# People v. $1,124,905 U.S. Currency

> Illinois Supreme Court · September 18, 1997 · 177 Ill. 2d 314

URL: https://www.frixlaw.com/law-library/cases/9744471

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. $1,124,905 U.S. CURRENCY AND ONE 1988 CHEVROLET ASTRO VAN (Jesus Mena, Appellant)
- **Court:** Illinois Supreme Court
- **Decided:** September 18, 1997
- **Citations:** 177 Ill. 2d 314; 226 Ill. Dec. 627; 685 N.E.2d 1370; 1997 Ill. LEXIS 424
- **Precedential status:** Published
- **Opinion:** Dissent by Freeman
- **Judges:** Nickels, Bilandic, Heiple, Freeman, Miller
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744471

## How later opinions describe it (automated extraction)

- discussing the State’s argument that the claimant’s answer in a judicial in rem forfeiture proceeding failed to identify defenses relied upon
- noting that common law standing is an “affirmative defense” which “must be pleaded or else it is waived”
- rejecting a requirement that a “substantial connection” exist

## Opinion text

CHIEF JUSTICE FREEMAN, dissenting:
My colleagues today choose to ignore the directives of the Illinois Drug Forfeiture Act. As a result, they wreak havoc on this state’s forfeiture laws by creating new rules of procedure which contravene those expressly enacted by our General Assembly. In addition, my colleagues disregard our own case law as well as decisions from across the nation. Because of this, the State of Illinois henceforth faces a greater burden in statutory forfeiture proceedings than any other governmental body in this country. For the reasons I set forth below, the majority’s decision represents a result-oriented approach to decisionmaking. I believe such an opinion is unworthy of this court’s imprimatur; therefore, I must respectfully dissent.
Standing Under the Forfeiture Act
Although I agree with my colleagues that Mena’s standing to contest the forfeiture of the currency is the first issue that must be resolved, I do not believe that common law principles of standing should apply in this case. Rather, in my view, Mena’s standing must be evaluated in light of the specific standing requirements set forth in the Forfeiture Act. A review of that Act, therefore, is necessary.
The General Assembly enacted the Illinois Drug Forfeiture Act in 1990 in order to deter the rising incidence of drug abuse and trafficking within our state. See 725 ILCS 150/2 (West 1992). To that end, our act was modeled after the federal narcotics civil forfeiture statute, which the legislature found to be successful in deterring similar substance abuse problems throughout the country. See 725 ILCS 150/2 (West 1992) (intending Forfeiture Act to be construed in light of federal forfeiture provisions). Under our Forfeiture Act, property which is seized in accordance with the rules set forth in the Controlled Substances Act (720 ILCS 570/100 et seq. (West 1992)) and the Cannabis Control Act (720 ILCS 550/1 et seq. (West 1992)) may be forfeited to the State in two different ways, depending on the value of the property. In instances in which the seized property does not exceed $20,000, a nonjudicial forfeiture action is commenced by the State’s Attorney of the county in which the property was seized. 725 ILCS 150/6 (West 1992). If, however, the value of the seized property exceeds $20,000, as in this case, the State "shall institute judicial in rem forfeiture proceedings” in accordance with section 9 of the Forfeiture Act. 725 ILCS 150/6 (West 1992). In those cases, section 9(A) directs that the State "shall institute judicial forfeiture proceedings by filing a verified complaint for forfeiture.” 725 ILCS 150/9(A) (West 1992).
The Forfeiture Act further provides that a person who wishes to contest the forfeiture of the seized property must file an answer to the complaint within 45 days of service of the complaint. 725 ILCS 150/9(E) (West 1992). However, the Act limits the class of persons entitled to file such an answer to "[o]nly an owner of or interest holder in the property.” 725 ILCS 150/9(0 (West 1992). Such persons are referred to as "claimants.” 725 ILCS 150/9(0 (West 1992). In addition, section 9(D) mandates that a claimant’s answer must contain certain information. Specifically, section 9(D) states in toto:
"The answer must be signed by the owner or interest holder under penalty of perjury and must set forth:
(i) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant;
(ii) the address at which the claimant will accept mail;
(iii) the nature and extent of the claimant’s interest in the property;
(iv) the date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property;
(v) the name and address of all other persons known to have an interest in the property;
(vi) the specific provisions of Section 8 of this Act relied on in asserting it [the property] is not subject to forfeiture;
(vii) all essential facts supporting each assertion; and
(viii) the precise relief sought.” 725 ILCS 150/ 9(D) (West 1992).
Taken together, these subsections clearly demonstrate that the General Assembly intended that, in order to become a party to the litigation, the claimant must plead one of the property interests identified in section 9(C). After all, the claimant is the party who is invoking the statutory right to assert a claim against the property. See 725 ILCS 150/9(0 (West 1992). Placing the burden upon the claimant to identify his or her interest in the property is only logical, for it is the claimant who possesses the information regarding the nature and extent of that interest. Because the General Assembly has expressly conditioned a claimant’s right to contest the forfeiture of property upon compliance with the Forfeiture Act, common law principles of standing do not apply. Overwhelming support for this proposition can readily be found in previous decisions from this court.
A forfeiture proceeding is a creature of statute. As such, courts must look to the statute in order to determine which persons are entitled to seek the relief provided for by the General Assembly. In other words, the General Assembly, having created the right to contest the forfeiture of seized property, may limit or restrict the class of people entitled to assert that right. This concept, often referred to as "statutory standing,” has, heretofore, been recognized by this court when addressing a right which did not exist at common law. See 3 R. Michael, Illinois Practice § 24.9, at 398-401 (1989). The concept of statutory standing is founded upon the judiciary’s recognition that the "legislature, having conferred a right of action *** may determine who shall sue, and the conditions under which the suit may be brought.” Wilson v. Tromly, 404 Ill. 307, 310 (1949), citing McFadden v. St. Paul Coal Co., 263 Ill. 441 (1914). In fact, this court has consistently adhered to the notion that our General Assembly may attach conditions to the relief it creates. See Wilson, 404 Ill. at 311 ; Fitzpatrick v. Pitcairn, 371 Ill. 203 (1939); Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222 (1938); Day v. Talcott, 361 Ill. 437 (1935); Bishop v. Chicago Rys. Co., 303 Ill. 273 (1922); Hartray v. Chicago Rys. Co., 290 Ill. 85 (1919). That being the case, it is the party seeking the statutorily created relief who must " 'bring himself clearly within the prescribed requirements necessary to confer the right of action.’ ” Wilson, 404 Ill. at 311 , quoting Hartray v. Chicago Rys. Co., 290 Ill. 85, 87 (1919); Fitzpatrick, 371 Ill. at 210 . See also Paxson v. Board of Education of School District No. 87, 276 Ill. App. 3d 912, 925 (1995); Baird v. Chicago, Burlington & Quincy R.R. Co., 11 Ill. App. 3d 264, 269 (1973). In view of this substantial body of Illinois precedent, the claimant in a forfeiture action must bring himself within the statute’s requirements. For this reason, the standing issue raised in the present case can only be resolved through reliance on principles of statutory, as opposed to common law, standing.
Majority’s View of Standing
Notwithstanding the above, my colleagues hold— without explanation — that common law principles of standing "trump” the specific requirements of the Forfeiture Act. In fact, they conclude, on the basis of this court’s decision in Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988), that Mena need not allege facts to support his standing. Instead, the majority erroneously believes that standing under the Forfeiture Act is, like common law standing, an affirmative defense which the State must plead and prove. 177 Ill. 2d at . 330-331. The majority submits that the State may "successfully satisfy this burden only where the State can prove that the claimant has not suffered an injury in fact to a legally cognizable interest.” 177 Ill. 2d at 331. The majority’s position, however, is legally indefensible. Common law principles of standing have nothing to do with this case because forfeiture proceedings are governed by the statutes which created the claimant’s right to contest the forfeiture in the first instance. Case law from across the nation compels this conclusion.
Remainder of the Country’s View of Standing
Due to the fact that the issue of standing with respect to statutory forfeiture actions is one of first impression in this state, I have turned to the decisions of our sister states for guidance on this seemingly rudimentary issue. Not surprisingly, I discovered that no other court in this country which has addressed the issue has utilized the common law approach espoused by my colleagues. Rather, courts analyzing this issue have routinely looked to the specific forfeiture statutes in order to determine whether the claimant had alleged the statutory requirements. For example, in People v. $28,500 United States Currency, 51 Cal. App. 4th 447, 467 , 59 Cal. Rptr. 2d 239, 252 (1996), the court acknowledged that "a claimant must show he has a recognizable legal or equitable interest in the seized property in order to establish standing.” Similarly, in State v. Alford, 264 Ga. 243, 244-45 , 444 S.E.2d 76, 78 (1994), the Supreme Court of Georgia held that an answer which fails to allege certain information required under the Georgia forfeiture statute is insufficient as a matter of law. Accord Jackson v. State, 218 Ga. App. 437, 440 , 461 S.E.2d 594, 595 (1995) (holding that the "onus [falls] on claimant to establish both his standing to contest the forfeiture and his entitlement to a statutory exception”).
The majority’s novel approach to standing under the Forfeiture Act also flies in the face of numerous decisions from the federal courts. In fact, the federal circuits uniformly hold that it is the claimant who must plead his or her interest in the property in order to be recognized as a party to the forfeiture action. In United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1057 (9th Cir. 1994), the Ninth Circuit Court of Appeals could not have been more clear than when it stated that "[t]o have standing to challenge a forfeiture, a claimant must allege that he has an ownership or other interest in the forfeited property.” (Emphasis added.) The same viewpoint can be found in a decision from the Fifth Circuit Court of Appeals, in which the court acknowledged that "[t]o contest a forfeiture action, an individual bears the burden of 'demonstrating] an interest in the seized item sufficient to satisfy the court of his standing’ as a claimant. [Citations.]” United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1111 (5th Cir. 1992). Like the Ninth and Fifth Circuits, the Eleventh Circuit Court of Appeals has recognized that "a party seeking to challenge the government’s forfeiture of money or property used in violation of federal law must first demonstrate an interest in the seized item sufficient to satisfy the court of its standing to contest the forfeiture.” United States v. Five Hundred Thousand Dollars, 730 F.2d 1437, 1439 (11th Cir. 1984). Finally, in United States v. United States Currency in the Amount of $2,857.00, 754 F.2d 208, 213 (7th Cir. 1985), the Seventh Circuit Court of Appeals stressed that an "essential element” of standing to contest a forfeiture is the filing of a claim which meets the procedural requirements of the federal forfeiture provisions.
I agree with the rationale found in each of the decisions cited above. Interestingly enough, in none of those cases, either state or federal, did the courts ever place upon the government the affirmative obligation to disprove a claimant’s interest in the property. Neither did our General Assembly, I might add, when it enacted our Forfeiture Act. The Act requires only that the State show probable cause for the forfeiture once the parties are at issue. See 725 ILCS 150/9(G) (West 1992). Unfortunately, my colleagues today have taken it upon themselves to substitute their own judgment for that of the elected members of our legislature. As a result, the State of Illinois, unlike any other state, now finds itself in the unenviable position of having to disprove a claimant’s interest in the property despite the fact that the nature and extent of that interest are facts peculiarly within the claimant’s knowledge.
Moreover, the majority fails to explain how the State will be able to garner the information it will need to meet this burden at the pleading stage of the forfeiture proceeding. I note that where currency is involved, the task of establishing that an individual is not the owner of all or part of the money is difficult, if not impossible. This is particularly true where, as in the instant case, the claimant invokes his fifth amendment privilege in his answer. I remind my colleagues that the legislature expressly limited the class of persons entitled to assert a claim against seized property in the forfeiture proceedings — no doubt intending to prevent specious claims. In my view, the majority’s ruling will open the door to opportunistic claims being made. As one federal judge has aptly noted, placing the burden of pleading standing on the claimant makes sense because "absent standing, [the claimant] cannot contest the government’s probable cause”; otherwise, " 'persons with no interest whatsoever in seized property could make a handsome living filing claims.’ ” United States v. Certain Real Property Located at 16510 Ashton, Detroit, Wayne County, Michigan, 47 F.3d 1465, 1473 (6th Cir. 1995) (Boggs, J., dissenting), quoting D. Smith, Prosecution and Defense of Forfeiture Cases § 9.04, at 9 — 62.7 (1994).
Even more troubling, however, is the fact that the majority fails to fully appreciate the fell consequences of its decision to incorporate common law principles of standing into statutory forfeiture proceedings. Common law standing is, of course, an affirmative defense, and, as such, it must be pleaded or else it is waived. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994). Therefore, should the State ever fail to raise standing during the pleading stage, the State will be forever barred from seeking to remove the claimant from the litigation — even if it is later determined that the claimant lacks the requisite property interest set forth in section 9(C) of the Forfeiture Act. Such a result not only contravenes the dictates of the General Assembly, but it defies common sense.
I would be remiss, however, if I did not point out that my colleagues at least acknowledge the contrary federal case law in this area. Nevertheless, the majority cavalierly dismisses these cases under the mistaken belief that they are "grounded largely on the jurisdictional case and controversy requirements imposed by article III of the United States Constitution.” 177 Ill. 2d at 328. My colleagues, however, fail to realize that (i) article III standing and statutory standing, while conceptually related, are not the same, and (ii) both article III standing and statutory standing must be satisfied in order for a claimant to contest the forfeiture of seized property in the federal courts. See United States v. One Parcel of Real Property With Buildings, Appurtenances & Improvements Known as 116 Emerson Street, Located in the City of Providence, Rhode Island, 942 F.2d 74, 78 (1st Cir. 1991) (holding that an ownership allegation made by the claimant satisfies both article III standing and prudential (statutory) standing concerns); United States v. United States Currency in the Amount of $103,387.27, 863 F.2d 555 , 560 (7th Cir. 1988) (noting distinction between the types of standing, but nevertheless affirming order granting government’s motion to dismiss the claim because claimant’s allegations failed to meet statutory standing requirements). Therefore, to the extent that the federal decisions are grounded upon the concept of statutory standing, they are relevant to the issue presented in the case at bar.
Other courts have recognized as much. For example, in People v. $28,500 United States Currency, 51 Cal. App. 4th 447, 468 , 59 Cal. Rptr. 2d 239, 253 (1996), the California Court of Appeal undertook an exhaustive review of federal law in order to determine whether a forfeiture claimant was an interested party "within the meaning of the forfeiture statutes.” After noting that "standing is ordinarily treated as a threshold legal issue in the federal system,” the court concluded, "We see no reason to apply a different rule in proceedings initiated under the California forfeiture statutes.” (Emphasis added.) $28,500, 51 Cal. App. 4th at 467 , 59 Cal. Rptr. 2d at 252 . Notably absent from the court’s discussion is any mention of the inapplicability of the federal rationale on the basis of article III concerns. I, therefore, believe that the majority’s grounds for disregarding federal law are untenable.
Application of the Principles of Statutory Standing
Having outlined the reasons why I find the majority’s standing analysis wholly inapposite to statutory forfeiture actions, I now offer my own analysis of Mena’s standing, which I believe better comports with the intent of the General Assembly and is more faithful to this court’s prior decisions. In my opinion, the case at bar requires that this court determine whether Mena’s assertion of "exclusive ownership” in the property satisfied the standing requirements established by the legislature in the Forfeiture Act. My research suggests that it does.
Although the courts of this state have never examined what a claimant must plead in order to satisfy the statutory requirements of section 9(C), I note that the federal courts have addressed what is needed to satisfy the requirements of the comparable federal statute. The federal statute, like the Illinois statute, requires claimants to have a recognizable legal or equitable interest in the subject property. In light of the fact that the General Assembly intended for our statute to be construed in light of the federal forfeiture provisions, I believe that a review of those cases is helpful in determining whether Mena’s claim of "exclusive ownership” in the property satisfies section 9(C)’s mandate.
In United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th Cir. 1994), the federal government sought the forfeiture of certain monies it believed were used in connection with a drug transaction. The possessor of the money thereafter filed a verified claim for the money, stating that he owned some of the funds and was carrying the remainder for a client. The district court ultimately granted summary judgment in favor of the claimant. On appeal, the government argued, inter alla, that the claimant lacked standing because he had failed to specify in detail the nature of his possessory interest in the property. The Ninth Circuit Court of Appeals rejected the argument, holding that a claimant need not explain his interest in detail if the answer did "something more than conclusorily state that [the claimant] has some undefined interest.” $191,910.00, 16 F.3d at 1057 . The court reasoned that "a simple claim of ownership will be sufficient to create standing to challenge a forfeiture.” (Emphasis in original.) $191,910.00, 16 F.3d at 1058 . According to the Ninth Circuit, only bare assertions of "unexplained possession” would be deemed insufficient to confer standing. (Emphasis in original.) $191,910.00, 16 F.3d at 1058 . As a result, the claimant’s assertions were held to be adequate to satisfy the standing requirements necessary to challenge the forfeiture of the property. See also United States v. $38,000 in United States Currency, 816 F.2d 1538 (11th Cir. 1987) (holding that allegations of ownership or lesser possessory interests confer standing to contest forfeiture ac- . tians).
In so holding, the Ninth Circuit distinguished an earlier case from the Second Circuit Court of Appeals, Mercado v. U.S. Customs Service, 873 F.2d 641 (2d Cir. 1989). Unlike the claimant in $191,910.00, the claimant in Mercado did not give any explanation as to the type of interest he held in the property, i.e., ownership or lesser possessory interest. The district court ruled that without an assertion of some type of legally recognized possessory interest, the claimant lacked standing to challenge the forfeiture. The court of appeals affirmed, holding that in order for a claimant to satisfy standing, the answer must contain "some indication that the claimant is in fact a possessor, not a simple, perhaps unknowing custodian.” Mercado, 873 F.2d at 645 . Although the court in Mercado found that the claimant lacked standing under the circumstances of that case, the court nevertheless implicitly recognized that a possessor’s allegations of ownership may confer standing. Mercado, 873 F.2d at 645 .
Not all of the federal circuits, however, agree that a simple allegation of ownership can confer standing in a forfeiture proceeding. The Fifth Circuit Court of Appeals has held that "a bare assertion of ownership of the res, without more, is inadequate to prove an ownership interest sufficient to establish standing.” United States v. $38,570 in U.S. Currency, 950 F.2d 1108, 1112 (5th Cir. 1992). Even so, the Fifth Circuit has found that, in such a case, standing requirements will be met when that bare assertion is viewed in conjunction with the allegations contained in the government’s forfeiture complaint. For example, in United States v. $38,570, the forfeiture complaint alleged that the claimant was present at the time the money was seized and had control over it. Those facts, coupled with the claimant’s bare assertion of ownership in his verified claim, established standing. $38,570, 950 F.2d at 1112 .
In my view, Mena has standing to contest the forfeiture in this case under either the approach taken by the Ninth and Eleventh Circuits or the more restrictive analysis employed by the Fifth Circuit. The record here reveals that the State’s own complaint alleged that Mena was present at the time the money was seized and had control over it. In addition, the State attached to its complaint certain affidavits which indicated that it had notified Mena of the forfeiture proceeding. In those affidavits, the State identified Mena as an owner of or interest holder in the property. Finally, Mena himself claimed “exclusive ownership” in the property in his verified answer to the amended complaint. Under these circumstances, Mena clearly had standing to challenge the forfeiture action.
The Fifth Amendment
My next point of disagreement with the majority centers on its treatment of Mena’s assertion of the fifth amendment privilege. The record in this case reflects Mena invoked the privilege in his answer instead of revealing “the date, identity of transferor, and circumstances of [his] acquisition of the interest in the property,” as required under section 9(D)(iv) of the Forfeiture Act. The circuit court ruled that Mena could not invoke the fifth amendment and, therefore, struck his answer. On appeal before this court, Mena argues that the General Assembly’s requirements, contained in section 9(D), cannot supersede the rights guaranteed to him under the fifth amendment of the United States Constitution. In disposing of this issue, my colleagues summarily note the following:
"The statutory requirements for an answer contained in section 9(D) do not represent any burden of proof on the issue of standing, but are merely a set of interrogatories to be answered by a claimant to expedite the proceedings. Therefore, Jesus’ invocation of the fifth amendment does not serve as a basis for striking his answer because it is not being used to satisfy a burden of production on the issue of standing.” 177 Ill. 2d at 332.
First, I do not understand the majority’s dual reference to a "burden of proof” and a "burden of production.” Presumably, by "burden of proof’ my colleagues are referring to Mena’s obligation under section 9(G). See 725 ILCS 150/9(G) (West 1992) (requiring a claimant to "show[ ] by a preponderance of the evidence that the claimant’s interest in the property is not subject to forfeiture”). I would simply note, however, that any discussion of the burden of proof is premature at this time. Mena’s invocation of his fifth amendment right does not arise in the context of a trial but, rather, in the context of his answer to the State’s complaint, i.e., during the pleading stage. Matters concerning the burden of proof, therefore, like common law standing, have nothing to do with this case. Moreover, I am puzzled by the majority’s characterization of the requirements of section 9(D) as "a set of interrogatories to be answered by a claimant to expedite the proceedings.” Although I may agree that Mena’s compliance with section 9(D) will expedite this litigation, I, unlike my colleagues, do not view the requirements of section 9(D) as mere interrogatories. As I pointed out above, the General Assembly intended section 9(D) to act as a mechanism for limiting the class of persons entitled to contest the forfeiture of the property. The requirements of section 9(D), therefore, not only expedite forfeiture proceedings, but also serve as an effective means of thwarting the filing of specious claims.
At any rate, my colleagues skirt the real issue of whether a claimant may invoke the fifth amendment in his or her answer in lieu of providing the information required under section 9(D). I would answer that question, however, in the following manner.
The fifth amendment provides that "[n]o person *** shall be compelled in any criminal case to be a witness against himself ***.” U.S. Const., amend. V. Although the amendment speaks to criminal proceedings, the United States Supreme Court has recognized that the right provides a privilege "not to answer official questions put to [an individual] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [the individual] in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 , 38 L. Ed. 2d 274, 281 , 94 S. a. 316, 322 (1973). Accordingly, the Court has applied the privilege to civil proceedings whenever the answer given might tend to subject its provider to criminal liability. See McCarthy v. Arndstein, 266 U.S. 34, 40 , 69 L. Ed. 158, 160 , 45 S. a. 16, 17 (1924).
In this case, it is beyond dispute that Mena’s disclosure of the circumstances surrounding his acquisition of the property would pose a realistic threat of future criminal liability. Indeed, requiring Mena to comply with section 9(D)(iv) by specifying "the date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property” could potentially and impermissibly furnish "a link in the chain of evidence needed to prosecute.” Hoffman v. United States, 341 U.S. 479, 486 , 95 L. Ed. 1118, 1124 , 71 S. Ct. 814, 818 (1951). Moreover, although it may be argued that forfeiture claimants are not compelled to intervene in the proceedings and therefore do so at their own will, such claimants, when confronted by the disclosure provisions of section 9(D), nevertheless face a Hobson’s choice: either surrender the constitutional privilege and subject themselves to possible criminal prosecution, or forgo the opportunity to contest the forfeiture. In fact, given the mandatory nature of section 9(D)’s disclosure provisions, the failure to provide the information results in the loss of a claimant’s ability to proceed in the action — virtually assuring the forfeiture of the property to the State. Without a claimant, the circuit court need only determine that probable cause exists for the forfeiture of the property. 725 ILCS 150/ 9(G) (West 1992). The State would not be required to offer any evidence on the question of innocent ownership or other potential defenses a claimant might have. As the United States Supreme Court has recognized, the purpose of an adversary hearing is to insure the requisite neutrality that must inform all governmental decisionmaking, which is "of particular importance [in forfeiture cases] where the Government has a direct pecuniary interest in the outcome of the proceeding.” United States v. James Daniel Good Real Property, 510 U.S. 43, 55-56 , 126 L. Ed. 2d 490, 504 , 114 S. Ct. 492, 502 (1993). See also Harmelin v. Michigan, 501 U.S. 957 , 978 n.9, 115 L. Ed. 2d 836 , 854 n.9, 111 S. Ct. 2680 , 2693 n.9 (1991) (noting that "it makes sense to scrutinize governmental actions more closely when the State stands to benefit”); United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d Cir. 1992) (disapproving of ex parte hearings in forfeiture cases because of their lesser constitutional projections).
Finally, and more importantly, forfeiture proceedings must comport with the due process clauses of the fifth and fourteenth amendments and, therefore, require both notice and the opportunity to be heard. See United States v. James Daniel Good Real Property, 510 U.S. at 48 , 126 L. Ed. 2d at 500 , 114 S. Ct. at 498 . If this court were to disallow the assertion of the fifth amendment in the answer, those claimants who do so would lose the opportunity to be heard in the case simply because of the invocation of the privilege. This cannot be so. As the United States Supreme Court has noted, it is "intolerable that one constitutional right should have to be surrendered in order to assert another.” Simmons v. United States, 390 U.S. 377, 394 , 19 L. Ed. 2d 1247, 1259 , 88 S. Ct. 967, 976 (1968). Thus, for the foregoing reasons, I believe that forfeiture claimants, such as Mena, should be permitted to invoke the fifth amendment right against self-incrimination with respect to section 9(D)(iv) of the Forfeiture Act.
Notwithstanding the above, the State points to a number of federal forfeiture cases in which claimants were not allowed to invoke their fifth amendment privilege. See, e.g., Mercado v. U.S. Customs Service, 873 F.2d 641 (2d Cir. 1989); Baker v. United States, 722 F.2d 517 (9th Cir. 1983). However, under the federal forfeiture scheme, claimants are not required to disclose the potentially incriminating information obligated by section 9(D)(iv) of our Forfeiture Act. Compare 725 ILCS 150/9(D) (West 1992) with Fed. R. Civ. P. Supplemental R. C(6). Thus, because the statutory requirements contained in the federal forfeiture provisions differ from those enacted by our General Assembly, federal case law offers little assistance in resolving the fifth amendment question posed in this case.
Despite the lack of relevant federal precedent, I note that at least one sister state has allowed claimants to invoke the fifth amendment when disclosing information relating to a claimant’s acquisition of his or her interest in the property. See Wohlstrom v. Buchanan, 180 Ariz. 389 , 884 P.2d 687 (1994) (analyzing Arizona statutory provision virtually identical to section 9(D)(iv) of the Illinois Forfeiture Act). In Wohlstrom, the claimant refused to provide details surrounding his acquisition of the property because he claimed the information was protected under the fifth amendment. The trial judge struck the claimant’s answer because it did not comply with the statute. The Arizona Supreme Court reversed, holding that claimants could assert the fifth amendment during the pleading stage of a forfeiture case. The court reasoned that the legislature could not compel forfeiture claimants to choose between asserting the fifth amendment or forgoing the opportunity to be heard in the forfeiture proceeding. Interestingly, in arguing against the allowance of a fifth amendment invocation, the State of Arizona pointed to the very same federal cases cited by the State in this case. The court concluded that the federal cases were distinguishable because the federal statutory provisions differed significantly from those of Arizona. Wohlstrom, 180 Ariz. at 393 , 884 P.2d at 691 . I agree with this analysis and, likewise, would allow Mena to invoke the fifth amendment in his answer to the State’s complaint in this case.
That said, however, I emphasize that the assertion of the fifth amendment — without impunity — can only be made at the pleading stage. Those claimants who continue to assert the fifth amendment during the evidentiary portion of the case would do so at' their own risk. Forfeiture proceedings are civil in nature, and in civil cases, fact finders are entitled to draw negative inferences against those who assert fifth amendment rights against self-incrimination. Baxter v. Palmingiano, 425 U.S. 308, 317-18 , 47 L. Ed. 2d 810, 820-21 , 96 S. Ct. 1551, 1557-58 (1976). In other words, once a case moves beyond the pleading stage, a claimant may not necessarily satisfy his or her evidentiary burden should he or she choose to assert the fifth amendment rather than present evidence relevant to the innocent-owner defense. I further acknowledge, unlike my colleagues, that there may be times when, in order to establish a sufficient property interest, it will be necessary for a claimant to provide some incriminating information. Under these circumstances, other remedies may be appropriate, such as staying forfeiture proceedings pending the outcome of any related criminal charges or requiring immunity for the claimant’s disclosures. See Simmons, 390 U.S. at 394 , 19 L. Ed. 2d at 1259 , 88 S. Ct. at 976 (testimony to establish standing must be immunized); All Assets, 971 F.2d at 905 (recommending stay); United States v. U.S. Currency, 626 F.2d 11, 16-18 (6th Cir. 1980) (exploring alternatives for accommodating parties’ interests).
In light of the foregoing, I would reverse the circuit court’s order striking Mena’s answer on the basis of his invocation of the fifth amendment. Accordingly, I would also reverse the entry of the default judgment based upon the stricken answer.
Sufficiency of the State’s Complaint
The final issue I wish to address in this dissent concerns the factual sufficiency of the State’s complaint. Discussion of this issue requires that I first consider the related question of whether Mena is even entitled to raise this issue on appeal. Contrary to the majority, I do not believe that he is. Mena, having filed an answer subsequent to the denial of his motion to strike, waived any further opportunity to challenge the sufficiency of the State’s complaint.
This court has previously held that where the circuit court denies a party’s motion to strike a complaint based on factual insufficiency and that party thereafter elects to file an answer to that complaint, the party waives any defect in the pleading on appeal. Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994), citing Cottrell v. Gerson, 371 Ill. 174 (1939). See also Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 155 (1983); 3 R Michael, Illinois Practice § 27.5, at 513 (1989). The record in this case reflects that Mena did, in fact, move to strike the State’s complaint on the basis of factual insufficiency. The circuit court granted the motion in part and denied it in part. Shortly thereafter, Mena elected to file an answer to the amended complaint. Indeed, it was this answer which spawned the entire dispute concerning Mena’s right to assert his fifth amendment privilege. In any event, Mena, having filed an answer to the complaint after the denial of his motian to strike, has waived the right to challenge the sufficiency of the State’s complaint on appeal. Adcock, 164 Ill. 2d at 60 . Accordingly, I agree with the appellate court to the extent that it considered this issue waived.
In reaching this conclusion, I am not unmindful of the fact that our Forfeiture Act is silent as to how a claimant may challenge the sufficiency of the State’s complaint. In this regard, I note that the Act requires a claimant to first appear in the in rem action by filing what the statute refers to as an "answer.” See 725 ILCS 150/9(0) (West 1992). Consequently, because a claimant’s first appearance in the action consists of the filing of an answer, there appears to be no opportunity for a claimant to present any pre-answer motions to strike and/or dismiss. Thus, our Forfeiture Act does not admit of the recognizable pre-answer motion practice usually associated with civil actions. Moreover, the lack of this preanswer motion practice stands in stark contrast to the procedure employed under the federal forfeiture statute. Under federal law, a claimant initially files a "claim” which establishes his or her requisite standing. Fed. R. Civ. P. Supplemental R. C(6). The federal statute then requires the claimant to "serve an answer within 20 days after the filing of the claim.” Fed. R. Civ. P. Supplemental R. C(6). During the time period between the filing of the claim and the filing of the answer, claimants in the federal courts may file motions to strike which challenge the factual sufficiency of the government’s complaint. As a result, federal courts have routinely entertained such motions prior to filing of the claimants’ answers. On the other hand, the Illinois Forfeiture Act does not require both a claim and answer; therefore, the claimant does not have any time within which to file a motion to dismiss prior to filing his answer.
In pointing out the deficiencies of our Forfeiture Act with respect to the lack of a pre-answer motion practice, I realize that, in this case, the circuit court provided Mena with the opportunity to challenge the factual sufficiency of the State’s complaint. Therefore, Mena was not prejudiced by any of the above-noted deficiencies contained in our Forfeiture Act. However, my discussion of these deficiencies should not be viewed as merely an academic one — I write on this point in order to alert our General Assembly to the problem in the hope that the General Assembly will rectify our statute or more clearly specify the procedure by which a claimant may challenge the sufficiency of the State’s complaint.
I now turn my attention to the substantive arguments regarding the factual sufficiency of the State’s complaint. Although I disagree with my colleagues’ conclusion that this issue has not been waived, Mena’s contention, nevertheless, lacks merit. The complaint in this case specifically alleges when, where, and under what circumstances the money was seized. For instance, the complaint alleged that, on July 17, 1993, Illinois state troopers stopped to assist a stranded motorist, Jesus Mena, and his family as they stood outside a van on Interstate 55. The troopers eventually learned that the vehicle, a 1988 Chevrolet Astro Van, was registered to Melvin J. DeJesus. During a subsequent search of the vehicle, the troopers found $1,124,905 hidden in makeshift compartments built into the floor of the vehicle. The complaint further alleged "[tjhat the U.S. currency was furnished or intended to be furnished in exchange for a substance, or the proceeds thereof, in violation of the Controlled Substances Act; ***[and] [tjhat the troopers seized the [currency and the vehicle] which is subject to forfeiture based upon the statutory provisions of 720 ILCS 570/505 ***.” In its prayer for relief, the State requested the forfeiture of both the van and the currency. In my opinion, these allegations are factually sufficient to withstand a motion to strike.
My conclusion in this regard is consistent with decisions of the federal courts which have addressed what must be pied by the government in a complaint in order to withstand a motion to strike on the basis of factual insufficiency. Although the federal rules of civil procedure ordinarily require only notice pleading, Congress has, nevertheless, mandated that a more heightened pleading standard be employed in federal forfeiture actions. As a result, the government’s complaint must contain specific and particular allegations. See United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1204 (8th Cir. 1992); United States v. One Parcel of Real Property, 921 F.2d 370, 375 (1st Cir. 1990); United States v. $39,000 in Canadian Currency, 801 F.2d 1210 , 1216 n.3 (10th Cir. 1986); see also United States v. Daccaratt, 6 F.3d 37, 47 (2d Cir. 1993). In this way, the federal forfeiture pleading rules are similar to those of this state, which requires fact pleading. For this reason, reliance on federal case law to resolve the issue of what the state must plead in its complaint is particularly appropriate.
The federal courts recognize that the pleading requirements of the federal forfeiture provisions do not require the government to meet, at the pleading stage, its ultimate burden of proof at trial. See $150,660.00, 980 F.2d at 1204 ; United States v. Real Property Located at 2323 Charms Road, Milford Township, Oakland County, Michigan, 946 F.2d 437, 441 (6th Cir. 1991). Thus, a federal forfeiture complaint "need not allege facts sufficient to support 'a reasonable belief that specific property is tainted’, but facts sufficient to support a 'reasonable belief that the government [can] demonstrate probable cause’ for finding the property tainted.” (Emphasis in original.) $150,660.00, 980 F.2d at 1205 , quoting One Parcel of Real Property, 921 F.2d at 376 , quoting United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 640 (1st Cir. 1988). Applying this standard, the federal courts have held that allegations concerning the discovery of large amounts of cash are sufficient to meet the heightened pleading requirements of federal forfeiture actions. United States v. U.S. Currency in the Amount of $150,660.00, 980 F.2d 1200, 1206 (8th Cir. 1992); see also United States v. $121,100.00 in United States Currency, 999 F.2d 1503, 1507-08 (11th Cir. 1993) (holding that, even at trial, the government, in order to establish probable cause, need not connect the currency to any particular drug transaction nor must its evidence point to drugs to the exclusion of all other theories of illegal activity). I would adopt this standard of review in Illinois, given the fact that this court has held that fact pleading does not require a plaintiff to meet, at the pleading stage, its ultimate burden of proof. Board of Education of the Kankakee School District No. III v. Kankakee Federation of Teachers, Local No. 886, 46 Ill. 2d 439, 446 (1970) (acknowledging that a pleader is required to set out his or her evidence; only ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts). Applying the above principles to the case at bar, the State’s complaint in this case must be viewed as factually sufficient.
Conclusion
My colleagues’ decision evinces a misperception of the statutory nature of our civil drug forfeiture proceedings and a disregard of the judiciary’s proper role in interpreting the statutes enacted by the legislature. Equally alarming, however, is the majority’s utter willingness to dismiss a highly developed, uniform body of case law from across the country in order to adopt its own problematic and questionable resolution to the issues presented for our review. Therefore, unlike the majority, I would reverse the order of the circuit court striking Mena’s answer to the State’s complaint. Accordingly, I would also vacate the order and judgment of default in favor of the State and would remand the matter for further proceedings consistent with my analysis.
JUSTICE MILLER joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744471. Public record. Not legal advice.