a claimant’s section 2-615 motion to dismiss challenging the legal sufficiency of the State’s allegations of probable cause that are apparent on the face of the complaint provides an early opportunity for a claimant to challenge the seizure in order to obtain return of the property wrongfully seized
How later courts described this case
- a claimant’s section 2-615 motion to dismiss challenging the legal sufficiency of the State’s allegations of probable cause that are apparent on the face of the complaint provides an early opportunity for a claimant to challenge the seizure in order to obtain return of the property wrongfully seized
- discussing the State’s argument that the claimant’s answer in a judicial in rem forfeiture proceeding failed to identify defenses relied upon
- “It is ‘the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify in response to probative evidence offered against them.’ ” (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976))
- noting that common law standing is an “affirmative defense” which “must be pleaded or else it is waived”
Written by the judges who cited it.
The opinion
JUSTICE BILANDIC, specially concurring:
I agree with the majority that the circuit court erred in striking Mena’s answer and that the entry of a default judgment of forfeiture must therefore be reversed. However, I do not agree with the majority’s reasoning in reaching that conclusion. Specifically, I disagree with the majority’s assertion that the claimant in a forfeiture action has no obligation to plead his or her standing to contest the forfeiture. I believe that the approach to the standing issue espoused in Chief Justice Freeman’s dissent is correct. I also disagree with the reasoning employed by the majority in resolving the fifth amendment issue, and I would adhere to the analysis on this issue provided by Chief Justice Freeman’s dissent.
With regard to the sufficiency of the State’s complaint, I agree with the majority that the State’s complaint fails to state a claim for forfeiture. I also agree with the majority that the State should be given the opportunity on remand to amend its complaint.