Chermane Smith, Edmanuel Perez, Tyhesha Brunston, Michelle Waldo, Kirk Yunker v. CITY OF CHICAGO, PHILIP J. CLINE, Superintendent of Police

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 12, 2010
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐1599
CHERMANE SMITH, EDMANUEL
PEREZ, TYHESHA BRUNSTON,
MICHELLE WALDO, KIRK YUNKER,
and TONY WILLIAMS,
Plaintiffs‐Appellants,
v.
CITY OF CHICAGO, PHILIP J. CLINE,
Superintendent of Police, and RICHARD
DEVINE, Cook County States Attorney,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 06 C 6423
Elaine E. Bucklo,
Judge.
ORDER
The district court, relying on Jones v. Takaki, 38 F.3d 321 (7th Cir. 1994), dismissed the
plaintiffs’ complaint in this case. On appeal, we overruled Jones, explaining, “[O]ur fresh
look at this issue causes us to conclude that given the length of time which can result
between the seizure of property and the opportunity for an owner to contest the seizure
under the DAFPA, some sort of mechanism to test the validity of the retention of the
property is required.” Smith v. City of Chicago, 524 F.3d 834, 838 (7th Cir. 2008).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐1599 Page 2
We remanded the case to the district court to “fashion appropriate procedural relief
consistent with this opinion.” Id. Our opinion, because it overruled Jones, was circulated
among all active members of the court pursuant to Circuit Rule 40(e). None of the judges
voted to rehear the case en banc. The case was not moot when we entered our judgment
reversing the district court.
Subsequently, the Supreme Court granted the defendants’ petition for a writ of
certiorari. But then, prior to oral arguments, the last of the named plaintiffs’ seized property
was returned to her. The Supreme Court therefore held that the case (and thus the appeal)
was moot. It vacated our judgment and remanded the case to us with instructions to
dismiss. Alvarez v. Smith, 130 S. Ct. 576. The Court cited United States v. Munsingwear, Inc.,
340 U.S. 36 (1950), as precedent for the vacatur order. Alvarez, 130 S. Ct. at 578, 581‐83. The
Court did not address the merits of the plaintiffs’ due process claim. Thus, neither the
plaintiffs nor the defendants had the benefit of a full and final review of the due process
issue that is at the core of this case.
When parties to a controversy cannot secure final review of the merits because the
case became moot before the Supreme Court could address the merits, the appropriate
relief, it seems, is an order vacating all prior judgments, without prejudice to any party’s
right to proceed or defend. See Munsingwear, 340 U.S. at 40. When, through happenstance,
a case becomes moot before final review is possible, vacatur is necessary to clear “the path
for future relitigation of the issues between the parties, preserving the rights of all parties,
while prejudicing none by a decision which . . . was only preliminary.” Alvarez, 130 S. Ct. at
581 (quoting Munsingwear, 340 U.S. at 40) (internal quotations omitted)). Considerations of
“equity and fairness,” Alvarez, at 582 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, 513 U.S. 18, 25‐26 (1994) (internal quotations omitted)), dictate that the parties
start over, without prejudice, when final review is not possible through no fault of the
parties themselves.
For these reasons, we believe the best course of action for us to take at this time is to
vacate our judgment and to remand the case to the district court for consideration, or
reconsideration, of issues that are not moot.
SO ORDERED.

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