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Sunday, August 15, 2010
Ind. Law - Asset forfeiture laws and the Common School Fund [Updated]
The Indianapolis Star has a long front-page story today on asset forfeitures, pointing out that such monies are required by law to go to the Common School Fund, but hardly ever make it there because law enforcement entities first deduct their costs. In keeping with the Star's recent practice, the excellent story is not available online.
Here are some items not touched or, or not developed fully, in the story, not in any particular order.
- It is not only Indiana statute, but the Indiana Constitution, that requires that these monies be deposited in the Common School Fund. Article 8, Sec. 2 provides:
The Common School fund shall consist of the Congressional Township fund, and the lands belonging thereto;
The Surplus Revenue fund;
The Saline fund and the lands belonging thereto;
The Bank Tax fund, and the fund arising from the one hundred and fourteenth section of the charter of the State Bank of Indiana;
The fund to be derived from the sale of County Seminaries, and the moneys and property heretofore held for such Seminaries; from the fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue;
All lands and other estate which shall escheat to the State, for want of heirs or kindred entitled to the inheritance;
All lands that have been, or may hereafter be, granted to the State, where no special purpose is expressed in the grant, and the proceeds of the sales thereof; including the proceeds of the sales of the Swamp Lands, granted to the State of Indiana by the act of Congress of the twenty eighth of September, eighteen hundred and fifty, after deducting the expense of selecting and draining the same;
Taxes on the property of corporations, that may be assessed by the General Assembly for common school purposes.
Article 2, Sec. 3:
Section 3. The principal of the Common School fund shall remain a perpetual fund, which may be increased, but shall never be diminished; and the income thereof shall be inviolably appropriated to the support of Common Schools, and to no other purpose whatever.
- Then-Attorney General Stephen Carter and his then-Deputy, Greg Zoeller, issued a 7-page Official Opinion (2003-5) dated June 17, 2003, that dealt with Sec. 3, whether principal could be withdrawn from the Common School Fund. The opinion says, "no," concluding:
It is our opinion that to the extent House Enrolled Act 1001 (Public Law 224-2003) requires the Treasurer to diminish the principal of the Common School Fund, it is unconstitutional as a violation of Article 8 of the Indiana Constitution.Along the way, the opinion gives a good history and analysis of Article 8.
- But Official Opinion 2010-1, issued May 12, 2010, deals with civil forfeitures and the Common School Fund. Some quotes:
Does the fine and forfeitures provision in Article 8, § 2 of the Indiana Constitution apply to civil forfeiture actions brought under Ind. Code ch. 34-24-1?
It is our opinion that Article 8, § 2 of the state constitution does not apply to forfeiture actions brought under Ind. Code ch. 34-24-1. Article 8 of the Indiana Constitution provides for the funding of the common school fund, part of which is derived "from the fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue". Art. 8, § 2. A proceeding under Indiana's forfeiture law is civil in nature, and it is only fines and forfeitures from criminal proceedings that must be paid into the common school fund.
- Here is IC 34-24-1, Forfeiture of Property Used in Violation of Certain Criminal Statutes. IC 34-24-1-4(d)(2)(D) provides "(D) any excess in value of the proceeds or the money over the law enforcement costs be forfeited and transferred to the treasurer of state for deposit in the common school fund."
- Here is a long list of earlier ILB entries dealing with asset forfeitures. A number of them relate to the Delaware County Prosecutor's handling of drug forfeiture monies.
- IC 35-33-5-5 deals with the disposition of property held as evidence, it does not include the words "forfeiture" or "common school fund."
- Paul Ogden had a long entry on July 22, 2010 on his blog, headed "Indiana Civil Forfeiture Law - Where is the Money Going?."
- This report, from the Institute for Justice, published in March, 2010, is titled "Policing for Profit: The Abuse of Civil Asset Forfeiture." Read the overview.
- The SCOTUS heard the case this term of Alvarez v. Smith, from the 7th Circuit. In this Oct. 14, 2009 ILB entry, the WSJ is quoted:
Illinois law allows "innocent owners" to reclaim seized property. But in practice they may have to wait months -- or in Ms. Brunston's case, three years -- before recovering their cars.As also noted in the ILB entry:
Last year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled that the Constitution requires that owners get a more timely chance to seek return of their property.
The State of Indiana has joined a brief on behalf of Petitioner, arguing that the 7th Circuit's decision requiring that owners receive a more timely chance to reclaim their property should be reversed.On December 8, 2009, the SCOTUS vacated and remanded the case:
On December 8, the Court held that the question presented by Alvarez v. Smith is now moot. As a result, it remains uncertain how long local law enforcement may hold seized property without providing administrative review. [Thanks to the SCOTUSblog Wiki entry.]
[Updated 8/16/2010] Attorney Paul K. Ogden, ROBERTS & BISHOP, writes this morning to note:
Some people are grossly misinterpreting that [5/12/2010 AG] opinion. It says that only criminal forfeiture MUST go to the common school fund. Civil forfeiture doesn't have to...but the legislature has made the decision that the excess above law enforcement costs goes to the common school fund. The opinion expressly recognizes that. A few people I've run across misinterpret the AG opinoin as that even though the legislature says excess civil forfeiture funds goes to the common school fund under the statute it doesn't have to because it's not constitutionally mandated per the AG opinion. Obviously that's an incorrect way to interpret the law.
Posted by Marcia Oddi on August 15, 2010 05:56 PM
Posted to Indiana Law