Olivia Covington for www.theindianalawyer.com
Indiana’s civil forfeiture reform legislation continues to breeze through the General Assembly, with the House Judiciary Committee offering the most recent unanimous vote in support of the bill on Monday.
So far, Senate Bill 99 has not received any votes in opposition and has not been amended. Born of the Interim Study Committee on Courts and the Judiciary, the reform legislation was drafted with the intent of creating stronger protections for property owners whose property is seized as part of a forfeiture action, said Sen. Rod Bray, the Martinsville Republican who authored the bill. Bray told representatives Monday that the additional due process protections included in his bill were added in response to the federal ruling in Leroy Washington v. Marion County Prosecutor, et al., 1:16-cv-02980.
Specifically, SB 99 would require a judge to find probable cause for a law enforcement seizure within seven days of the seizure taking place. The legislation also builds in hardship protections for so-called innocent owners, or people who loan their property to friends and family without knowing the property will be used for illegal activity.
Bray also pointed to a provision in his legislation that would require prosecutors and law enforcement entities to report the results of forfeiture actions to the Indiana Prosecuting Attorneys Council. The senator said this was perhaps the most important aspect of his legislation because right now, the state only has anecdotal evidence about how forfeiture actions are handled.
Representatives from IPAC, the Indiana Public Defender Commission and Indiana Attorney General’s Office spoke in favor of SB 99 during committee testimony on Monday, with all parties agreeing the bill is a step in the right direction for Indiana’s civil forfeiture framework. Local civil forfeiture attorneys also think the legislation resolves some of the state’s major forfeiture issues, though they say they still have lingering concerns.
Monday’s testimony was nearly identical to what was heard in the Senate Judiciary Committee last month, though representatives from the Institute for Justice did not return to testify before the House committee. The institute filed a lawsuit against Indiana’s civil forfeiture framework in 2016, and told the Senate committee the provisions in SB 99 are both impractical and unconstitutional.
Though the IJ did not speak at Monday’s committee meeting, their constitutional concerns were still discussed in reference to SB 99’s proposed disbursement of civil forfeiture proceeds. The bill provides a disbursement mechanism that begins with attorney fees and trickles down through prosecutors and law enforcements before depositing any remaining funds into the Common School Fund.
While Article 8, Section 2 of the Indiana Constitution, requires all forfeiture proceeds to be deposited into the Common School Fund, Bray noted there are conflicting views on what that constitutional provision means in practice. Rep. Jerry Torr, R-Carmel, pointed to 2011 Indiana Supreme Court opinion in Martin Serrano v. State of Indiana, et al., 02S03-1104-CV-241, in which former Chief Justice Randall Shepard noted the issue of whether forfeiture proceeds must go into the common school fund “is an unresolved question.â€
Evansville Republican Thomas Washburne said the constitutionality of SB 99’s disbursement process will likely need future study, but said he didn’t think the issue should stop SB 99 from moving forward. Similarly, Indiana Attorney General Chief Deputy Aaron Negangard told the committee the AG’s office is not concerned with that portion of the bill.
SB 99 will now move to the full House for amendment and approval.
