $250 with the FBI by February 9, 1998. The FBI sent another letter, certified return receipt, datedDecember 30, 1997.

A hearing was held January 8, 1998, on defendants'motion for return of noncontraband property. At the hearing,Clary stated he had been told, that day, by defense counsel thatthere might be some federal involvement, but he did not have anyidea whether that was going on or not. He also said that hisoffice did not usually handle these matters, that they werehandled by the appellate prosecutor's office, and that his officedid not "necessarily" have a file. The trial court reservedruling, stating that it would like more information from bothsides as to where the property was, what the history of thetransfer was, and if there was something being handled by theappellate prosecutor.

On April 10, 1998, the property management officer ofthe FBI, Washington, issued a declaration that the various assetshad been administratively forfeited.

Clary testified at a hearing on June 26, 1998, that hebecame aware, during the week following August 23, 1997, thatdefendants' accounts had been seized and that those monies werebeing held by V-MEG. Clary obtained the turnover order onNovember 24 because either Steve Furman or contemnor Reed desiredto have the property turned over to the FBI so that the FBI couldpursue a forfeiture. Clary made a conscious decision not toprovide notice of the turnover order to defendants or theirattorney, even when defendants' attorney specifically asked aboutthe status of the property. Clary stated that he did not recallhaving obtained the November 24 order when he discussed thematter with the court on January 8 and that is why he did nottell the court about it. He admitted that he did not make anyinquiry of the appellate prosecutor's office after the January 8hearing, but that he just contacted V-MEG.

On July 1, 1998, the circuit court entered an orderfinding that the State furnished no notice prior to the presentation of the November 24 turnover order, that the order was neverfiled of record, that the defendants were entitled to notice, andthat the order "is deemed to be void ab initio."

In a hearing on April 30, 1999, it was determined thatthe computer which had been seized was being retained by V-MEGand that 80% of the monies which had purportedly been transferredto the federal government were actually being held by V-MEG, theDanville police department, and the Vermilion County State'sAttorney's office. On June 18, 1999, the circuit court enteredan order finding that the State failed to institute forfeitureproceedings in accordance with the statute and that no lawfulauthority existed for the continued retention of the property bythe State and further ordering contemnors to return the property. No appeal was taken from that order. On August 20, 1999, thecircuit court entered the order appealed, finding contemnors inindirect civil contempt for their failure to comply with theorder of June 18, 1999.

Contemnors argue that, when a contempt order resultsfrom the violation of an interlocutory order, the validity of theinterlocutory order may be called into question in an appeal fromthe order of contempt. Busey Bank v. Salyards, 304 Ill. App. 3d214, 218, 711 N.E.2d 10, 14-15 (1999). The June 18, 1999, orderthat directed contemnors to return the property was, however, afinal order. The June 18 order determined the litigation on themerits so that the only step remaining was proceeding with theexecution of the judgment. Catlett v. Novak, 116 Ill. 2d 63, 68,506 N.E.2d 586, 588-89 (1987). When a contempt order resultsfrom the violation of an order that was final for purposes ofappeal but was not appealed, the validity of the underlying ordermay not be called into question in an appeal from the order ofcontempt. Busey Bank, 304 Ill. App. 3d at 218, 711 N.E.2d at 14-15. The only question is whether the underlying order is void. Busey Bank, 304 Ill. App. 3d at 218, 711 N.E.2d at 14-15.

The procedure employed here, where state authoritiesturn over assets they have seized to federal authorities to seekforfeiture, is apparently employed because there is a greaterchance of success under the more permissive federal forfeiturestatute. United States v. One 1979 Chevrolet C-20 Van, 924 F.2d120, 123 (7th Cir. 1991); see Scarabin v. Drug EnforcementAdministration, 966 F.2d 989, 991 (5th Cir. 1992) ("shell game"). In the present case, there may have been another reason for theturnover, i.e., to get around the expiration of the 45-daylimitations period provided by state law. 725 ILCS 150/9(A)(West 1996). When state and federal courts each proceed againstthe same res, the court first assuming jurisdiction over theproperty may maintain and exercise that jurisdiction to theexclusion of the other. One 1979 Chevrolet, 924 F.2d at 121. Alocal police department may not take seized property and justpass it on as it pleases to the FBI in flagrant disregard ofstate laws mandating judicial authority for such turnovers. One1979 Chevrolet, 924 F.2d at 122.

A state forfeiture proceeding need not be pending forthe state court to have jurisdiction over the res. United Statesv. One 1987 Mercedes Benz Roadster, 2 F.3d 241, 243 (7th Cir.1993). One 1979 Chevrolet did note the fact that "[a]t the timethe complaint was filed in federal district court, the stateforfeiture action was pending." One 1979 Chevrolet, 924 F.2d at123. It must be recognized, however, that One 1979 Chevroletinvolved a warrantless search, and it was accordingly the forfeiture action which first brought the res before the court. Thesecases do not depend upon "who won the forfeiture 'foot race' inthe courts." One 1987 Mercedes, 2 F.3d at 243, quoting One 1979Chevrolet, 924 F.2d at 122. A turnover order from the circuitcourt of the county in which the res was seized is the appropriate method for seeking authority for a transfer from stateauthorities to federal authorities. One 1987 Mercedes, 2 F.3d at243.

Contemnors argue that the statutes have been changedsince One 1979 Chevrolet and One 1987 Mercedes were decided. They refer us to section 12(d) of the Cannabis Control Act:

"(d) Property taken or detained under

this [s]ection shall not be subject to replevin,

but is deemed to be in the custody of the

Director [of the Department of State Police]

subject only to the order and judgments of

the circuit court having jurisdiction over

the forfeiture proceedings and the decisions

of the State's Attorney under the [Forfeiture

Act (725 ILCS 150/1 through 14 (West 1996))].

*** Upon receiving notice of seizure, the

Director may:

(6) provide for another agency or cus-

todian, including an owner, secured party, or lienholder, to take custody of the property

upon the terms and conditions set by the

Director." (Emphasis added.) 720 ILCS

550/12(d) (West 1996).

The emphasized language was added since the Seventh Circuit'sdecision in One 1979 Chevrolet.

Contemnors argue that it makes no difference whetherthe November 24 turnover order was valid, because the State'sAttorney and the police may transfer the property to the FBIwithout any court order. We need not decide whether the emphasized language applies only to nonjudicial forfeitures (725 ILCS150/6 (West 1996)) or to seizures such as warrantless seizuresobtained without any court involvement. In any event, theemphasized language clearly does not oust the circuit court ofits power to deal with assets that have come within its jurisdiction. The language remains that the property shall be deemed tobe in the custody of the Director "subject only to the order andjudgments of the circuit court having jurisdiction over theforfeiture proceedings." 720 ILCS 550/12(d) (West 1996).

Contemnors argue their position is supported by thedecision of the United States District Court in United States v.Sixty-Two Thousand Six Hundred Dollars, 899 F. Supp. 378 (N.D.Ill. 1995) ($62,600). In $62,600, the court concluded that arelease of the res that came from the executive branch (State'sAttorney), rather than the judicial branch, was authorized by theemphasized changes in Illinois law. The real issue here, according to One 1979 Chevrolet, is the circumventing of the authorityof the state court that has been dealing with the res. One 1979Chevrolet, 924 F.2d at 122. Courts are rightfully jealous oftheir jurisdiction, and once they have assumed it they should notbe considered to have surrendered it until they have expresslydone so. One 1987 Mercedes, 2 F.3d at 243 (a turnover order fromthe circuit court of the county in which the res was seized isthe appropriate method). The State's Attorney does not have thepower to oust the circuit court of jurisdiction once that jurisdiction has been assumed.

We also disagree with contemnors' arguments that, as aresult of the statutory changes, "Illinois courts no longer haveexclusive jurisdiction over seized property" and "the courts haveonly concurrent jurisdiction with [S]tate's [A]ttorneys." Thecourts have their jurisdiction by virtue of the constitution(Ill. Const. 1970, art. VI,