Wednesday, April 27, 2011

Indiana Supreme Court Unanimously Rejects AG's Opinion That Constitution's "All Forfeitures" Does Not Include Civil Forfeiture

Today, the Indiana Supreme Court handed down a significant opinion on Indiana's civil forfeiture law.  The case dealt with the forfeiture of a truck and the evidence that supported that forfeiture.  While the case was not directly on point, the Supreme Court made note of "[t]he relative ease of effecting such forfeiture and the disposition of the assets have become a matter of public note" and even cited the front page November 14, 2010 article  written by Heather Gillers Mark Alesia & Tim Evans, Cashing in on Crime, Indianapolis Star, Nov. 14, 2010.

Indiana Attorney General
Greg Zoeller
To summarize, Indiana's Constitution says that the the Common School Fund will be made up of "all forfeitures."  On May 12, 2010, the Indiana Attorney General Greg Zoeller wrote an advisory opinion at the request of Steve Johnson of the Indiana Prosecuting Attorney's Council saying that "all forfeitures" only meant criminal forfeitures, not civil forfeitures.  I have no doubt that the AG's office issued that opinion not as an objective interpreter of the law, but rather as an advocate of county prosecutors wanting to continue with the status quo of pocketing all civil forfeiture proceeds.

Under Indiana's civil forfeiture law, law enforcement is only to keep the costs of the action, with the rest going to the common school fund.  Instead almost almost all counties doing civil forfeiture have kept all the money, including Marion County which hasn't contributed a dime to the common school fund in years.  Only $95,500 in  was paid to the common school fund by Indiana's 92 counties during the last three years.  A bill currently in conference committe would eliminate the law enforcement cost provision in favor of letting law enforcement keep 85% of the civil forfeiture loot.

Footnote 3 by the unanimous court clearly reveals the unwillingness of the Court to accept the AG's opinion that "all" doesn't actually mean "all."
From the proceeds, the court may except law enforcement expenses incurred ―for the criminal investigation associated with the seizure and a prosecutor‘s expenses associated with the forfeiture proceeding and the expenses related to the criminal prosecution. Ind. Code § 34-6-2-73 (2008). Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that ―all forfeitures‖ be deposited in the Common School Fund is an unresolved question.
At the very least, anything above ACTUAL law enforcement costs is going to be considered unconstitutional. The 85% figure in the bill in conference is far above actual costs and certainly wouldn't pass constitutional muster. Likewise the practice of keeping 100% of the money, i.e. pretending all the money is law enforcement costs, wouldn't find a friendly audience with the Indiana Supreme Court.

In Judge Oakes' opinion dismissing our case, he suggested a better "mule" to ride would be a constitutional challenge.  So we recently amended the complaint to change it from a qui tam into a straight constitutional challenge to law enforcement keeping civil forfeiture proceeds as costs.  The irony is that Attorney General Greg Zoeller could have worked on a resolution which ensured counties complied with the "law enforcement cost" provision, but instead chose to play hardball and get the 85% provision written into the law.  Because of those hardball tactics, Zoeller, IPAC's Steve Johnson and county prosecutors, are well on their way to going from getting 100% of civil forfeiture to getting nothing.


Gary R. Welsh said...

It looks like you have good case authority this time for Judge Oakes to reconsider his earlier decision with your amended complaint. Go get 'em.

Paul K. Ogden said...

Thanks, Gary.

Now if we can juust find a school district which is not afraid of retaliation by the Superintendent's Office, that woudl seal the deal. I'm sure they're going to try to challenge taxpayer standing. It looks like to me though they're delaying the inevitable.

Diana Vice said...

Appeal it, Paul. The Constitution is on your side.

Paul K. Ogden said...


I don't need to appeal anything. The rules say you have 10 days to amend the complaint when it's dismissed. That's what we did. We're still in court in front of a judge who already has indicated he thinks the law is unconstitutional.