Olivia Covington for www.theindianalawyer.com

A long-discussed civil forfeiture reform bill has cleared its first hurdle in the Indiana Statehouse.

The Senate Judiciary Committee on Wednesday passed Senate Bill 99, the civil forfeiture reform legislation born of the Interim Study Committee on Courts and the Judiciary. The 17-member committee studied the issue over the course of three meetings last year, guided by a Southern District ruling that struck down parts of the state’s civil forfeiture process as unconstitutional.

The district court’s central concern was the lack of a “post-seizure, pre-forfeiture hearing,” an absence that denies property owners’ due process rights, Chief Judge Jane Magnus-Stinson ruled in the case of Leroy Washington v. Marion County Prosecutor, et al., 1:16-cv-02980. To remedy that concern, SB 99 would require prosecutors to file a probable cause affidavit in the county of the seizure within seven days of seizing property. If the probable cause cannot be established, then the property must be returned.

Another concern frequently raised during the study committee’s meeting was the impact a seizure could have on “innocent owners,” or people who lend their vehicles or other property to a friend or relative, not knowing the property will be used for criminal activity. The reform bill addresses that concern by allowing a property owner to petition the court for provisional release, which can be granted with certain restrictions on when or where the property may be used.

The bill also would expedite civil forfeiture proceedings by requiring prosecutors to file a forfeiture action within 21 days of receiving a demand for return from the owner, or within 90 days if no demand is made. That’s a significant reduction from current law, which allows prosecutors to wait 90 days if the owner demands a return, and 180 days if not.

If the judge ultimately rules against the state’s forfeiture petition, the property in question must be returned, and the owners would not have to pay storage or transportation fees associated with the forfeiture action. But if the action ends in the prosecutor’s favor, SB 99 prescribes a process for disbursing the proceeds of the sale of the property.

First, attorney fees would be paid, and one-third of any remaining amount would then go into the prosecutor’s forfeiture fund to offset the costs of bringing the action. Then, 85 percent of remaining funds can be deposited into the state general fund, the general fund of the law enforcement unit that conducted the seizure, or a county law enforcement drug task force fund. After that, all remaining funds would be deposited into the common school fund.

Finally, SB 99 sets out reporting requirements for prosecutors who bring forfeiture actions. The attorneys must report data such as the amount of the seizure and the result of the action to the Indiana Prosecuting Attorneys Council, which can then use that information to study how the forfeiture process is working. The state is bereft of any such data right now, the bill’s author and committee chair Rod Bray, R-Martinsville, said.

Speaking on behalf of IPAC, Marion County Prosecutor Terry Curry and Delaware County Prosecutor Jeff Arnold offered their support for SB 99 during Wednesday’s meeting, telling committee members the bill adequately addresses the deficiencies Magnus-Stinson found in the current civil forfeiture framework. Kristen Casper with the Indiana Public Defender Council expressed general support for the idea of civil forfeiture reform but raised some concerns about the legislation.

Specifically, Casper advocated for an adversarial probable cause hearing and for a higher burden of proof – “clear and convincing” – to support a probable cause finding. Additionally, Casper said a third party, not IPAC, should collect and review all reported data.

The only person to speak in total opposition to SB 99 was Sam Gedge, an attorney with the Institute for Justice who found both practical and constitutional defects in the bill.

From a practical standpoint, Gedge said allowing law enforcement entities to collect from the civil forfeiture proceedings would create an incentive for officers to conduct seizures on low-level offenses. And from a constitutional perspective, Gedge said Article 8 Section 2 of the Indiana Constitution requires all forfeiture proceeds to be deposited into the common school fund, so the disbursement system in SB 99 would be a violation of that constitutional provision.

Bray acknowledged there were questions surrounding civil forfeiture funds and the common school fund, but he said there was no judicial precedent providing an answer to those questions. The Institute for Justice is currently seeking judicial guidance through a Marion County case, Jeana M. Horner, et al. v. Terry R. Curry, Marion County Prosecutor’s Office, et al., 49D06-1602-PL-004804. Gedge said a trial and possibly appellate court ruling could be handed down in that case within the next year, so he urged the committee to hold the civil forfeiture issue until at least next year’s General Assembly.

Committee members, however, unanimously passed SB 99 Wednesday. It now heads to the full Senate for possible amendments and approval.