Governor Daniels Needs to Veto SEA 215, New Indiana Supreme Court Opinion Suggests New Law Giving Law Enforcement Civil Forfeiture Windfall Is Unconstitutional

Supreme Court Chief Justice
Randall T. Shepherd

Under Indiana's civil forfeiture statute, prosecutors and law enforcement officials are only entitled to keep proceeds relating to the cost of the particular law enforcement action.  The rest is to be paid to the Common School Fund.  Last year a number of news reporta and a lawsuit filed by my law firm exposed the fact that prosecutors and other law enforcement officials were pocketing 100% of civil forfeiture proceeds, including Marion County which hasn't a dime to the Common School Fund in years.  According to the Marion County Prosecutor's Office "law enforcement expenses" means all law enforcement expenses in the county regardless of whether they are connected to the seizure, an interpretation that is contradicted by the definition of "law enforcement costs" in IC 34-6-2-73.  Other county prosecutors have differing interpretations, almost all of which lets them pocket all civil forfeiture proceeds. 

Caught with their hand in the proverbial cookie jar, county prosecutors, their advocate Executive Director of the Indiana Prosecuting Attorney's Council Stephen Johnson, and Attorney General Greg Zoeller, helped pushed through Senate Bill 215, which allow prosecutors to deduct "administrative costs" before giving 85% of the booty to law enforcement.  Education would only get 15% of what is left.  For inexplicable reasons, Superintendent of Public Instruction Tony Bennett went along with this lopsided deal that hurts schools.

It should be noted that in the one county - Wayne - that followed the law, only 26% of the civil forfeiture proceeds were deemed law enforcement costs with an average of 74% of the money being paid to the Common School Fund.

Indiana Attorney General
Greg Zoeller

Many people have questioned whether any proceeds can be diverted from the Common School Fund as the Constitution (Article 8, Section 2) says that that fund is to be made up of "all forfeitures."  Faced with questions regarding the constitutionality of law enforcement pocketing civil forfeiture proceeds, Attorney General Zoeller in 2010 wrote an advisory opinion for "his clients" which said that "all" as used in the constitutional didn't actually mean "all" and that the legislature could divert civil forfeiture proceeds to law enforcement.

On the eve of consideration of Senate Bill 215, Chief Justice Shepherd, writing for a unanimous Supreme Court, sent a clear message to the General Assembly that what they were about to be doing would be considered unconstitutional.  In particular, Footnote #3 of Serrano v. State is most telling:

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. (emphasis supplied.)

Serrano dealt whether the State established sufficient evidence that the truck was used in connection with the transportation of cocaine. A divided Indiana Court of Appeals ruled against the State, overturning the forfeiture of Serrano's truck.  The issue of the division of proceeds between law enforcement and the Common School Fund wasn't even raised in the trial court or at the Court of Appeals.

Since the Supreme Court was inclined to uphold the Court of Appeals decision, the Court could have simply denied transfer.  Instead the Supreme Court went out of its way to discuss the history of the Constitution and the Common School Fund.  The Court in Footnote #3 clearly rejected the Zoeller opinion, finding unanimously that the constitutional "all" includes civil forfeitures and that at best only the "limited diversion" of "actual" law enforcement expenses might be permitted under the Constitution.  

Translation:  while the status quo regarding deducting "law enforcement expenses" might be constitutional (assuming the law regarding calculating law enforcement costs is actually followed contrary to present practice in most counties whee law enforcement pockets 100% of the money), certainly the 85% bill, which gives law enforcement a windfall at the expense of schools, will be found unconstitutional.

This is a bill that definitely deserves a gubernatorial veto.