reasons that these provisions do not provide for an interim probable cause hearing after the seizure of the vehicle and before the forfeiture hearing itself and this court and this court claimants have pressed a similar argument which is that provisions do not ensure that all vehicle owners will receive a meaningful hearing and a meaningful time but neither of these positions can be can meet the exceedingly high burden that a facial challenge faces a facial challenge  fact that the new york statute issue here required the states of new york to prove cup ability on the part of the vehicle owner so there could be a way in which the cases in which the holdings would be viewed i'm going it's going to be mandated to the district courts the original and that case the original property owners had either all the cases had been settled or they had stopped pursuing their claims i mean there had been no class action and so the depart from my lockstep announces now you're on to i would somewhat disagree with the statement that the us supreme court has never faced the issue at hand the issue at hand is whether property owners to make an informal request to the government for the return of property and this is outside the egypt the judicial proceedings and the claimant in that case argued that these remission for seedings had not occurred  that process is provided by the forfeiture hearing itself and and and because the due process because the remission proceedings were not quote unquote necessary for the that process to be provided then the case and and the nine hundred fifty the court specifically stated that the specific facts of each case must be looked at and that is why it's particularly inappropriate to make a facial to a ruling that this case is that this statute insufficient to render it wholly invalid but the circuit court and claimants here seek to turn the issue of facial challenge on its head instead of trying to demonstrate that this statute in all cases leads to unconstitutional results instead claimants and the circuit court wish to argue that because in some conceivable set of circumstances there might be if you process violation then the whole statute should be  tend to this fairly promptly so the circuit court was not even finding that there were violations due process violations and the due page county rather the circuit court held that because under the statute there could conceivably be some sort of due process ssion that then in some county in one of the hundred two counties in ohio to some particular vehicle owner that the statute in its entirety must be struck down that is not the way facial challenges work  result any dismissal the dismissal was inappropriate so even in a case which found a due process violation with respect to the seizure of the forfeiture proceedings themselves were not dismissed and matthews was not applied to the issue of  post seizure delay now good also points out that even if the circuit court had been right and this case and if there was a problem with respect to and the statute because it's not provided for a probable cause hearing the appropriate remedy would not be one out of dismissal of the forfeiture proceedings we can look at that from good income stock both cases which found due process violations of respect to the seizure neither called for dismissal of the civil forfeiture proceedings and stead they provided for hearings probable cause hearings and we can ask you how that happens in the congress the legislature has passed the structure of architecture of the statute violation the question is what happens then now it may be so that the courts or the legislature can then create a system where the courts can create a system which provides such a hearing and it may be but it would be the case that eventually the legislature if aware of once aware of the presses violation we would rewrite the statute in the meantime when the claimants would break the claimant should bring a section  clearly places the burden on the innocent owner that's thirty six dash to a and so that would not be the issue of innocent ownership would not be relevant at a probable cause hearing and so it is it relevant to the application and either timeliness and nephews deals with whether or not the process itself is sufficient my question is within the mathews analysis of the process being sufficient is timeliness not a component of assessing whether or not the process is this efficient well you certainly there can be a general timing element in the sense that the hearing has to be let's say before the terminations of benefits that was matthew's case before the seizure so it's not test it's a question of which test is more narrowly tailored and indeed anything pretty much from one of the tests can be shoehorned into one of the the factors of the other but the back of test sets out  it the it certainly should be if concerned that the affirmative matter but the alleged affront of matter here indeed does not meet the requirements of that but if affirmative matter should be and that it does not negate the cause of action and that question thank you the attorney general confuses the fact that on an individual level once a structure is in place that guarantees across the board procedural due process puts deadlines burdens types of hearings in play once we've gotten past the facial analysis then on an individual level issues under barker vs when gold may come into play we're not at that stage yet we're at the stage where the claimants have asked the courts to look at the act itself and see if there is sufficient protections in place on the face of this act to provide a minimal level of procedural protection we don't decide that because one person in one county in one courtroom received a hearing it on the fifteenth day of a seizure that suddenly it's acceptable across the board because in in this situation we have literally a wide open set of procedures with at least five to six d facts as we take deposition first off the vehicle is seized once said vehicle is seized the statute suggests that the delivery of the vehicle by the seizing police agency should be to the sheriff forthwith that's our deadline what is forthwith there is no timeline for that purpose whether forthwith in du page county means fifteen days and whether and cook county it means one hundred eighty days one will ever know the tourney general would suggest perhaps up to eighteen months is forthwith they argue an eighteen month delay on a forfeiture proceeding in any respect is satisfactorily we disagree with that are you familiar orthe and several other procedural due process challenges that have been brought before the supreme court here that the courts adopted matthews versus eldridge in each analysis and frankly counted a summary suspension hearing the defendant if he's aggressive in making this claim will get a hearing no later than three days post deprivation because the suspension won't start till the forty six day and under old rule five will for at least where the maximum would have been forty nine days the most aggressive person would at least suffer no ill beyond seventy two hours i understand or fisher that perhaps the length of the hearing itself could be extended i think that might be on an individual level as to how long they could take so i think that's a very different set of circumstances and under fisher there's no allegation that there's a third party who's an innocent owner or spousal exemption or exception that also has been given some degree of entitlements fischer's a one on one with an allegation of a possible drunk driver i also remind the court since we're on that tangent to for the moment that in summary suspension hearings these forfeitures require not only that hearing within three days but that a sworn complaint to a report be filed by a person with knowledgeable facts detail and specifically the probable cause that that person swears under penalty of perjury and other one dish one on one to be true these complaints in this case are purely conclusory one could a court could not even look at the complaint itself and determine whether probable cause for forfeiture even actually existed that's we didn't raise that as another defect in this in our briefs but the point of the matter is there's far more protections on the loss of that license where there's no third party innocent owner exemption or spouse then th ere is when the entire automobile which can be the central role for virtually every family member is being impacted on a day to day basis so we don't have a sworn report that establishes probable cause with the fine in the complaint we have nothing facially that says yeah this this officer got it right ok simply what we have here is just a retention of property with out virtually any deadlines in fact once the sheriff delivers the vehicle to the state's attorney i believe it's at a bad point that the state's attorney can decide whether to remit and perform some type of remitting review which in this record there is no proof was ever done and that remission review has no deadline so even if someone even if the state's attorney had all the information they needed in at least one of these cases we have a corporate owner of the vehicle so it's clear on its face the state's attorney knew there was a third party out there a corporation that certainly couldn't be a culpable defendant just by its existence and they performed apparently no remit review at least they didn't put in the record as such the state's attorneys then given the opportunity to file a complaint forthwith whatever that m personally feel that the best this court could possibly do since this is a property action would be to apply that the five year statute of limitations for property and actions because there's no definition of  forthwith that perhaps might be the only statue limitation or deadline that's actually a political to any of the government actions in the case when does a hearing on the merits have to take place absolutely again no deadline in a summary suspension the score well knows from its previous decisions in that regard once the defendant biles his petition asking for a judicial determination of whether he or she should be suspended he has that right to that hearing within thirty days maximum or the first court date here there is no such thing  we cannot leave it up to one hundred two separate counties and countless hundreds of courtrooms to decide who gets preference how many judges are of vailable pointing out that the judge in this case said at least eight hundred four fisher complaints are filed every year in one county in illinois and that's to page county certainly we could extrapolate from that we're talking thousands and thousands of cases across the board he only deadline oddly in the entire act that has any bearing his for the claimants it's only the claimant the person whose property is being taken away that has a deadline a fixed deadline and it's twenty days twenty days to file their claim and in each of these cases the claimants bigger recently asserted their claims i am the wife i'm entitled to a spousal exemption i am a corporation i am an innocent to owner i am another wife i am the defendant i am innocent of the criminal charge each person performed their act on their side now i don't fault the du page county state's attorney in any way and certainly the judge there gave some very kind to his comments perhaps because he felt it wasn't necessary to in any way  that they were performing their role in anything other than honorable for him to already have made a ruling that this lack of deadlines across the board was just insufficient now applying matthews vs eldritch which i might point out this court has applied in a variety of circumstances for facial procedural due process claims it is very simple there is three elements and there's no doubt that the wool of an automobile is unique so when we talk about procedure and what does do the term do is quite simple it's do based on what we're talking about now you're talking about eighty eight hundred fifty dollars worth of cash you can't take the cash to court you can't drive your kids to to their post school activities on a bag of cash number one number two money does not depreciate over time you don't have to pay insurance for money if money is there in eighteen months you could get money back literally it should be worth almost the same as what it was when it was taken it's not losing fifteen to twenty percent what is driven off the showroom floor it's not losing an average of ten percent a year it's not depreciating now keep in mind that this these issues of due process apply across the board certainly those that have available monies may be less imposed by the loss of their vehicle for months or years or or forever but the average hundred ninety eight g m c a two thousand and two chevrolet these folks aren't driving a mercedes some have made claims this is the only car in their their family what would be the impact for a person who is driving a car that's already ten years old when it sees these are real world scenarios the likelihood is they're driving cars like that because that's what they can afford that's how americans live for the most part and the loss of that automobile is likely to have a substantial impact now how long does it take for a gentleman who likely in at least in du page county is likely to have to use a car to get to work or a spouse that needs to get to work or if somebody has to do something how long is it going to take how many days of loss of work is going to take for the loss of the job how do you recapture getting your kid to pick them up at soccer these are the role of an automobile is unique it falls somewhere between cash which is just a it's a eighty eight hundred fifty dollars is eighty eight hundred fifty dollars next year too for the most part and it falls somewhere between bat and real estate but in many of our citizens in illinois life's this is their largest may ever make it may be their most important piece of property and some people in some social stratas define themselves by the car they drive that's how they're viewed these cars occupy a very central pace in the american way of life it's it harks back to when we didn't have cars it was a man and his horse what happened when someone tried to take a man's horse away you know what the laws were back then horses were simply property but they were a unique piece of property because they allow americans to travel automobiles  our horses for today they are not just a piece of property they're a piece of property but they're a social value that's quite different than virtually anything else that one could describe except perhaps the living animal which is also some type of property if you will the risk of erroneous deprivation though in this case we have people who've made filed claims he understood owners in twenty days sure maybe it was three months down the road four months down the road eight months down the road a year down the road when the claimants finally filed challenges to this procedural due process how long does it take for a state's attorney to determine if the person is really an instant owner and whether they only have one vehicle in their household it takes seconds on a computer the secretary state's records are centralized you could run an address and find out every vehicle that seven registered at that particular address in a matter of minutes you can determine by picking up the phone you can set it for hearing but none of that took place here because it doesn't have to and it wasn't done it doesn't take long in a person's daily life to understand how the loss of of of an automobile cannot be replaced these are issues that there is no recompense for two years later what do you tell the person to what do they get they just get what would be if it's a ninety six chevy in the year two thousand and seven what is it going to be worth today when he gets his car back how much money has been spent for alternative transportation there's no recompense there what about all of the times he had to ask a neighbor to drive him to go see his kids at their place how do you get recompense for that and the funny part is eventually yes prejudice does occur because you're going to drive these poor people into having to give up that car how long does it take before they just have to quit you either have to get alternative transportation and put that money behind that well or you have to continue to make payments on these vehicles perhaps and i don't think it's out of out of outside the record or common life to suggest that most vehicles when purchased are purchased over time there are installment payments if these folks stop making those installment payments they lose their car so they have to keep making those payments one of these vehicles are least elise's only being paid for the right to use the car but you don't have  these are not recompense they don't get their money back at the end and if you have an installment agreement in illinois that lender is going to require that there be insurance on that vehicle at all times if you breach or contract stop paying for the installment agreement or you don't show the lender that the vehicles being insured you breach of contract and guess what the only person who gets to walk in the door on this statute and get the car almost glad they volunteered me for that but i will tell you if you could learn i will tell you that more likely than not it should have been filed as a two six one five motion however as i cited in my brief the context of whether it was cited abroad on the one statute vs the other has never on appeal been a basis for turning the case over or reversing i would also point out that there is a waiver issue in this case because  the attorney general and who never appeared before the original ruling and the two page states attorney never raised the propriety of this motion until after the ruling had actually occurred so they said on the rights and in that sense they forfeited the opportunity to raise that procedural issue if they had raised it it would been a quite simple amendment and we know what the trial court's ruling would have been anyways so that would now the risk of erroneous deprivation is certainly in this case we don't have anything but a presumptively innocent driver the allegations of how many priors or how it happened whether it whether it's even a misdemeanor dui with no insurance there's no there's been no showing that the driver him self or her self is even culpable yes the government does have an interest in preventing the of crime because this statute applies kidnapping robbery we're talking about dui mostly because that's the most prevalent in and they happen to be what these three claimants were all about preventing the recurrence of crime because this is not punitive statute they're not taking cars away to punish if they were then we'd be into a double jeopardy argument so we know that this is a forfeiture that can only be justified for some reason other than punishments to avoid double jeopardy issues it's the recurrence to prevent a recurrence of crime take the car away take the instrumentality away to hopefully prevent the recurrence a crime well it's certainly not narrowly tailored for that purpose let me point out number one that a bond could be posted as many states statutes allow for a bond to be posted to get the vehicle back there could be a restraining order set up that would transfer to the insane owner with a restraining order in place that prohibits them from allowing this other person operate the vehicle there are certainly other ways you could prevent a recurrence of crime and if it was really truly to prevent a rec crime presumably other statutes that are already on the books such as a summary suspension act that should can come a time out li be applied to the same driver already for bids that person after the forty six day from operating any vehicle no matter who has it there is no executive urgency here in other words they can't say that they need to for gold the propriety of hearings during the pendency of the litigation  not get past the facial challenge we ask that this quite simply apply the rules with respect to facial challenges and again they have to show that the statute issued a statute that issue cannot be applied in a constitutional manner they have not done so and that should be the beginning and the end of the inquiry second just as a point of clarification as we pointed out in our briefs the turning to the issue of the procedural issue the two six nineteen vs six fifteen issue first it is the people's position that even if this had been brought under to six fifteen it would have was it does not constitute affirmative manner that negates the cause of action but there specter forfeiture and the appearance of the attorney general's office first the people were represented by the state's attorney the state's attorney's office of the page in this case for turning to claim its arguments with respect to the inclusion of forthwith and promptly the claimant argues that because the statute conditions certain things are being done forthwith or promptly that there is no deadline now a few points on that first in this case complaints were filed within twenty two days ten twenty and twenty two days so again in this case they were filed quickly for promptly by any of those definitions and it again brings up the problem of claimants raising a facial challenge and in the record in this case we see that all these things were done in an expedited fashion in th state had the people have has no interest in delaying the proceedings the people get no reward for housing evidence or housing the car they have to pay money to maintain those vehicles and so there's no motivation for the statute in a manner that keeps it valid and so the court could easily construe forthwith them promptly to mean periods of time that would maintain the constitutionality of the statute now claimants argue far as we know as far as the record reflects i'm nothing in this case shows that they pursued those avenues and in fact of the statute has the civic li those in place and those are used quite often but they were used in this case and again it also shows the problem with respect to facial challenges and making and validating a statute on a bare bones record and finally claimants refer in great detail to the value different than eight hundred fifty because in his case involve the car not cash and the united states supreme court specifically rejected that argument and found that anything any any for any property if the if the process  satisfied barker they satisfy due process and again claimants point to what could be what often is what many people experience but again this is all speculation that there's nothing in the record there's nothing in the record that these particular claimants do not have other modes of transportation and indeed it's likely they did since they didn't pursue as far as we can tell the hardship exception which could have been applied to them