Olivia Covington for www.theindianalawyer.com

The Institute for Justice is asking the Indiana Supreme Court to grant immediate review to a case challenging Indiana’s civil forfeiture policy, arguing the practice of diverting forfeiture proceeds away from the Common School Fund is unconstitutional and encourages “policing for profit.”

The Virginia-based legal organization filed a petition to transfer Jeana M. Horner, et al. v. Terry R. Curry, et al., 49D06-1602-PL-004804 on Thursday after Marion Superior Judge Thomas J. Carroll denied the Institute’s motion for summary judgment in March. The Institute — arguing on behalf of three Indianapolis couples — moved for summary judgment on the grounds that Indiana Code section 34-24-1-4 unconstitutionally allows civil forfeiture proceeds to be diverted to prosecutors’ offices and law enforcement before being deposited into the Common School Fund.

Article 8, Section 2 of the Indiana Constitution provides that funds “from all forfeitures which may accrue” must be deposited into the common school fund, a directive the institute argued has only one plain meaning. But Carroll disagreed, finding civil forfeitures “were unknown in 1851 when Article 8, Section 2 was added to the Indiana Constitution.”

Though Carroll upheld the constitutionality of Indiana’s current civil forfeiture framework, he declined to rule on the current version of the statute because it will soon be amended via Senate Enrolled Act 99. Scheduled to take effect on July 1, SEA 99 provides increased due process protections for property owners whose property is seized as part of a civil forfeiture action.

But most importantly to the instant case, SEA 99 creates a disbursement mechanism that begins with attorney fees, trickles down to prosecutors’ offices and law enforcement, and ends with all remaining funds going into the Common School Fund. Though the civil forfeiture reform bill sailed through the General Assembly with no votes in opposition, Rep. Matt Pierce, R-Bloomington, raised concerns on the House floor about whether the bill’s disbursement provision was constitutional.

The IJ argued in March that Carroll could rule on the civil forfeiture statute despite the impending amendment because SEA 99 presents the same alleged constitutional deficiencies, but the judge disagreed.

“This court does not give advisory opinions,” Carroll ruled in March.

Given that ruling, the Institute petitioned justices to immediately grant transfer to avoid “months of damaging delay.” Aside from an alleged ongoing constitutional violation, the IJ argued allowing the state to divert forfeiture proceeds from the Common School Fund would allow law enforcement to continue to “‘overreach’ when seeking punitive economic sanctions.”

The Institute’s petition took specific aim at the Marion County Prosecutor’s Office and Indianapolis Metropolitan Police Department, where the IJ said forfeiture proceeds are viewed as a law enforcement revenue source. It pointed to an incident in which the Marion County Prosecutor’s Office sued to forfeit a teenager’s car after the teen was found with snacks stolen from a playground concession stand.

“The question presented thus affects not only the deep-seated public rights enshrined in Article 8; it has broader implications for private-property and due-process rights statewide,” the petition says.

Finally, the plaintiffs urged the Supreme Court to grant transfer to resolve a longstanding constitutional question. The court first considered that question in 2011 when it heard Serrano v. State, 946 N.E.2d 1139, 1142 n.3 (Ind.), which noted that “the constitutionality of these ‘limited diversion(s)’ is ‘an unresolved question.’”

“The constitution means what it says,” IJ attorney Sam Gedge, who argued before Carroll, said in a Friday statement. “By ratifying a system that gives law enforcement a direct financial stake in the laws they enforce, the trial court’s decision threatens everyone’s property rights.”