Jeana M. Horner v. Terry R. Curry

FILED
Jun 27 2019, 2:56 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-PL-333
Jeana M. Horner, et al.
Appellants (Plaintiffs below)
–v–
Terry R. Curry, et al.
Appellees (Defendants below)
Argued: October 25, 2018 | Decided: June 27, 2019
Appeal from the Marion Superior Court, No. 49D06-1602-PL-4804
The Honorable Thomas J. Carroll, Judge
Opinion by Justice Massa
Justice Goff concurs.
Chief Justice Rush concurs in result in Part I, concurs in Part II, and dissents
from Part III, with separate opinion in which Justice David joins in part.
Justice David concurs in result in Part I and concurs in Parts II and III.
Justice Slaughter concurs in the judgment with separate opinion.
Massa, Justice.
The Indiana Constitution imposes on the General Assembly a duty “to
provide, by law, for a general and uniform system of Common Schools,
wherein tuition shall be without charge, and equally open to all.” Ind.
Const. art. 8, § 1. To help finance this lofty goal, our constitutional framers
established a “Common School fund,” the principal of which “may be
increased, but shall never be diminished.” Id. §§ 2, 3. Among other sources
of revenue, this Fund “shall consist” of “all forfeitures which may accrue.”
Id. § 2.
In implementing this constitutional command, Indiana’s Civil
Forfeiture Statute directs the transfer of proceeds from seized property “to
the treasurer of state for deposit in the common school fund.” Ind. Code §
34-24-1-4(d) (2018). But before these proceeds accrue to the Fund, the
Statute permits the allocation of forfeiture revenue to reimburse law
enforcement costs. Whether this cost offsetting is constitutional under
article 8, section 2 has been “an unresolved question” by this Court. See
Serrano v. State, 946 N.E.2d 1139, 1142 n.3 (Ind. 2011). Today, however, we
answer that question in the affirmative.
Facts and Procedural History
In 2013, law-enforcement personnel seized two vehicles from Jeana and
Jack Horner. The Marion County Prosecutor’s Office filed a forfeiture
action against the vehicles, claiming they had been used to transport
marijuana. The Horners eventually recovered their vehicles after the
underlying criminal charges were dismissed. Two and a half years later,
the Horners and others sued, as “Indiana citizens and taxpayers,” to
“redress Marion County’s profit-driven forfeiture program and to
vindicate the public rights secured by Article 8 of the Indiana Constitution
and the Civil Forfeiture Statute.” Appellees’ Supp. App. Vol. II, p.6. In
their claim against the Consolidated City of Indianapolis and Marion
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County and the Marion County Prosecutors Office, 1 Taxpayers sought
declaratory and injunctive relief, specifically alleging that the Indiana
Civil Forfeiture Statute unconstitutionally diverts forfeiture revenue from
the Common School Fund (or simply, the Fund).
The Statute in force when Taxpayers sued authorized the prosecutor to
file a complaint requesting the court to offset forfeiture revenue for
reimbursement of case-specific “law enforcement costs.” I.C. § 34-24-1-3(a)
(2011). If the prosecutor succeeded in showing by a preponderance of the
evidence that the property was subject to forfeiture, the court would
“determine the amount of law enforcement costs” and then order any
remaining proceeds which exceeded those costs to “be forfeited and
transferred to the treasurer of state for deposit in the common school
fund.” I.C. §§ 34-24-1-4(a), (d) (2002).
In 2018, however, the Indiana General Assembly amended the Statute.
See Pub. L. No. 47-2018, § 3, 2018 Ind. Acts 270, 273–76 (pertinent section
codified at I.C. § 34-24-1-4(d)(3)). Under the new Statute—which became
effective July 1, 2018—the prosecutor need not submit a formal request for
the reimbursement of forfeiture-execution costs. See I.C. § 34-24-1-3. And
instead of using the case-specific reimbursement scheme, as under the
former law, the new Statute outlines a specific formula for distributing
these costs. First, if the prosecutor’s office employs “outside counsel” to
handle the forfeiture, the proceeds pay for any attorneys’ fees accrued. I.C.
§ 34-24-1-4(d)(3)(A). Next, one-third of the remaining proceeds “shall be
deposited into the forfeiture fund established by the prosecuting
attorney.” I.C. § 34-24-1-4(d)(3)(B). Eighty-five percent of the residual
balance then goes to either the law-enforcement office that executed the
forfeiture or the state’s general fund. I.C. §§ 34-24-1-4(d)(3)(C), (D). The
1Taxpayers sued several defendants that have united as two camps on appeal: (1) the
Consolidated City of Indianapolis and Marion County, including Joseph Hogsett (in his
official capacity as Mayor of Indianapolis), Paul Babcock (in his official capacity as Director of
the Department of Public Safety), and Bryan Roach (in his official capacity as Chief of the
Indianapolis Metropolitan Police Department); and (2) the Marion County Prosecutors Office,
including Terry R. Curry (in his official capacity as Marion County Prosecuting Attorney).
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remaining ten percent is “forfeited and transferred to the treasurer of state
for deposit in the common school fund.” I.C. § 34-24-1-4(d).
After the Governor signed the new Statute into law, but before it went
into effect, Taxpayers moved to “amend or supplement their complaint”
with a challenge to the new Statute. Appellant’s App. Vol. II, p.159. Both
versions of the law, they argued, violated article 8, section 2 by offsetting
any forfeiture proceeds intended for the Fund. The trial court denied this
request and later granted summary judgment for the City, concluding that
the Statute was constitutional because civil forfeitures “were unknown in
1851 when Article 8, Section 2, was added to the Indiana Constitution.”
Appellant’s App. Vol. II, p.172. 2
Taxpayers appealed, requesting direct transfer to this Court under
Appellate Rule 56(A). 3 Because this “appeal involves a substantial
question of law of great public importance,” id., we accepted jurisdiction.
Standard of Review
The constitutionality of an Indiana statute is a pure question of law we
review de novo. City of Hammond v. Herman & Kittle Properties, Inc., 119
N.E.3d 70, 78 (Ind. 2019). These statutes, however, come to us “clothed
with the presumption of constitutionality until clearly overcome by a
contrary showing.” Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d
195, 199 (Ind. 2016) (internal quotations omitted).
2To be sure, the trial court’s decision implicated only the 1984 Statute. But the court’s
rationale applies to both the 1984 and 2018 versions. And “[i]f the operation of a challenged
statute is inevitable, ripeness is not defeated by the existence of a time delay before the statute
takes effect.” Ind. Gas Co. v. Ind. Fin. Auth., 977 N.E.2d 981, 992 (Ind. Ct. App. 2012), aff’d in part
and vacated on other grounds, 999 N.E.2d 63 (Ind. 2013).
3Taxpayers also requested expedited consideration under Appellate Rule 21(B), which we
denied.
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Discussion and Decision
Taxpayers argue that “[b]oth versions of the Civil Forfeiture Statute
violate the Indiana Constitution based on a straightforward application of
Article 8.” Appellants’ Br. at 16. They insist that “‘all forfeitures’” belong
to the Common School Fund, not just a percentage of those forfeitures. Id.
(quoting Ind. Const. art. 8, § 2).
The City counters that the legislature may define the circumstances
under which forfeiture proceeds vest in the Fund and that “awards of law-
enforcement costs are not forfeitures” that accrue to the state. City’s Br. at
16. The Prosecutor’s Office adds that the scope of article 8, section 2 does
not include civil forfeitures and that, even if it did, it confers no private
right of enforcement. Instead, the Prosecutor’s Office asserts, the General
Assembly can authoritatively define article 8, section 2’s scope.
Prosecutor’s Br. at 21.
I. Do Taxpayers have standing?
A threshold question for this Court is whether Taxpayers have standing
to litigate their claim.
The doctrine of standing asks whether the plaintiff is the proper person
to invoke a court’s authority. City of Indianapolis v. Indiana State Bd. of Tax
Comm’rs, 261 Ind. 635, 638, 308 N.E.2d 868, 870 (1974). Typically, “the
party challenging the law must show adequate injury or the immediate
danger of sustaining some injury.” Pence v. State, 652 N.E.2d 486, 488 (Ind.
1995) (citing Frothingham v. Mellon, 262 U.S. 447 (1923)). The purpose of
standing—along with the corollary doctrines of mootness and ripeness—is
to ensure the resolution of real issues through vigorous litigation, not to
engage in academic debate or mere abstract speculation. Id.
At a more fundamental level, standing implicates the constitutional
foundations on which our system of government lies. By requiring a party
to show a specific injury, the doctrine limits the judiciary to resolving
concrete disputes between private litigants while leaving questions of
public policy to the legislature and the executive. Indeed, standing
“precludes courts from becoming involved . . . too far into the provinces of
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the other branches.” Jon Laramore, Indiana Constitutional Developments, 37
Ind. L. Rev. 929, 930 (2004). It is a vital element in the separation of
powers, the disregard of which inevitably leads to “an overjudicialization
of the processes of self-governance.” Antonin Scalia, The Doctrine of
Standing as an Essential Element of the Separation of Powers, 27 Suffolk U. L.
Rev. 881, 881 (1983).
Unlike its federal counterpart, the Indiana Constitution imposes no
“case or controversy” restriction on the “judicial power of the State.”
Compare U.S. Const. art. III, with Ind. Const. art. 7. But the express
distribution-of-powers clause in our fundamental law performs a similar
function, serving as a principal justification for judicial restraint. See Ind.
Const. art 3, § 1 (dividing the “powers of the Government . . . into three
separate departments; the Legislative, the Executive including the
Administrative, and the Judicial”). And so, as with the other branches of
government, our responsibility lies in preserving these boundaries. 4
“Good fences make good neighbors,” after all. Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 240 (1995).
At its core, then, the doctrine of standing asks: Where should the
remedy lie? With the courts, or through the franchise? With judges, or
with our politically-accountable elected officials? Not every case discusses
these broad questions, but they’re always present in the pondering.
Here, the Prosecutor’s Office and the City both argue that our
constitutional framers intended no private right to enforce article 8.
Because the Common School Fund is “‘held by the State,’” they insist,
Prosecutor’s Br. at 14 (quoting Ind. Const. art. 8, § 7), the State alone may
4Of course, our distribution-of-powers doctrine works both ways. This Court has not
hesitated in finding infringement of the judicial power. See, e.g., State v. Monfort, 723 N.E.2d
407, 412 (Ind. 2000) (holding that, while “the legislature has the power to create and abolish
superior [and circuit] courts . . . within the limits of the Constitution,” it may not “do so in the
middle of a judge’s term” without “violat[ing] the separation of powers provision of the
Indiana Constitution”); Thorpe v. King, 248 Ind. 283, 287, 227 N.E.2d 169, 171 (1967) (holding
that the legislature cannot set aside final judgment of a court); Parkison v. Thompson, 164 Ind.
609, 626, 73 N.E. 109, 115 (1905) (holding that the legislature cannot dictate “the manner and
mode in which the courts shall discharge their judicial duties”).
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enforce article 8’s constitutional obligations, id. at 14–21. Nineteenth-
century precedent from this Court, they suggest, “confirmed” the framers’
intent. Id. at 17.
Taxpayers reject this proposition, arguing instead that “[t]his Court has
long held that Hoosiers may enforce public rights.” Appellants’ Reply Br.
at 26 (emphasis added). When “public rather than private rights are at
issue,” they maintain, “it is enough that the plaintiff be a citizen, and as
such interested in the execution of the laws.” Id. (internal quotations
omitted). And this right to public standing, they contend, encompasses
the right to “vindicate Article 8.” Id.
A. From the mid-nineteenth century through today, our
standing jurisprudence reveals a gradual shift toward
judicial restraint.
On first impression, the early precedent on which the City and the
Prosecutor’s Office rely would seem to bolster their argument that the
state alone may enforce article 8. See State ex rel. Smith v. McLellan, 138 Ind.
395, 398, 37 N.E. 799, 800 (1894) (“[T]he attorney general was the proper
relator in a suit to recover moneys belonging to the common-school fund
of the state.”); Bd. of Comm'rs of Tippecanoe Cty. v. State, 92 Ind. 353, 358
(1883) (same). But on closer look, nothing in those cases precludes a
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private party from enforcing article 8 on the state’s behalf. 5 To the
contrary, legislation enacted in the years immediately following
constitutional ratification permitted “any person” to “maintain an action
against” the township trustee, “in the name of the State of Indiana,” to
“recover for the use of the common school fund any sum not exceeding
ten dollars.” Act of Mar. 5, 1855, ch. 86, § 19, 1855 Ind. Acts 161, 165. See
also Act of Mar. 8, 1873, ch. 25, § 4, 1873 Ind. Acts 75, 77 (providing that
“the right of any person to bring suit in any court in any case arising
under the school laws shall not be abridged”) (emphasis added).
Consistent with this legislation, a long line of precedent from this Court
recognizes taxpayer standing to ensure the proper administration of
public funds, including revenues either vested in or intended for the
Common School Fund. See, e.g., Harney v. Indianapolis, Crawfordsville, &
Danville R.R. Co., 32 Ind. 244, 247 (1869) (recognizing taxpayer’s “interest
in the funds belonging to the county treasury as will enable him to
maintain a suit to prevent unlawful appropriations thereof”); Middleton v.
Greeson, 106 Ind. 18, 28–29, 5 N.E. 755, 761 (1886) (holding “that a tax-
payer may enjoin” a township trustee from “contract[ing] for the building
of a school-house, the cost of which would [have] largely exceed[ed] the
amount of the special school fund”); State ex rel. Colescott v. King, 154 Ind.
621, 623, 627–28, 57 N.E. 535, 536, 538 (1900) (holding that a taxpayer is
5 The Prosecutor’s Office also relies on this Court’s decision in Pennsylvania Co. v. State, 142
Ind. 428, 435–36, 41 N.E. 937, 940 (1895) (concluding that, even if the statutory allocation of
civil fines to the prosecuting attorney were unconstitutional, as the railroad argued, “that
would be a question properly arising between the state, for the benefit of the common school
fund, and [the] prosecuting attorney”). But we question whether that case applies at all. While
the statute at issue in Pennsylvania Co. referred to the $25 penalty as a “forfeiture,” this Court,
in a series of related cases, deemed it a civil fine, placing it beyond the reach of article 8,
section 2. See Toledo, St. L. & K.C.R. Co. v. Stevenson, 131 Ind. 203, 204, 30 N.E. 1082, 1082 (1892)
(rejecting appellant’s argument that proceeds from a civil fine “should go to the common
school fund alone” because article 8, section 2 “has reference to fines assessed in criminal
prosecutions”); State v. Indiana & I.S.R. Co., 133 Ind. 69, 79, 32 N.E. 817, 820 (1892) (concluding
that, because article 8, section 2 “has reference to fines assessed in criminal prosecutions,” the
$25 civil penalty imposed on the railroad “is not a fine, in that sense”). Pennsylvania Co.
expressly cites I.S.R. Co. as grounds for rejecting the railroad’s argument. See 142 Ind. at 436,
41 N.E. at 939.
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entitled to examine the county auditor’s records to “ascertain or discover
the true condition” of the public revenue); State v. Blind, 181 Ind. 689, 696,
105 N.E. 225, 227 (1914) (permitting taxpayer-plaintiffs to sue a township
trustee for the diminution of the Common School Fund in violation of
article 8, section 3); Mitsch v. City of Hammond, 234 Ind. 285, 289, 290, 125
N.E.2d 21, 23 (1955) (declaring that the “common school fund is a public
fund of the state” in which “a taxpayer has such an interest” as to “enable
him to maintain a suit . . . to prevent unlawful waste or appropriations
thereof”).
This legislation also codified the long-established principle that, when a
private party seeks to vindicate a public right, “it is not necessary . . . that
the relator should have a special interest in the matter.” Hamilton v. State
ex rel. Bates, 3 Ind. 452, 458 (1852). See also Bd. of Comm’rs of Decatur Cty. v.
State, 86 Ind. 8, 12 (1882) (concluding that the “decided weight of
authority is to the effect that where the question is one of public concern,
and the object of the mandate is to procure the enforcement of a public
duty, the relator need not show that he has any legal or special interest in
the result sought to be accomplished”). See also Louis L. Jaffe, Standing to
Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1269–75 (1961)
(discussing the English common-law origins of the public action).
Historically, then, our courts have been sympathetic toward standing,
permitting private plaintiffs to vindicate a variety of claims, whether to
enforce a public duty or to challenge the expenditure of public funds.
Indeed, our historical precedent is replete with suits in which private
parties, as relators, sought to compel the “levy [of] a railroad tax,” the
“repair [of] a bridge,” “due diligence in keeping the highways . . . in good
repair,” and the meeting of public officials for “the purpose of electing a
county superintendent of schools.” State ex rel. Sigler v. Bd. of Comm’rs of
Madison Cty., 92 Ind. 133, 134 (1883); State ex rel. Winterburg v. Demaree, 80
Ind. 519, 520 (1881); State ex rel. Cutter v. Kamman, 151 Ind. 407, 408, 51
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N.E. 483, 484 (1898); Wampler v. State ex rel. Alexander, 148 Ind. 557, 558, 47
N.E. 1068, 1068 (1897). 6
But is there a point at which judicial accommodation of these claims
threatens to upset the delicate balance of government powers that our
constitution embodies? Aren’t questions of tax policy, infrastructure
repair, and local elections better suited for the legislative and executive
branches of government?
By the mid-twentieth century, this Court—tracking jurisprudential
developments at the federal level—had signaled a more cautious
approach to standing, finding it insufficient for a plaintiff to possess
“merely a general interest common to all members of the public.” Terre
Haute Gas Corp. v. Johnson, 221 Ind. 499, 505, 45 N.E.2d 484, 486 (1942)
(citing Ex parte Levitt, 302 U.S. 633 (1937)). Rather, “[f]or the disposition of
cases and controversies,” this Court regularly required “adverse parties
before it.” City of Indianapolis v. Indiana State Bd. of Tax Comm’rs, 261 Ind.
635, 638, 308 N.E.2d 868, 870 (1974). And standing, as a threshold matter
in deciding a claim, also demanded these parties to “show injury.” Bd. of
Comm’rs of Howard Cty. v. Kokomo City Plan Comm’n, 263 Ind. 282, 286, 330
N.E.2d 92, 96 (1975).
Emblematic of this paradigm shift is Pence v. State, 652 N.E.2d 486 (Ind.
1995), in which the plaintiff challenged as unconstitutional a legislative
pay raise attached to an unrelated bill which the governor had signed into
law. 7 See Ind. Const. art. 4, § 19 (confining legislation “to one subject and
matters properly connected therewith”); id. § 29 (prohibiting an increase in
compensation for legislators “during the session in which [an] increase
may be made”). The suit aimed a judicial harpoon straight at the heart of
the legislative prerogative, attacking the practice of “logrolling,” a process
6While some states may not have recognized public standing, there was “a decided
preponderance of American authority in favor of the doctrine, that private persons may move
for a mandamus to enforce a public duty.” Union Pacific R.R. Co. v. Hall, 91 U.S. (1 Otto) 343,
355 (1875).
7The named appellant, with and on behalf of the Indiana Policy Review Foundation, is now
Vice President of the United States.
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common to lawmaking that often requires back-scratching compromise,
deal making, and coalition building. But in shielding “our state
constitutional scheme of separation of powers,” a majority of this Court
prudently held that, with no “interest beyond that of the general public,”
the plaintiff lacked standing. Pence, 652 N.E.2d at 488 (citing Ind. Const.
art. 3, § 1). “While the availability of taxpayer or citizen standing may not
be foreclosed in extreme circumstances,” the majority concluded, “it is
clear that such status will rarely be sufficient.” Id. (emphasis added).
The opinion drew the dissent of Justice Dickson, who would have
conferred standing on the plaintiff on two grounds: first, “as an Indiana
taxpayer to challenge the constitutionality of the expenditure of public
funds,” and second, “under Indiana’s public standing doctrine.” Id. at 489.
“Where public rather than private rights are at issue,” he opined, “the
usual requirements for establishing standing need not be met.” Id.
Justice Dickson’s view in Pence gained further traction eight years later
in State ex rel. Cittadine v. Indiana Department of Transportation, 790 N.E.2d
978 (Ind. 2003). The plaintiff in that case, as a “member of the motoring
public,” petitioned for a writ of mandamus, seeking to compel INDOT to
enforce a statute regulating railroad crossings. Id. at 984. The trial court
denied the writ and the Court of Appeals affirmed on grounds that the
plaintiff lacked standing. Despite this Court disposing of the case’s merits
on mootness grounds after the legislature amended the pertinent statute,
id., Justice Dickson wrote at length to “acknowledge the availability of the
public standing doctrine in Indiana courts,” id. at 979. “[W]hen a case
involves enforcement of a public rather than a private right,” he opined,
echoing his dissent in Pence, the plaintiff “need not have a special interest
in the matter nor be a public official.” Id. at 980 (internal quotation marks
omitted).
Despite the plaintiff’s complete lack of a “specific injury,” the Cittadine
opinion recites the general rule that standing requires a showing of harm
and “a personal stake in the outcome of the litigation.” Id. at 980, 979.
Application of this rule by the majority in Pence, the Court reasoned, was
“merely to express our exercise of judicial discretion with cautious
restraint under the circumstances.” Id. at 983. The recognition in Pence that
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public standing is limited to “extreme circumstances,” the Court
concluded, clearly “acknowledges the . . . doctrine.” 8 Id.
Just four months after the decision in Cittadine, this Court again
confronted the question of standing, this time in a constitutional claim
under the Indiana Bill of Rights. In Embry v. O’Bannon, taxpayer-plaintiffs
challenged the constitutionality of the state’s “dual enrollment” statute, a
measure allocating additional funds to parochial-school students enrolled
in public-school courses. 798 N.E.2d 157, 158 (Ind. 2003), modified on other
grounds by Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013); see Ind. Const.
art. 1, § 6 (prohibiting the expenditure of public funds “for the benefit of
any religious or theological institution”). Relying on Pence, both the trial
court and the Court of Appeals determined that the taxpayers lacked
standing. 798 N.E.2d at 161. This Court, however, conferred standing
while nevertheless upholding the statute as constitutional. Id. at 167.
Because of their “shared public interest as taxpayers in the allegedly
unconstitutional expenditure of public funds,” Justice Dickson reasoned,
joined by Justice Rucker, the plaintiffs fell “within the public standing
exception to the general standing requirement.” Id. at 160.
Justice Sullivan, joined by Chief Justice Shepard, wrote a separate
concurring opinion to “give more detailed attention” to standing. Id. at
167. Drawing on principles of Article III jurisprudence, the opinion
explains that, because the constitution imposes “‘no absolute bar’” to
taxpayer standing, those with a “concrete interest” in the expenditure of
public funds may challenge a government action as exceeding its
constitutional powers. Id. at 168–69 (quoting Flast v. Cohen, 392 U.S. 83, 88
8Although the majority in Pence spoke nothing of the public-standing doctrine, the Cittadine
Court—while recognizing this silence—cursorily concluded that the language in Pence
“clearly does not abrogate but rather acknowledges the . . . doctrine.” See State ex rel. Cittadine
v. Indiana Dep’t of Transp., 790 N.E.2d 978, 983 (Ind. 2003).
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(1968)). 9 In other words, taxpayer status alone cannot confer standing.
Instead, the parties must have “‘a personal stake in the outcome of the
controversy.’” Id. at 168 (quoting Flast, 392 U.S. at 99). 10 Because these
plaintiffs properly raised an express constitutional limitation on the
expenditure of public funds, Justice Sullivan concluded that the case
presented the requisite “extreme circumstances” to establish taxpayer
standing. Id.
So where does this leave us? How do we reconcile these ostensibly
competing theories of standing? 11
B. Taxpayer standing and public standing are distinct
doctrines.
In his dissent in Pence, Justice Dickson would have conferred standing
on the plaintiff both “as an Indiana taxpayer to challenge the
constitutionality of the expenditure of public funds” and “under Indiana’s
public standing doctrine.” 652 N.E.2d at 489. The Court in Cittadine,
however, conflated these distinct grounds, creating a single public-
standing doctrine which effectively exempts a plaintiff from showing any
articulable harm, whether in raising a constitutional challenge or
petitioning to enforce a statute, regulation, or other public law. 790 N.E.2d
9 Flast v. Cohen created a narrow exception to the general rule of standing that permits
taxpayers to challenge the expenditure of federal funds in religious schools under the express
limitations of the First Amendment Establishment Clause. 392 U.S. 83, 103 (1968).
Subsequent federal cases, vigilant in enforcing the separation of powers, have largely
10
declined to extend Flast beyond its facts. See, e.g., Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, 454 U.S. 464 (1982); Freedom From Religion Found., Inc. v.
Nicholson, 536 F.3d 730 (7th Cir. 2008).
11Even if we were to characterize our discussion and critique of the pertinent case law here as
mere “dicta,” post, at 1, 5 (concurrence in result), that “characterization does not give to this
court license to ignore the clear import of the language” in its “interpretation of the law in this
area,” Stevens v. Norfolk W. Ry. Co., 171 Ind. App. 334, 340, 357 N.E.2d 1, 4 (1976). See also Fesler
v. Brayton, 145 Ind. 71, 83, 44 N.E. 37, 40 (1896) (stating that opinions made in prior cases,
although not essential to their holdings, “are no mere obiter dicta” since “they express the
kernel of the principle” applied).
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at 983 (declaring that the “public standing doctrine permits the assertion
of all proper legal challenges, including claims that government action is
unconstitutional”) (emphasis added). This doctrinal obfuscation has led to
some confusion among our courts on the precise contours of standing. See,
e.g., Liberty Landowners Ass’n, Inc. v. Porter Cty. Comm’rs, 913 N.E.2d 1245,
1251 (Ind. Ct. App. 2009) (observing, in a challenge to a zoning ordinance,
that “the public standing doctrine or the availability of taxpayer or
citizen standing is limited to extreme circumstances”), trans. denied;
Meredith v. Pence, 984 N.E.2d 1213, 1217 n.4 (Ind. 2013) (“As taxpayers
challenging allegedly unconstitutional use of public funds, the plaintiffs
have standing under Indiana’s public standing doctrine, an exception to
the general requirement that a plaintiff must have an interest in the
outcome of the litigation different from that of the general public.”)
(internal quotations omitted).
While both doctrines overlap to some extent, unique rationales
distinguish them. Taxpayer standing generally implicates a challenge to
some government action that involves the expenditure or appropriation of
public funds. See Joshua G. Urquhart, Disfavored Constitution, Passive
Virtues? Linking State Constitutional Fiscal Limitations and Permissive
Taxpayer Standing Doctrines, 81 Fordham L. Rev. 1263, 1278 (2012) (citing
Cittadine for the proposition that Indiana “permit[s] ‘public importance’ or
‘public interest’ lawsuits, effectively in lieu of traditional taxpayer
actions”). Public standing, on the other hand, involves a challenge to
“virtually any government action,” so long as there’s a “substantial public
interest, as determined by the court overseeing the lawsuit.” Id. at 1279.
Whereas the former doctrine has at least some “connection to an injury-in-
fact, however tenuous it may be,” the latter doctrine typically “has no
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basis in, and cannot be traced to, a particularized injury-in-fact.” 12 M.
Ryan Harmanis, Note, States’ Stances on Public Interest Standing, 76 Ohio St.
L.J. 729, 750 n.134 (2015). See also Jaffe, Standing to Secure Judicial Review, 74
Harv. L. Rev. at 1280 (“The point of the distinction . . . is that the plaintiff
in the taxpayer’s suit is thought to be ‘affected’ in a sense that
distinguishes him from the citizen who in mandamus is the mere
instrument of the public’s concern.”).
Public standing, then, as the Cittadine Court articulated, risks pushing
the judiciary’s role beyond the boundaries contemplated by our
distribution-of-powers doctrine. See Harmanis, States’ Stances on Public
Interest Standing, 76 Ohio St. L.J. at 750 n.134 (concluding that “public
interest standing functionally equates to the judiciary unilaterally
expanding its own authority”). By permitting any person, without a
showing of harm, to enforce a public right or duty, what limits are there?
If all government action is subject to judicial review, what purpose does
the political process serve? 13 What role does the franchise play? What
incentive is left for our citizens to exercise their constitutional right of
“applying to the General Assembly for redress of grievances”? See Ind.
Const. art. 1, § 31.
12The characterization of taxpayer standing as a “category” of public standing, see post, at 3, 4
(concurrence in result), overlooks the two distinct doctrinal grounds on which Justice Dickson
would have conferred standing to the plaintiff in Pence, see 652 N.E.2d at 489. And the
conflation of these two doctrines, we believe, leads to the improper conclusion that a majority
in Embry applied the public-standing doctrine. See 798 N.E.2d at 167–69 (Sullivan, J.,
concurring) (writing to clarify that plaintiffs had taxpayer standing to bring their claim). See
also Frank Sullivan, Jr., A Look Back: Developing Indiana Law, Post-Bench Reflections of an Indiana
Supreme Court Justice, 47 Ind. L. Rev. 1217, 1230 n.94 (2014) (questioning whether there were
three votes for the proposition that taxpayer standing and public standing are one in the
same, with “Justice Boehm’s vote being opaque on that point”).
13On this point, the irony of Cittadine is palpable: The legislative amendment that preceded
the Court’s decision not only rendered the case moot, but also illustrates the malleability of
state statutory law, which offers citizens a “clear avenue to make changes that public interest
standing would instead leave to the judiciary.” M. Ryan Harmanis, Note, States’ Stances on
Public Interest Standing, 76 Ohio St. L.J. 729, 743 (2015).
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 15 of 38
We need not answer these questions today because Taxpayers’ claim
involves an express constitutional limitation on the appropriation of
public funds. And in resolving their claim, we give no precedential weight
to Cittadine on the question of standing. 14 See Embry, 798 N.E.2d at 167
(Sullivan, J., concurring) (“Cittadine was not a constitutional case.”). See
also Frank Sullivan, Jr., A Look Back: Developing Indiana Law, Post-Bench
Reflections of an Indiana Supreme Court Justice, 47 Ind. L. Rev. 1217, 1230
(2014) (observing that the plaintiff in Cittadine was not held to have
standing “by virtue of being a taxpayer”). Instead, we rely on the
concurring opinion in Embry for guidance. That opinion, we believe, offers
a fair standard for taxpayer-plaintiffs seeking to litigate a constitutional
claim. Indeed, by emphasizing the need to show “‘extreme
circumstances,’” 798 N.E.2d at 168 (quoting Pence, 652 N.E.2d at 488), the
standard preserves the taxpayer-standing doctrine while respecting the
balance of powers expressly called for in our state’s fundamental law.
By adopting the standard articulated in Justice Sullivan’s Embry
concurrence, we hold that, to establish taxpayer standing, a plaintiff must
(1) raise a challenge seeking to vindicate an express constitutional
14We disagree that our opinion serves to “eliminate” the public-standing doctrine. See post, at
2 (concurrence in result). But we decline to consecrate that doctrine simply because it’s a
“long-standing feature of Indiana law.” See ibid. Such an approach endorses a static view of
our standing jurisprudence, ignoring the shift in doctrinal philosophy over time. Compare, e.g.,
Hamilton v. State ex rel. Bates, 3 Ind. 452, 458 (1852) (concluding simply that, when a private
party by writ of mandamus seeks to vindicate a public right, “it is not necessary . . . that the
relator should have a special interest in the matter”), with Wampler v. State ex rel. Alexander, 148
Ind. 557, 564, 47 N.E. 1068, 1070 (1897) (characterizing mandamus “as an extraordinary
remedy” which applies “only where the law affords no other adequate remedy”) (emphasis
added), and State ex rel. Goldsmith v. Superior Court of Marion Cty., Criminal Div., Room No. Four,
463 N.E.2d 273, 275 (Ind. 1984) (“The writ of mandamus is an extraordinary remedy, viewed
with extreme disfavor. As a general rule, the relator must have a clear and unquestioned right
to relief before mandamus may be invoked and the respondent must have failed to perform a
clear, absolute, and imperative duty imposed by law.”) (emphasis added) (internal citations
and quotation marks omitted).
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limitation on the expenditure of public funds, 15 (2) demonstrate some
personal stake in the outcome of the controversy, and (3) show “extreme
circumstances” warranting judicial intervention. 16
C. Taxpayers have standing to litigate their claim under
our taxpayer-standing doctrine.
In applying our standard here, we conclude that Taxpayers have
standing to litigate their claim. First, their claim clearly implicates an
express constitutional limitation on the expenditure or appropriation of
public funds. See Ind. Const. art. 8, § 3 (prohibiting the principal of the
Common School Fund from being “diminished”). And because this Fund
is a “public fund of the state” in which all taxpayers have an interest in
preventing its “unlawful waste” or misappropriation, Taxpayers meet the
second prong of our standard. See Mitsch, 234 Ind. at 290, 289, 125 N.E.2d
at 23. Finally, because Taxpayers challenge the Civil Forfeiture Statute as
an abuse of the legislative prerogative, and because the Prosecutor’s Office
agrees that this case “raise[s] a substantial question of Indiana
constitutional law,” Prosecutor’s Resp. Mot. Trans. at 2, Taxpayers
successfully present the “extreme circumstances” necessary to establish
standing. See Pence, 652 N.E.2d at 488; Embry, 798 N.E.2d at 168 (Sullivan,
J., concurring). In so concluding, this “Court does not overstep [its]
15Recent decisions from this Court on broader questions of justiciability bolster this narrow
exception to the general rule of standing. See, e.g., Berry v. Crawford, 990 N.E.2d 410, 413 (Ind.
2013) (holding that, when “the Indiana Constitution expressly assigns certain functions to the
legislative branch without any contrary constitutional qualification or limitation, challenges
to the exercise of such legislative powers are nonjusticiable and the doctrine of separation of
powers precludes judicial consideration of the claims for relief”) (emphasis added); id. at 422
(Rush, J., concurring in part and dissenting in part) (“[L]egislative actions are non-justiciable if
they are taken ‘pursuant to specific constitutional authority and not contrary thereto.’”)
(quoting Roeschlein v. Thomas, 258 Ind. 16, 28, 280 N.E.2d 581, 589 (1972)) (emphasis added in
Berry).
16Our holding today does not “[drive] a knife into . . . precedent” and this Court’s “integrity.”
See post, at 5 (concurrence in result). Instead, it identifies a rule of standing more consistent
with the first principles discussed in the opinion concurring in the judgment, taking a scalpel
to more than a century and a half of sometimes-conflicting precedent while still affording
standing in this extreme circumstance.
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limitations in deciding this challenge.” Embry, 798 N.E.2d at 169 (Sullivan,
J., concurring).
We also emphasize that, had Taxpayers brought their claim as a private
party—whether in defending against civil or criminal liability or in
seeking damages—this Court would have properly denied them standing.
See Hoagland v. Franklin Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 741 (Ind.
2015) (holding that article 8, section 1 of the Indiana Constitution, “does
not provide an individual with a private right of action for monetary
damages”); $100 and a Black Cadillac v. State, 822 N.E.2d 1001, 1015 (Ind. Ct.
App. 2005) (concluding that a party, in defending against a forfeiture
action after pleading guilty to dealing in drugs, did “not have standing to
question” whether the Civil Forfeiture Statute violated article 8, section 2),
trans. denied; Michener, 120 Ind. 282, 283, 22 N.E. 255, 255 (1889) (observing
that “individual citizens have no private interest” in public funds).
II. Article 8, section 2 applies to civil forfeitures.
Turning to the merits, we must first determine whether article 8, section
2 applies to civil forfeitures. Civil forfeiture “is a device, a legal fiction,
authorizing legal action against inanimate objects for participation in
alleged criminal activity, regardless of whether the property owner is
proven guilty of a crime—or even charged with a crime.” Serrano v. State,
946 N.E.2d 1139, 1140 (Ind. 2011). In dismissing this case, the trial court
reasoned that civil forfeitures “were unknown in 1851 when Article 8,
Section 2, was added to the Indiana Constitution.” Appellant’s App. Vol.
II, p.172. But a cursory look at the historical record shows otherwise.
“Since the earliest years of this Nation, Congress has authorized the
Government to seek parallel in rem civil forfeiture actions and criminal
prosecutions based upon the same underlying events.” United States v.
Ursery, 518 U.S. 267, 274 (1996) (citing a federal statute from 1789).
Maritime law propelled this practice during the early national period. A
federal statute in 1819, for example, authorized officials to “seize” any
“armed vessel or boat” for committing “piratical aggression.” Act of Mar.
3, 1819, ch. 77, § 2, 3 Stat. 510, 512–13. A court would then “order a sale” of
the vessel, after certain proceedings, and distribute the proceeds. Id. § 4, 3
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Stat. at 513. And “no personal conviction of the offender [wa]s necessary
to enforce” those proceedings. The Palmyra, 25 U.S. (12 Wheat.) 1, 15
(1827), superseded by statute as stated in Honeycutt v. United States, 137 S. Ct.
1626, 1634 (2017). To the contrary, any “proceeding in rem stands
independent of, and wholly unaffected by any criminal proceeding in
personam.” 25 U.S. (12 Wheat.) at 1.
In 1844, just seven years before the ratification of our 1851 Constitution,
the U.S. Supreme Court reaffirmed federal authority to seize a vessel
despite no underlying crime by its owner. The Malek Adhel, 43 U.S. (2
How.) 210, 233 (1844). “The vessel which commits the aggression is
treated as the offender,” the Court emphasized, “as the guilty instrument
or thing to which the forfeiture attaches, without any reference
whatsoever to the character or conduct of the owner.” Id.
Dictionaries and legal treatises contemporary to the 1850–51 debates
offer a similar characterization of civil forfeitures. According to one
dictionary available to the framers, a forfeiture involved any property
“alienated by a crime, offense, neglect of duty, or breach of contract.”
Noah Webster, An American Dictionary of the English Language 354 (1841),
available at https://hdl.handle.net/2027/hvd.hnezz9. 17 Consistent with this
definition, this Court held over a century ago that a “forfeiture may be
generally defined to be the loss of what belongs to a person in
consequence of some fault, misconduct or transgression of law.” State ex
rel. Baldwin v. Bd. of Comm’rs of Marion Cty., 85 Ind. 489, 493 (1882). This
loss of property, however, didn’t depend on any underlying guilt of a
property owner. As nineteenth-century legal scholar Joel Prentiss Bishop
noted in his seminal treatise on criminal law, officials could seize property
“without regard to whether the owner commits, at the same time, a crime
or not.” Commentaries on The Criminal Law, § 698 (1856). As with modern
17Convention delegates periodically consulted the “larger edition of Webster’s English
Dictionary.” See 2 Report of the Debates and Proceedings of the Convention for the Revision of the
Constitution of the State of Indiana 1384 (1851). See also id. at 1432 (“[I]f he will take the trouble to
look into Webster’s dictionary . . . .”).
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practice, property could be forfeited through civil proceedings, with the
property “itself directly” held liable for any wrongful conduct. Id. § 703.
From this brief historical inquiry, we have little doubt that our
constitutional framers understood that “a conviction on the underlying
criminal activity is not a prerequisite for forfeiture.” Katner v. State, 655
N.E.2d 345, 348 (Ind. 1995). And because “Indiana’s system for civil
forfeitures proceeds under” article 8, Serrano, 946 N.E.2d at 1141, we hold
that the Civil Forfeiture Statute falls within the scope of article 8, section 2.
III. Article 8, section 2 permits the legislature to
determine how and when forfeiture proceeds
accrue to the Common School Fund.
Indiana’s Civil Forfeiture Statute directs the transfer of proceeds from
seized property “to the treasurer of state for deposit in the common school
fund.” I.C. § 34-24-1-4(d). But before these proceeds accrue to the Fund,
the Statute permits the allocation of forfeiture revenue to reimburse law
enforcement costs. Id. Taxpayers argue that “the Civil Forfeiture Statute
violates Article 8 of the Indiana Constitution by diverting forfeiture
revenue from the common school fund.” Appellants’ Br. at 17.
To determine the constitutionality of the Civil Forfeiture Statute, we
must examine “the language of the text in the context of the history
surrounding its drafting and ratification” as well as “the purpose and
structure of our constitution.” City of Hammond, 119 N.E.3d at 79
(emphases added) (internal quotations omitted).
A. Text of article 8.
First, we turn to article 8’s text. Article 8, section 2 dictates that, among
other things, the Common School Fund “shall consist of . . . [t]he fund to
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be derived from . . . all forfeitures which may accrue.” 18 Ind. Const. art. 8,
§ 2. According to Taxpayers, this “case begins and ends with a
straightforward application” of this text. Appellants’ Br. at 17. “The
framers’ intent could not be clearer,” Taxpayers insist: “All forfeitures—
not some forfeitures or ten percent of forfeitures—belong to the school
fund.” Id. at 27 (internal quotation marks omitted). And, according to
Taxpayers, the Civil Forfeiture Statute violates article 8 because section 3
commands that the principal of this Fund “shall never be diminished” and
18Under article 8, section 2, our framers consolidated several existing sources of revenue into
a “Common School fund.” See Richard Gause Boone, A History of Education in Indiana 212
(1892). Article 8, section 2, in its entirety, reads as follows:
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.
Although article 8, section 2 dictates that proceeds from forfeitures accrue to a fund that is a
component part of the Common School Fund, we find that to be a logistical step irrelevant to
our analysis and will refer to forfeiture proceeds as accruing directly to the Common School
Fund.
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 21 of 38
must only be “appropriated to the support of Common Schools, and to no
other purpose whatever.” Id. (internal quotation marks omitted).
As this Court observed nearly a century and a half ago, article 8 is
“certainly not self-acting in [its] operation.” State ex rel. Att’y Gen. v. Meyer,
63 Ind. 33, 40 (1878). Thus, “[l]egislation was requisite and necessary to
carry [its] provisions into practical effect, and especially to create the
‘common school fund.’” Id. 19 Indeed, in his December 1851 address to the
General Assembly, Governor Joseph A. Wright impressed upon the
legislature that it was their “duty to husband this fund . . . to provide for
the education of the youth of every county, township, and district.”
Indiana House Journal at 20 (Dec. 2, 1852). Heeding this call, the members
of the Thirty-Sixth General Assembly crafted the 1852 Free School Law to,
among other things, enliven “the provisions of the Constitution
concerning the school funds” and provide “for their safe investment.”
Richard Gause Boone, A History of Education in Indiana 144 (1892) (History
of Education).
Nearly a century later, our Court of Appeals reaffirmed the legislature’s
prerogative to determine when and how money accrues to the Common
School Fund. In State v. Elliott, the state treasurer challenged a statute
requiring a county auditor to keep “a record of all fines, forfeitures and
other revenue which accrues to the Common School fund,” with the
auditor only paying to the state treasurer those amounts biannually. 171
Ind. App. 389, 392, 357 N.E.2d 276, 278 (1976). This scheme, the treasurer
argued, allowed the auditor to impermissibly divert money away from the
Fund. Id. at 393, 357 N.E.2d at 279. But in upholding the statute, the Court
of Appeals determined that a forfeiture “accrue[s] to the Common School
fund” upon “possession of the Treasurer of State.” Id. Until then, the
“property rights of the State in the [Fund] have not vested.” Id. at 392, 357
N.E.2d at 278.
19While, of course, “[a] constitutional provision that is ‘not self acting’ can still limit
governmental action,” post, at 5 (dissent), the text of section 2 refers only to those forfeitures
that “may accrue” to the Fund.
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As further proof that the framers contemplated this legislative power,
statutes permitting cost offset for forfeiture were in place as they
assembled to craft our new constitution. For example, from 1836 to 1847,
as the General Assembly incorporated various cities and towns across the
state, legislation consistently permitted the payment of “[a]ll expenses
incurred in prosecuting for the recovery of any penalty or forfeiture.” Act
of Feb. 8, 1836, ch. 3, § 34, 1835 Ind. Acts 8, 16 (emphasis added). 20 And
despite the 1816 Constitution requiring that “[a]ll fines, penalties and
forfeitures . . . inure to the use of the State or County,” Ind. Const. of 1816,
art. XII, § 2 (emphasis added), only those proceeds remaining after this
offset were “paid to the treasurer for the use of said city,” Act of Feb. 8,
1836, ch. 3, sec. 34, 1835 Ind. at 16. This section of the 1816 Constitution, as
with its modern counterpart, contained no express language permitting
the offsetting of costs. But, like the statute at issue in Elliott, these
incorporation statutes—effective at the time of the 1850–51 Constitutional
Convention—exhibit the framers’ understanding that, even without
express language permitting offset, the legislature can direct when and
how forfeiture proceeds “accrue” or “inure” to the state. Indeed, this view
tracks historical descriptions of certain revenue sources under section 2—
forfeitures, criminal fines, and escheated estates—as “incidental,” or,
“contingent.” Ind. Dep’t of Public Instruction, First Annual Report 45
(1852); Ind. Dep’t of Public Instruction, Twentieth (Sixth Biennial) Report of
the Superintendent of Public Instruction for the State of Indiana 17 (1872).
So, under article 8’s text, the General Assembly can determine how and
when a forfeiture accrues to the Common School Fund.
20This particular act applied to the incorporation of Michigan City. Acts incorporating other
towns and cities contained the same or similar language. See Act of Feb. 17, 1838, ch. 5, § 52,
1837 Ind. Acts 34, 44 (Terre-Haute); Act of Jan. 28, 1839, ch. 8, § 51, 1838 Ind. Acts 18, 28
(Jeffersonville); Act of Feb. 22, 1840, ch. 5, § 31, 1839 Ind. Acts 16, 26 (Fort Wayne); Act of Feb.
24, 1840, ch. 6, § 47, 1839 Ind. Acts 31, 41 (Richmond); Act of Feb. 15, 1841, ch. 120, § 22, 1840
Ind. Acts 171, 176 (Connersville); Act of Feb. 16, 1848, ch. 286, § 22, 1847 Ind. Acts 378, 383
(New Columbus).
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B. History surrounding article 8.
The history surrounding article 8 bolsters our plain reading of the text.
In constitutional historical inquiries, we “examine the state of things
existing when the constitution or any part thereof was framed and
adopted, to ascertain the old law, the mischief, and the remedy.” Bayh v.
Sonnenburg, 573 N.E.2d 398, 412 (Ind. 1991) (quotation marks omitted).
Here, we agree with Taxpayers that our constitutional framers, in
drafting article 8, sought to deter the dual mischiefs of malfeasance and
financial incompetence that had become so pervasive among state and
local officials administering school funds. Indeed, as Taxpayers maintain,
the history of article 8 confirms that our constitutional framers “created a
dedicated school fund to stop government actors from siphoning money
from educational objectives.” Appellants’ Br. at 32. But Taxpayers’ view of
the history surrounding article 8 omits important context.
Following the passage of Indiana’s first comprehensive school law in
1824, “school revenue was inconsiderable” due to the “mismanagement of
funds.” History of Education at 26. Compounded by “local indifference and
sometimes legislative evasion,” the school law “was doomed to failure for
lack of funds.” Id. at 27. And despite “very elaborate” reform in 1833,
“progress was discouragingly slow.” Id. at 32, 34. Even as Hoosiers
approached mid-century, further attempts to safeguard school funding
proved “far from satisfactory.” Id. at 38–39. In his address to the House of
Representatives at the Twenty-Eighth Indiana General Assembly,
Governor Samuel Bigger lamented that “our school funds were not
producing the fruits which we had a right to expect, but were in danger in
many cases of being irretrievably lost.” Indiana House Journal at 18 (Dec.
5, 1843). According to the governor, accountability measures were
necessary to ensure “the various education funds will be rendered much
more secure and productive.” Id.
And this concern carried over into the debates over our 1851
constitution. Delegate John I. Morrison, chairman of the committee on
education, reported to the convention that, “[i]n the present state of
affairs, we have no means of ascertaining accurately, the true conditions”
of the state’s school fund. 2 Report of the Debates and Proceedings of the
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Convention for the Revision of the Constitution of the State of Indiana 1860
(1851). According to Delegate Morrison, “abundant evidence” showed
“the danger to which the several educational funds are exposed,” with
thousands of dollars “lost beyond recovery.” Id.
Still, despite the frustration shown by leaders during this period, we
find no evidence of any steadfast commitment by the framers against the
offsetting of proceeds collected from forfeitures or other contingent
sources of revenue under section 2. To the contrary, the pre-accrual
allocation of proceeds from these sources acted as a financial incentive to
stimulate the Fund’s growth.
Just two years after the framers completed their work, William C.
Larrabee, Indiana’s first State Superintendent of Public Instruction, cited
allegations in his second annual report to the General Assembly that
public officers responsible for imposing “fines for breaches of the penal
laws of the State” had “fail[ed] to issue process for the collection of such
fines,” thus depriving the Fund of significant resources. 21 Ind. Dep’t of
Public Instruction, Second Annual Report of the Superintendent of Public
Instruction for the State of Indiana 18 (1853).
Little had changed in the years that followed. In his 1865 report to the
General Assembly, Superintendent Samuel L. Rugg speculated that, of the
fines and forfeitures collected, there had “probably been but little added”
to the Fund. Ind. Dep’t of Public Instruction, Thirteenth (Second Biennial)
Report of the Superintendent of Public Instruction for the State of Indiana 17
(1865). The reason for this, he suggests, was the lack of a “statute in force
requiring officers to pay over or add to the school fund, the money
collected upon forfeited recognizances, or upon any other kind of
forfeitures.” Id. at 17–18. Additional forfeiture proceeds, he concluded,
21As one respected historian describes them, these “reports of the state superintendent to the
legislature constitute the most complete record available of the state educational system and
contain recommendations for improving the system which had some influence with the
lawmakers.” Emma Lou Thornbrough, Indiana in the Civil War Era, 1850-1880, at 466 (1965).
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 25 of 38
would be unlikely, “unless there is some provision of law giving it that
direction.” Id. at 18.
By 1872, the pressing need to incentivize the collection of fines,
forfeitures, and other contingent revenue sources had become a priority.
That year, Superintendent Milton Hopkins pled with the General
Assembly for some “means of increasing” the Common School Fund. Ind.
Dep’t of Public Instruction, Twentieth (Sixth Biennial) Report of the
Superintendent of Public Instruction for the State of Indiana 33 (1872). “There
is a wide spread belief . . . among school officers and many others,” he
wrote, “that the fines, forfeitures and unclaimed witness fees, that are the
parts of both fund and revenue are not faithfully reported.” Id. To
Hopkins, the dismal revenue stream at the time suggested that “justice
[was] not so faithfully administered.” Id.
In a circular issued that same year, Attorney General Bayless Hanna
reminded the county commissioners “that all fines assessed for breeches
of the penal laws of the State, together with all forfeiture which may
accrue, and all unclaimed fees, constitute a part of the Common School
fund.” Id. at 34. Income from these sources, he concluded, should “have
resulted in vast revenues for the use of the State and the counties.” Id. But
an accounting by the state auditor revealed that “a vast sum of money”
had either “not been . . . collected according to law” or had “been
appropriated to personal gain.” Id. To correct this “malfeasance,” he urged
the county commissioners to “employ a competent Attorney, at
reasonable compensation,” to determine the extent to which “fines,
forfeitures and unclaimed fees . . . belonging to the School Fund” had “not
been accounted for.” Id. at 34–35.
The General Assembly responded to these pleas at its following
legislative session in 1873. At the behest of Governor Conrad Baker,
lawmakers adopted a measure requiring “the Clerks of the several Circuit
Courts” to, among other things, “forward to the Attorney General,” at the
close of each term, “a statement of all fines assessed and forfeitures
entered during such term.” Act of Mar. 10, 1873, ch. 7, § 4, 1873 Ind. Acts
18, 19; 14 Brevier Legis. Rep. App., pp. 6–7 (1873) (message of Governor
Baker to the General Assembly). The Act also required the attorney
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general to “ascertain from time to time the amounts paid to any public
officer” for, among other revenue sources, “money unclaimed in estates or
guardianships, fines or forfeitures, or moneys that escheat to the State for
want of heirs.” Act of Mar. 10, 1873, ch. 7, § 9, 1873 Ind. Acts at 20. Should
any public officer “fail, neglect or refuse” to collect those revenue
proceeds, the Act authorized the attorney general to prosecute “all
necessary proceedings to compel the[ir] payment . . . or recovery.” Id. And
to enable the attorney general “to ascertain the facts,” the Act required a
full accounting from every public officer with “custody of any such
moneys.” Id. To measure progress, “annual reports to the Secretary of
State” were to include statistics on “[a]ll fines assessed and forfeitures
entered in the State.” Id. § 10, 1873 Ind. Acts at 20.
As an incentive to prosecute these actions, the Act allocated to the
attorney general, for “all collections made or property recovered,”
a “commission of twenty per cent. on the first thousand dollars, ten per
cent. on sums not exceeding two thousand dollars, and on all sums
exceeding two thousand dollars five per cent.” 22 Id. And to “aid him in the
discharge of his duties,” the Act permitted the attorney general to employ
assistants and to “pay to them out of the sums so collected” a commission
“not exceeding ten per cent.” Id. § 11, 1873 Ind. Acts at 20 (emphasis
added). While the Act was expected to result in a “considerable increase in
the salary of the Attorney General,” Governor Baker reasoned that such
expense “would be compensated fifty-fold by the increase of the school
22This compensation scheme—from nearly a century and a half ago—shows that percentage-
based allocations are nothing new, in contrast to the assertion that history reveals offset costs
must “demonstrate a tie to expenses incurred in obtaining each forfeiture.” Post, at 6 (dissent).
To be sure, “[t]his Court has never held that a civil-forfeiture statute is constitutional even
though the allocations bear no correlation to expenses incurred in obtaining the forfeiture.”
Ibid. But we have also never held the opposite. Indeed, we have “never decided the
constitutionality of” any civil forfeiture scheme. Post, at 6 n.3. And because the former Civil
Forfeiture Statute could lead to no money going to the Fund, Appellant’s App. Vol. II, pp. 45
(“State Defendants are not aware of any cases that a Marion County trial court awarded
forfeited property to the Common School Fund.”), even the actual-cost method cannot
promise to “grow” or “increase” the fund. See post, at 6.
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 27 of 38
fund, by the collection of fines and forfeitures that are lost to the State
under the present system.” 14 Brevier Legis. Rep. App., p.7.
In 1879, this Court upheld the Act’s compensation scheme. In State v.
Denny, Attorney General Thomas Woolen sued the state’s former attorney
general, James Denny, “for the recovery of certain moneys belonging to
the State.” 67 Ind. 148, 148 (1879). The proceeds at issue consisted of
commissions Denny had collected and retained, by authority of the Act,
during his tenure in public office. Id. at 149–50. Woolen argued that Denny
was not entitled to these proceeds because the Act limited the attorney
general only “to the ascertainment . . . of the amounts paid to any public
officer of the State.” Id. at 157 (internal quotations omitted). This Court
rejected Woolen’s argument as “antagonistic” to legislative intent. Id. at
157. The purpose of the Act, this Court opined, was to recoup “large
amounts of these public moneys, belonging to the State and its trust
funds,” which “were in the hands of State and county officers, and other
persons, and had been there long beyond the time when, by law, they
should have been paid into the proper treasury.” Id. at 158 (emphasis
added). For this reason, the Court concluded, the General Assembly
properly authorized “liberal commissions for the Attorney General” and
his assistants, “but payable only . . . out of the amounts so collected.” Id.
(emphasis added).
With no discussion of Denny in their briefings, Taxpayers rely instead
on this Court’s decision in Bartholomew County v. State ex rel. Baldwin, 116
Ind. 329, 19 N.E. 173 (1888). In that case, the board of county
commissioners successfully sued the former township trustee to recover
outstanding money due to the Congressional Township Fund, another
distinct revenue source under article 8, section 2. Id. at 330–31, 19 N.E. at
174–75. Upon receipt of the proceeds, the board set aside $2,000 for its
attorneys as a “reasonable fee and compensation,” with the remainder
paid to the Township Fund. Id. at 334, 19 N.E. at 176. The Attorney
General, in turn, sued the board to recover the attorneys’ fees, arguing
that all proceeds were dedicated exclusively “to the support of common
schools, and to no other purpose whatever.” Id. at 336, 19 N.E. at 177. This
Court agreed, holding that any revenue owing to the Congressional
Township Fund “could not be diverted lawfully . . . to the payment of
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attorney’s fees,” which included “the payment of fees and commissions to
the attorney general.” Id. at 339, 19 N.E. at 178, 179.
On first impression, Baldwin stands in clear tension with Denny. But a
closer look at Baldwin reveals an important distinction. Unlike the
contingent sources of revenue at issue in Denny (unclaimed property, fines
and forfeitures, escheated estates), Baldwin involved the Congressional
Township Fund, “one of the trust funds referred to in section 7 of article 8
of the constitution of 1851.” Id. at 340–41, 19 N.E. at 179. In 1828, Congress
had approved the General Assembly’s request to sell these lands (which
Indiana had acquired at statehood), but only with the consent of the
township inhabitants (for whom Congress had expressly reserved these
lands) and only on the condition that all proceeds “be forever applied to
the use of the inhabitants of the respective townships in the support of
schools therein.” 23 State v. Springfield Twp., in Franklin Cty., 6 Ind. 83, 93
(1854) (quoting Act of Jan. 24, 1828, ch. 80, 1827 Ind. Acts 112, 112)
(emphasis added). Delegates to the 1850–51 Constitutional Convention
codified these terms in the state’s new fundamental law. Article 8, section
7 considers these sales proceeds as “trust funds” which the state must
“faithfully and exclusively appl[y] to the purposes for which the trust was
created.” Ind. Const. art. 8, § 7 (emphasis added). 24
Because the state holds these proceeds in trust for a particular
beneficiary (the township inhabitants) and for a specific purpose (the
support of township schools), the General Assembly has “no power to
23The Congressional Township Fund has its origins in the General Land Ordinance of 1785,
which, in addition to establishing the systematic survey and sale of western lands, set forth
the first program of land grants for schools. See Sally K. Fairfax et al., The School Trust Lands: A
Fresh Look at Conventional Wisdom, 22 Envtl. L. 797, 805 (1992).
24The framers noted that the State held donated lands merely in trust. See 2 Debates at 1863
(statement of Mr. Pettit) (remarking that section 7 “is a simple declaration” that the state
would “faithfully apply” those funds received “by gift, by donation—anything for a specific
purpose”); id. at 1885 (statement of Mr. Dobson) (noting that the federal government donated
the “Salt Springs” (the source of article 8’s “Saline fund”) and “every sixteenth section” of
townships (the source of the “Congressional Township fund”) for specific purposes).
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divert the congressional township fund, or the income thereof.” Baldwin,
116 Ind. at 338, 19 N.E. at 178. Unlike forfeitures and other contingent
revenue sources (which vest in the Common School Fund as determined
by the General Assembly), the Congressional Township “lands came to
[the state] as a sacred trust,” and “the people, by their fundamental law,
have placed it beyond the power of even the legislature” to divert “the
principal of the funds arising from such lands.” See Edgerton v. Huntington
Sch. Twp., 126 Ind. 261, 264, 26 N.E. 156, 156–57 (1890) (emphasis added). 25
The Baldwin Court merely extended this prohibition to include the board
of county commissioners. See 116 Ind. at 338, 19 N.E. at 178.
Finally, Taxpayers cite Howard County v. State ex rel. Michener in arguing
that “this Court has ‘always’ held” that the Fund “‘must be devoted to the
support of the common schools, without the diversion from it of a penny
for any other purpose whatever.’” Appellants’ Br. at 28 (quoting 120 Ind.
282, 283, 22 N.E. 255, 255 (1889)). At issue in Michener was a statute
requiring county auditors to conduct a full accounting of the Common
School Fund. Act of Dec. 21, 1865, ch. 38, § 1, 1865 Ind. Acts 144. The
“amounts thus ascertained” in their reports, upon approval by the
Superintendent of Public Instruction, became “conclusive evidence of the
facts therein contained.” Id. § 2, 1865 Ind. Acts at 144. The attorney general
challenged the measure as a violation of article 8, section 2. This Court
agreed, reasoning that the statute impermissibly precluded “the courts
from ascertaining” the “money due the school fund.” 120 Ind. at 284, 22
N.E. at 255–56.
The holding in Michener—that article 8 requires a full and transparent
accounting of all revenue owing to the Common School Fund, and that no
“legislative contrivance” can prevent the courts from assessing this
information—is entirely consistent with the legislative intent of the 1873
Attorney General Act. And nothing in that decision precludes pre-accrual
offsetting. While today the “county auditor shall keep a record of all fines
25Article 8, section 2 limits legislative authority over only those Fund sources held in trust, not
over contingent sources like forfeitures. Thus, article 8, section 2 does not limit “the
legislature’s authority in drawing the [S]tatute’s contours.” See post, at 5 (dissent).
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 30 of 38
and forfeitures and all other revenue that, by law, accrues to the fund,”
I.C. § 20-49-3-16(a) (2006), the Statute doesn’t establish these records as
“conclusive evidence” of the money owed the Fund. See Michener, 120 Ind.
at 282, 22 N.E. at 255. Thus, the Statute is no “legislative contrivance”
precluding “the courts from ascertaining” the “money due the school
fund.” Id. at 284, 22 N.E. at 256.
Altogether, the history of education funding in Indiana belies the
Taxpayers claim that, by permitting law enforcement personnel to
reimburse themselves for forfeiture-execution costs, “the Civil Forfeiture
Statute enables precisely what Article 8 was meant to curtail.” See
Appellants’ Br. at 32.
C. Structure and Purpose of the Indiana Constitution.
Finally, the structure and purpose of our Constitution unerringly point
toward article 8, section 2 permitting cost offset for forfeiture execution.
We examine our Constitution’s provisions “within the structure and
purpose of the Constitution as a whole.” State v. Monfort, 723 N.E.2d 407,
411 (Ind. 2000). When possible, we must construe these provisions
harmoniously. Id.
Taxpayers contend that “Article 8, Section 2 shows that the framers
knew how to authorize cost-recovery when they intended to do so.”
Appellants’ Br. at 30. In support of this argument, they direct us to
another source of revenue under section 2: proceeds from the “sales of
Swamp Lands,” which expressly permits expense deductions for
“selecting and draining” those lands. See Ind. Const. art. 8, § 2.
But this language is yet another product of federal land-grant
legislation. See Act of Sept. 28, 1850, ch. 84, § 2, 9 Stat. 519, 519. Although
the Swamp Lands were “subject to the disposal of the legislature,”
Congress required the state to dedicate all sales proceeds “exclusively, as
far as necessary, to the purpose of reclaiming said lands by means of the
levees and drains.” Id. In other words, the federal land grant contractually
bound the State of Indiana to set aside “the expense of selecting and
draining” the Swamp Lands before directing any remaining proceeds to
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the Fund. 26 The framers simply codified this language in the state’s
fundamental law.
Free of similar offsetting restrictions, forfeitures and other contingent
revenue sources under section 2 permitted the pre-accrual distribution of
funds. This practice included the distribution of proceeds “derived from
the sale of County Seminaries.” See Ind. Const. art. 8, § 2. “It is a sufficient
compliance with the constitutional requirement,” this Court held, just four
years after our constitutional framers adjourned, “if the seminary fund,
after payment of its debts, is appropriated to common schools.” Auditor &
Treasurer of Grant Cty. v. Bd. of Comm’rs of Grant Cty., 7 Ind. 315, 316 (1855)
(emphasis added). 27
Still, Taxpayers characterize Grant County as an anomaly, “an episode
unique to Indiana’s transition from the 1816 Constitution to the 1851
Constitution.” Appellants’ Reply Br. at 17. But a closer look at the
constitutional debates suggests otherwise.
On January 27, 1851, Delegate Nathaniel Hawkins expressed support
for directing the proceeds from county seminary sales to the Common
School Fund. 2 Debates at 1851, 1867–68. But he questioned the prudence
of omitting from section 2 “some provision by which the honest debts and
proper liabilities of county seminaries shall be paid.” 28 Id. at 1868. Because
of this concern, Hawkins proposed an amendment which would have
required the pre-accrual allocation of sales proceeds for the payment of
26The Swamp Lands weren’t the only federal land grant under article 8, section 2. But of those
sources, it was alone in requiring cost offsetting. For example, the federal grant of Saline
Lands (the source of section 2’s “Saline fund”) required only that Indiana sell those lands at a
specific price and to “apply the proceeds of said sale to the purpose of education.” Act of July
3, 1832, ch. 155, 4 Stat. 558, 558.
27 Grant County was the first case from this Court to discuss article 8, section 2.
28Delegate Hawkins represented Randolph, Jay, and Blackford Counties at the constitutional
convention. 1 History of Jay County 92 (Milton T. Jay ed., 1922). Before that, Hawkins
“represented the counties of Jay and Adams in the Legislature of Indiana” in 1842. Id. After
the convention, Hawkins became the first judge of the Court of Common Pleas for Jay County
before dying in October 1853. Id. Suffice it to say, Hawkins was well-entrenched in mid-
nineteenth century Indiana politics.
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“all claims against any of the county seminaries arising out of the
donations for their construction.” Journal of the Convention of the People of
the State of Indiana to Amend the Constitution 807 (1851). But Hawkins’
colleagues considered this constitutional proviso unnecessary, ultimately
voting down the proposed amendment. See 2 Debates at 1868 (“Under this
section they may take some of the school fund and pay their debts.”)
(statement of Delegate Erastus Bascom).
Grant County, then, unmistakably dispelled Delegate Hawkins’ doubts
over whether, without an express provision, “the debts will necessarily
have to be paid out of the proceeds of the sale.” To be sure, the debts at
issue in that case amassed prior to constitutional ratification. See 7 Ind. at
315 (“The commissioners of Grant county undertook, in 1849, the building
of a county seminary. . . [before] the new constitution was adopted.”). But
nothing in the Court’s holding limits its application to only those debts
owed at the time of article 8’s adoption and ratification. And as this Court
has long held, our decisions “contemporaneous with” constitutional
ratification receive “strong and superseding precedential value.” Collins v.
Day, 644 N.E.2d 72, 77 (Ind. 1994) (citing Lafayette, M. & B. R. Co. v. Geiger,
34 Ind. 185, 213 (1870)).
To resolve any doubt, we find further support for this conclusion in
legislation enacted in the years immediately following constitutional
ratification permitting cost offset for various article 8, section 2 revenue
sources. Under the 1852 Free School Law, the General Assembly
mandated that “proceeds of the [seminary] sales, after deducting the
necessary expenses thereof and the amount due to individuals for
advances as aforesaid, shall be placed by the county treasurer to the credit
of the common school fund, to be disposed of in such manner as shall be
directed by law.” Act of June 12, 1852, ch. 97, § 15, 1 1852 Ind. Acts 437,
439 (emphasis added). During that same legislative session, lawmakers
enacted a measure permitting the pre-accrual distribution of proceeds
from the liquidation of an heirless estate to “pay debts” owed by the
decedent. Act of June 17, 1852, ch. 10, § 142, 2 1852 Ind. Acts 246, 281.
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 33 of 38
Together, these statutes demonstrate the legislature’s long-standing right
to permit offset before a forfeiture accrues to the Common School Fund. 29
In addition to permitting pre-accrual debt offset for heirless estates, the
Act of June 17 also directed the executors of those estates to hold the
property “until the expiration of five years.” Id. After this time passed,
executors could sell the property, with any proceeds then vesting in the
Fund. Id. It is this command that survived the attorney general’s challenge
in Meyer that the statute violated section 2’s “escheated land” provision,
which—like section 2’s forfeiture language—lacks explicit language
permitting legislative offsetting. See Ind. Const. art. 8, § 2 (directing the
Fund to consist of revenue “derived from the sale of . . . [a]ll lands and
other estate which shall escheat to the State, for want of heirs or kindred
entitled to the inheritance”). In upholding this statutory scheme, however,
the Meyer Court reasoned that the heirless property “never became a
component part of the common school fund” because it had “never been
sold as escheated lands.” 63 Ind. at 40, 41. In effect, the decision affirmed
the legislative prerogative to determine how and when certain property
vests in the State, despite the lack of express constitutional language
permitting such an arrangement. To absolve any lingering doubts over
this authority, the Meyer Court emphasized that the statute was “enacted
immediately after the adoption of the present constitution of this State, by
a General Assembly,” the members of which “had also been members of
the convention which framed that constitution.” Id. at 42–43.
For the reasons set forth above, our Constitution’s structure and
purpose refute Taxpayers’ claim that, “if the framers had intended that the
29Additional legislation from the mid-nineteenth century allowed offsets from other
contingent revenue sources intended for the Common School Fund. An 1857 statute, for
example, set aside for an informant “one half” of a criminal fine imposed on persons hunting
out of season, with the “other half” directed “to the common school fund.” Act of Feb. 26,
1857, ch. 31, §§ 1, 2, 1857 Ind. Acts 39, 39. And in 1872, the legislature directed the proceeds
from the sale of tax delinquent properties to “the common school fund of this State, after
deducting the expenses and charges of the sale.” Act of Dec. 21, 1872, ch. 37, § 207, 1872 Ind.
Acts 57, 110 (emphasis added).
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 34 of 38
forfeitures clause authorize cost-reimbursement, they would have said
so.” Appellants’ Br. at 31.
Conclusion
We acknowledge the critical role public schools play in nurturing our
children to become productive and law-abiding citizens. There is, after all,
“a legitimate, and often a close, connection between ignorance and crime.”
Ind. Dep’t of Public Instruction Fourteenth (Third Biennial) Report of the
Superintendent of Public Instruction for the State of Indiana 52 (1866). But
should the legislature decide to repeal the Civil Forfeiture Statute entirely,
leaving neither the Common School Fund nor law enforcement with an
important source of revenue, would that present Taxpayers with a
constitutional claim? Would that violate article 8, section 2’s mandate that
the Fund “shall consist of . . . all forfeitures which may accrue”? We think
the answer to these rhetorical questions is a resounding “no.” “[W]hether
it is good policy to do [so],” however, “is a matter with the legislature,”
not for this Court to decide. 30 State v. Indiana & I.S.R. Co., 133 Ind. 69, 80, 32
N.E. 817, 820 (1892).
Because our constitution’s text, structure, and history clearly show that
article 8, section 2 was “not self-acting in [its] operation,” Meyer, 63 Ind. at
40, we hold that the General Assembly may decide how and when
forfeiture proceeds accrue to the Common School Fund.
Judgment affirmed.
Goff, J., concurs.
Rush, C.J., concurs in result in Part I, concurs in Part II, and dissents
from Part III, with separate opinion in which Justice David joins in
part.
30 Today, the Common School Fund does not help directly finance our public schools. Instead,
it is used to make “advances” to schools for various specified purposes. See I.C. 20-49-3-8.
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 35 of 38
David, J., concurs in result in Part I and concurs in Parts II and III.
Slaughter, J., concurs in the judgment with separate opinion.
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 36 of 38
ATTORNEYS FOR APPELLANTS
J. Lee McNeely
Cynthia A. Bedrick
Scott A. Milkey
McNeely Stephenson
Shelbyville, Indiana
Samuel B. Gedge
Wesley P. Hottot
Institute for Justice
Arlington, Virginia
Seattle, Washington
ATTORNEYS FOR APPELLEES TERRY CURRY AND THE MARION
COUNTY PROSECUTOR’S OFFICE
Curtis T. Hill, Jr.
Attorney General of Indiana
Thomas M. Fisher
Solicitor General
Kian J. Hudson
Patricia C. McMath
Julia C. Payne
Deputy Attorneys General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES CITY OF INDIANAPOLIS AND
MARION COUNTY, JOSEPH H. HOGSETT, PAUL BABCOCK, AND
BRYAN ROACH
Donald E. Morgan
Traci M. Cosby
Tara L. Gerber
City of Indianapolis Office of Corporation Counsel
Indianapolis, Indiana
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 37 of 38
ATTORNEY FOR AMICI CURIAE ACCELERATE INDIANA
MUNICIPALITIES, INC. AND INDIANA MUNICIPAL LAWYERS
ASSOCIATION, INC.
Mark J. Crandley
Barnes & Thornburg LLP
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE INDIANA SCHOOL BOARDS
ASSOCIATION
Kent M. Frandsen
Parr Richey Frandsen Patterson Kruse LLP
Lebanon, Indiana
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 38 of 38
Rush, C.J., concurring in part and dissenting in part.
I take no issue with my colleagues’ conclusion that the plaintiffs have
standing as taxpayers, or with their analysis that Article 8, Section 2
applies to civil forfeitures.
I disagree with my colleagues, however, on two fronts. First, their
broader discussion of the public-standing doctrine—properly
characterized as dicta—is imprudent. It undercuts an important, long-
recognized instrument for maintaining the separation of powers and
checks and balances in Indiana, and it mistreats this Court’s precedent.
Second, I disagree that the current civil-forfeiture statute is constitutional.
If the legislature enacts a civil-forfeiture scheme, the amount collected
above the cost of obtaining the forfeiture must grow the Common School
Fund. Here, the current statute’s allocation scheme neither tracks offset
costs nor increases the Fund. Thus, the legislature overstepped a
constitutional limit on its authority.
I therefore concur in result in Part I, concur in full in Part II, and dissent
from Part III.
A. Standing
In my view, this Court’s precedent in Cittadine, Embry, and Meredith
secured the plaintiffs’ standing as taxpayers. So, no further discussion of
standing is necessary. Yet, the lead opinion, in dicta, engages in lengthy
criticism of both the public-standing doctrine and this Court’s precedent—
criticism to which I cannot subscribe.
To start, the public-standing doctrine, properly limited, does not
undermine the separation of powers. Rather, it serves an important role in
maintaining the separation of powers, with checks and balances, in state
government. While the general rule of standing certainly helps the
judiciary refrain from wading into waters reserved for the other branches,
the public-standing doctrine helps ensure that the legislature and
executive do not go beyond the boundaries of their authority. See State ex
rel. Cittadine v. Ind. Dep’t of Transp., 790 N.E.2d 978, 979–82 (Ind. 2003). It
allows the judiciary to step in when necessary to keep the branches within
their limited spheres. Id.; accord Sprague v. Casey, 550 A.2d 184, 187 (Pa.
1988); see also Project Extra Mile v. Neb. Liquor Control Comm’n, 810 N.W.2d
149, 159–60 (Neb. 2012).
This is an essential function and duty of the judiciary—to preserve the
structure of government established by the People through the
Constitution. Cf. Marbury v. Madison, 5 U.S. 137, 180 (1803) (observing
responsibility of courts to the Constitution); City of Arlington v. FCC, 569
U.S. 290, 327 (2013) (Roberts, C.J., dissenting) (observing judiciary’s
obligation “not only to confine itself to its proper role, but to ensure that
the other branches do so as well”). Preserving that structure depends on
effectively checking unconstitutional exercise of authority. See The
Federalist Nos. 48 (James Madison) & 51 (Alexander Hamilton or James
Madison). And the public-standing doctrine enables such a check in state
government: it permits the People to procure the enforcement of a public
right by invoking the judiciary’s guardianship of the Constitution when
the constitutional structure has been compromised.
The absence of a comparable public-standing doctrine in the federal
system is not a reason for us to eliminate this long-standing feature of
Indiana law. See, e.g., Hamilton v. State ex rel. Bates, 3 Ind. 452, 458 (1852).
Structural differences between the federal and state governments may call
for different standing requirements. After all, the federal government has
only the powers enumerated in the Federal Constitution. Murphy v. Nat’l
Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475–76 (2018). State government,
by contrast, has plenary power, limited only by the restrictions imposed
by the federal and state constitutions. Id. When a state constitution
imposes a limit on that power, less stringent standing demands may be
necessary to keep government actors within their proper domains. Indeed,
like Indiana, many other states have recognized that public standing has a
rightful place in state law. See Cittadine, 790 N.E.2d at 982–93.
Apart from my disagreement over the public-standing doctrine’s role
in maintaining the structure of and checks on our state government, I
believe the lead opinion misrepresents, misreads, and maltreats this
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 2 of 7
Court’s decisions in Pence, Cittadine, Embry, and Meredith. It sees these
opinions as presenting “doctrinal obfuscation” and “ostensibly competing
theories” on the public-standing doctrine. Slip op. at 13–14. And it gives
Cittadine “no precedential weight,” id. at 16, while also treating Justice
Dickson’s Embry opinion on standing as a plurality opinion, id. at 12, even
though it garnered a majority, making it the Court’s opinion. I view these
cases differently.
As a threshold matter, standing involves a general rule and an
exception to that rule. The general rule is that the plaintiff must show a
private injury, which is a harm different from that suffered by the general
public. The exception is the public-standing doctrine. It is an exception
because the plaintiff must show a public, rather than a private, injury. This
doctrine has limits. And this Court has recognized some of them,
including a requirement of extreme circumstances. 1 The Court has also
recognized a category of public standing: taxpayer standing. This category
applies when the plaintiff is a taxpayer challenging a legislative enactment
as exceeding a specific constitutional limit on the exercise of the
legislature’s power over the state purse.
This Court applied the general rule of standing in Pence v. State, 652
N.E.2d 486 (Ind. 1995). In that case, Justice Dickson believed the exception,
rather than the rule, should have applied. Id. at 489 (Dickson, J.,
dissenting). The Court then unanimously applied the public-standing
exception to the motorist–plaintiff in Cittadine, 790 N.E.2d at 984,
explaining that the general rule applied in Pence because the
circumstances of that case called for cautious restraint in the Court’s
exercise of judicial discretion. Cittadine, 790 N.E.2d at 983. In other words,
in Pence, the reasons for applying the general rule outweighed the reasons
for applying the exception. Cf. Green v. Obledo, 624 P.2d 256, 267 (Cal.
1981) (in bank) (“[T]he policy underlying the exception may be
1As I understand the public-standing doctrine, “extreme circumstances” include situations in
which dispensing the general standing requirements serves to maintain the separation of
powers or is necessary to check whether a government actor has overstepped a specific
boundary to its authority.
Indiana Supreme Court | Case No. 18S-PL-333 | June 27, 2019 Page 3 of 7
outweighed in a proper case by competing considerations of a more
urgent nature . . . .”). The Court in Cittadine also explained both that
“Pence did not alter the public standing doctrine in Indiana” and that the
doctrine, though subject to limits, “continues to be a viable exception to
the general standing requirement.” 790 N.E.2d at 983.
Next, in Embry, a majority 2 of the Court relied on Cittadine to apply the
public-standing exception to the taxpayer–plaintiffs. Embry v. O’Bannon,
798 N.E.2d 157, 159–60 (Ind. 2003). The Court later relied on this Embry
majority in Meredith, when it unanimously observed that the exception
applied to the taxpayer–plaintiffs. Meredith v. Pence, 984 N.E.2d 1213, 1217
n.4 (Ind. 2013).
Thus, Cittadine is precedential; the Court’s Embry opinion on standing
is precedential; and to the extent Cittadine may conflict with Pence in
applying the public-standing exception instead of the rule, Cittadine
controls as the more recent and still-precedential decision. Ultimately, I
see no “doctrinal obfuscation” in these cases—they indicate that taxpayer
standing is a category of public standing, and that public standing applies
only when cautious judicial restraint is outweighed by the need for the
Court to ensure government actors stay within the confines of their
authority.
Under this Court’s decisions in Cittadine, Embry, and Meredith, the
plaintiffs here have public standing under the taxpayer category: they are
taxpayers who have alleged a public harm caused by legislative action
2 My colleagues appear to treat Part I of Justice Dickson’s opinion in Embry as a two-justice
plurality: Justice Dickson joined by Justice Rucker. But Justice Sullivan explicitly concurred
with this part. Embry v. O’Bannon, 798 N.E.2d 157, 167 (Ind. 2003) (Sullivan, J., concurring in
part 1 and concurring in result in part 2) (“I concur in part 1 of the Court’s opinion[.]”). True,
Justice Sullivan wrote separately. But his separate concurrence did not alter his concurring
vote with Justice Dickson’s opinion on standing; it simply gave “more detailed attention” to
that issue. Id. And although Justice Boehm voted “concur in result” for the opinion as a whole,
he wrote, “I agree with the majority in the portion of its opinion concluding that plaintiffs
have standing to assert their claims.” Id. at 169 (Boehm, J., concurring in result). So, the
standing portion of Justice Dickson’s Embry opinion garnered a majority with at least three—
and possibly four—votes.
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that exceeds a specific constitutional limit on the legislature’s authority
over the purse—a limit this Court is responsible for safeguarding against
legislative overreach. Since the plaintiffs have standing under that
category, the lead opinion’s broader discussion of the public-standing
doctrine is dicta. And it is dicta that imprudently drives a knife into not
only the heart of the judiciary’s duty to ensure that each branch of
government stays within its assigned lane, but also this Court’s precedent
and integrity as a decision-making institution.
B. Constitutionality of the Civil-Forfeiture Statute
In my view, Article 8, Section 2 imposes a condition on civil-forfeiture
legislation: all forfeitures, save offset costs, must go to the Common
School Fund. And because the current civil-forfeiture statute does not
designate to the Fund all forfeitures, above the costs of obtaining them, it
is unconstitutional.
My colleagues reason that since the legislature may enact no civil-
forfeiture statute at all, it must have unlimited authority to determine
whether, when, and how a forfeiture “accrues” under Article 8, Section 2.
But that reasoning doesn’t add up.
A constitutional provision that is “not self acting” can still limit
governmental action. Put differently, the legislature may refrain from
enacting a civil-forfeiture statute—but if it chooses to enact one, the
Constitution may limit the legislature’s authority in drawing the statute’s
contours. I believe Article 8, Section 2 does just that.
The text, structure, and history of Article 8, Section 2 suggest that only
the portion of a forfeiture that exceeds the cost of collecting it accrues to
the Fund. So, I would hold that “all forfeitures which may accrue” in
Article 8, Section 2 is all civil forfeitures minus offset costs necessary to
obtain each forfeiture. In other words, to the extent my colleagues hold
that expenses incurred in obtaining the forfeiture are not part of a
forfeiture that accrues, I agree.
But Article 8, Section 2 does not permit allocations apart from offset
costs. To the contrary, offset costs, including incentives necessary to collect
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the forfeiture, prevailed in Indiana’s past 3 because they were a means to
increase the Fund. See, e.g., Act of Mar. 10, 1873, ch. 7, §§ 2, 9, 11, 1873 Ind.
Laws 18, 18–20. This Court has never held that a civil-forfeiture statute is
constitutional even though the allocations bear no correlation to expenses
incurred in obtaining the forfeiture.
Here, under the current civil-forfeiture statute, any contributions to the
Fund are not guaranteed and are capped at ten percent of the collected
forfeiture. Without any showing that the allocations are offset costs of
obtaining each forfeiture and that those offset costs serve to grow the
Fund, the permissibility of offset costs does not save the statute from
constitutional infirmity. Therefore, because the statute’s allocation scheme
does not increase the Fund or demonstrate a tie to expenses incurred in
obtaining each forfeiture, the statute is unconstitutional.
True, the plaintiffs here argue that Article 8, Section 2 permits no
diversions from forfeitures, including offset costs. This argument goes too
far. But the legislature also went too far. And it is our duty to ensure that
each branch of government stays within the constitutional bounds of its
authority. The majority’s holding—that Article 8, Section 2 permits the
legislature to essentially define “accrue”—not only makes that portion of
3Whether each of those allocation schemes was constitutional is less clear to me than to the
majority. This Court never decided the constitutionality of those schemes. For example, in
State ex rel. Attorney General v. Denny, the constitutionality of the statute was not before the
Court. 67 Ind. 148 (1879). Rather, the plaintiffs contended that the former attorney general’s
actions violated the statute, and the Court addressed only that contention. Id. Similarly, State
v. Elliott was a divided opinion in the Court of Appeals, not a decision of the Indiana Supreme
Court, and it did not directly address the statute’s constitutionality under Article 8, Section 2.
171 Ind. App. 389, 357 N.E.2d 276 (1976). That case concerned a plaintiff’s attempt to recover
funds that a judge had determined were mistakenly forfeited in the first place. Id. at 390, 357
N.E.2d at 277. The disagreement in the court was about whether that judicial determination
permitted the plaintiff to recover the funds after they had arrived at their final destination, in
the Treasurer’s hands. Id. at 391–93, 357 N.E.2d at 277–79. The majority determined that was
too late, because by the time the Treasurer had the funds, “such funds had clearly accrued to
the Common School fund and could not properly be recovered,” id. at 393, 357 N.E.2d at 279.
This conclusion, like the Court’s decision in Denny, did not establish the statute’s
constitutionality under Article 8, Section 2. And each decision is far from a determination by
this Court that the legislature has unlimited authority to define whether, when, and how
accrual of a forfeiture occurs.
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the Constitution hollow; it also upsets the judiciary’s vital role to interpret
the Constitution.
I therefore concur in part and dissent in part.
David, J., joins in Part A.
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Slaughter, J., concurring in the judgment.
I agree with the Court that the judgment below for Defendants and
against Plaintiffs must be affirmed. But I reach that result for different
reasons. I would hold that Plaintiffs lack standing under the only standard
consistent with our Constitution’s mandate of separate governmental
powers. In my view, Article 3, Section 1 requires, among other things, that
a plaintiff suffer individualized injury in fact and not a generalized harm
indistinct from the public at large. Our prevailing judicial doctrines that
permit taxpayer and citizen (also known as public-interest) standing are
incompatible with this constitutional command. Although I have serious
concerns with the way Indiana carries out civil forfeitures, see generally
Leonard v. Texas, 137 S. Ct. 847 (2017) (Thomas, J., respecting denial of
certiorari), I would not reach the merits of Plaintiffs’ constitutional claim.
Instead, I would dismiss their complaint for lack of standing and await
another case—brought by the State or by a private party with a concrete,
particularized injury—to address the important constitutional questions
that this and other civil-forfeiture cases implicate.
I.
Standing is an essential aspect of justiciability, which concerns the
propriety and power of a court to hear a case and award relief. It also is
central to separation of powers—the disbursal of governmental power
among the three separate branches. A correct view of standing ensures
that the complaining party is invoking the “judicial power”, properly
understood, and not asking the judiciary to ignore our constitutional
structure or perform functions belonging to another branch.
As James Madison explained in The Federalist No. 47, the principal
reason for separating governmental power was to protect liberty and
avoid tyranny. “The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny.” In the same essay, Madison addressed the
threat to liberty if courts did not confine themselves to exercising judicial
power. “[T]here can be no liberty … if the power of judging[] be not
separated from the legislative and executive powers[.]”
Madison’s concerns are reflected in our own Indiana Constitution,
which divides state government into “three separate departments”: “the
Legislative, the Executive including the Administrative, and the Judicial”.
Ind. Const. art. 3, § 1. No official within one department “shall exercise
any of the functions of another, except”—and this is a key qualification—
"as in this Constitution expressly provided.” Id. In other words, the only
permissible deviation from strictly separate governmental powers arises
when the Constitution itself permits it. One implication of this rule is that
courts cannot exercise the distinct powers allocated to the other branches.
Our Constitution assigns to courts the responsibility for exercising the
“judicial power”: “The judicial power of the State shall be vested in one
Supreme Court, one Court of Appeals, Circuit Courts, and such other
courts as the General Assembly may establish.” Id. art. 7, § 1. This
delegation of the judicial power prompts this central question: What,
precisely, are the contours of the “judicial power”, which only courts may
exercise? The answer begins with a proper conception of standing, which
permits courts to adjudicate a claim only to the extent the plaintiff has
sustained an actual injury and seeks to vindicate a private right.
A.
As we have recognized, standing is a “threshold” question for the
courts, Pence v. State, 652 N.E.2d 486, 487 (Ind. 1995), and a “key
component in maintaining our state constitutional scheme of separation of
powers.” Id. at 488. Standing imposes a “significant restraint on the ability
of Indiana courts to act” because it “denies the courts any jurisdiction
absent an actual injured party participating in the case.” Id. This
requirement of an “actual injured party” is not merely a prudential matter
that courts can enforce or ignore as they see fit. It is, rather, a mandate that
flows necessarily from our constitutional scheme of divided governmental
powers.
We observed in Pence that, unlike the federal Constitution, our state
Constitution has no explicit “case or controversy” requirement. Id. That
remains largely true today, except for a 2018 amendment to Article 10,
Section 5. But despite the lack of a general case-or-controversy mandate,
“our explicit separation of powers clause fulfills a similar function.” Id.
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Thus, the requirement of a case or controversy is implicit in our
Constitution’s express separation-of-powers mandate.
Just last year, the People amended our State Constitution to require the
general assembly to adopt a balanced budget unless two-thirds of each
legislative chamber vote to suspend the requirement. Ind. Const. art. 10, §
5(f). The amendment also provides specific judicial remedies for enforcing
the provision and, relevant here, appears to contemplate that any such
remedy must arise in connection with a “case or controversy”.
A court that orders a remedy pursuant to any case or
controversy arising under this section may not order any
remedies other than a declaratory judgment or such other
remedies that are specifically authorized by the General
Assembly in a law implementing this section.
Id. art. 10, § 5(g). Because our recent standing precedent has ignored the
implicit case-or-controversy requirement within Article 3, Section 1, it is
noteworthy that this amendment leaves no doubt that a plaintiff’s
generalized injury will not suffice to confer standing.
Our standing case law holds it is insufficient that a plaintiff merely has
a general interest common to all members of the public. “[O]nly those
persons who have a personal stake in the outcome of the litigation and
who show that they have suffered or were in immediate danger of
suffering a direct injury as a result of the complained-of conduct will be
found to have standing.” State ex rel. Cittadine v. Indiana Dep’t of Transp.,
790 N.E.2d 978, 979 (Ind. 2003) (citations omitted). But we stray from our
requirement of an actual or imminent direct injury when claimants seek to
enforce public rights or interests. “[W]hen a case involves enforcement of
a public rather than a private right the plaintiff need not have a special
interest in the matter nor be a public official.” Id. at 980 (citations omitted).
B.
The Court’s opinion today treats public standing and taxpayer standing
as “distinct”, though the Court acknowledges some degree of “overlap”
between these two doctrines. Public standing refers to a private litigant’s
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enforcement of a public right—often challenging governmental action
believed to be illegal or unconstitutional. Taxpayer standing refers to a
private litigant’s specific kind of legal challenge—usually to an allegedly
unlawful appropriation or expenditure of public funds. See Embry v.
O’Bannon, 798 N.E.2d 157 (Ind. 2003).
On this point, I am closer to the Chief Justice’s view that taxpayer
standing is a “category” or subset of public standing. The strong
interrelationship, however, between public and taxpayer standing does
not save either doctrine but condemns them both. The Chief Justice notes
that these doctrines—court-created exceptions to actual-injury standing—
are not new to our jurisprudence but a “long-standing feature of Indiana
law”. That is true. But the long lineage of these exceptions does not make
their pedigree noble.
When courts entertain a plaintiff’s claim to vindicate a public right, we
disrespect a key portion of the foundational bargain that “WE, the People
of the State of Indiana” struck. Ind. Const. pmbl. In 1816 and again in
1851, the People exercised “the right to choose our own form of
government”, id., and could not have been clearer that they were vesting
the “executive power of the State” not in the courts or in private citizens
but “in a Governor”, id. art. 5, § 1, whose most solemn duty is to “take care
that the laws are faithfully executed.” Id. art. 5, § 16. When we confer
standing on citizens having no particularized injury and whose only
interest in the case is their shared, common interest “with other citizens in
the execution of the law”, Wampler v. State ex rel. Alexander, 148 Ind. 557,
572, 47 N.E. 1068, 1072 (1897), we invade the executive’s peculiar power,
conferred by the People, to execute or enforce the law. Stated differently,
courts disregard the governor’s authority when we entertain suits by
plaintiffs whose only claim is a generalized grievance indistinct from that
of the public at large. Such a public-right claim to enforce the law should
be brought, if at all, by the executive. A proper view of standing respects
separation of powers by limiting courts to adjudicating only those
disputes involving aggrieved parties with an actual, particularized injury.
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C.
The Supreme Court of the United States, in Lewis v. Casey, 518 U.S. 343
(1996), explained the courts’ role this way, describing both what that role
is and what it is not:
It is the role of courts to provide relief to claimants, in
individual or class actions, who have suffered, or will
imminently suffer, actual harm; it is not the role of courts, but
that of the political branches, to shape the institutions of
government in such fashion as to comply with the laws and the
Constitution.
Id. at 349. Lewis thus reinforced the long-settled notion—dating at least to
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)—that “[t]he province of
the court is, solely, to decide on the rights of individuals”. Id. at 170. The
“rights of individuals”, thus understood, do not mean public rights
belonging generally to the public at large. Lujan v. Defenders of Wildlife, 504
U.S. 555, 578 (1992).
This view of the judiciary’s limited role is not confined to the federal
courts. In Indiana, this same understanding—that courts vindicate only
private rights—dates at least to the mid-nineteenth century and predates
our current 1851 Constitution. We held in Brewington v. Lowe, 1 Ind. 21
(1848), that “[c]ourts of justice are established to try questions pertaining
to the rights of individuals.” Id. at 23. We went on to explain that a court’s
authority extends only to the vindication of individual rights “directly
affecting the parties litigant”.
[U]nless some individual right, directly affecting the parties
litigant, is thus brought in question so that a judicial decision
becomes necessary to settle the matters in controversy between
them relative thereto, the Courts have no jurisdiction; and it
would be a perversion of the purposes for which they were
instituted, and an assumption of functions that do not belong to
them, to undertake to settle abstract questions of law in
whatever shape such questions may be presented.
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Id.
Brewington’s modest view of the judicial role is not due to a stricter
separation of powers under the 1816 Constitution. In words and
substance, that charter’s separation-of-powers mandate—contained in
Article II—is no stricter than what prevails today. Like its 1851
counterpart, the 1816 version also created a tripartite system of
governmental powers, prevented one department from exercising the
powers of another, and said the only exceptions are those contained in the
Constitution itself.
The powers of the Government of Indiana shall be divided into
three distinct departments, and each of them be confided to a
separate body of Magistracy, to wit: those which are Legislative
to one, those which are Executive to another, and those which
are Judiciary to another: And no person or collection of
persons, being of one of those departments, shall exercise any
power properly attached to either of the others, except in the
instances herein expressly permitted.
1816 Ind. Const. art. II.
These federal and state authorities all point in one direction. They
establish that Indiana’s prevailing standing jurisprudence, reflected in
cases such as Cittadine and Embry, violates separation of powers because it
authorizes courts to adjudicate claims premised not only on private rights
but also on public rights—whether asserted as public or taxpayer
standing. We must return the judiciary to the limited role the People
fashioned for us—adjudicating only those claims consistent with our
constitutional structure. A necessary step is to limit standing accordingly.
D.
Standing is a core principle for identifying those disputes that are
properly resolved in the courts. The judiciary must be vigilant in self-
policing how we discharge the judicial power, lest we intrude on the
powers of the other branches. The only concept of standing consistent
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with separate governmental powers requires the plaintiff to prove actual
injury, causation, and redressability.
First, the plaintiff must have suffered an injury in fact—an
invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection
between the injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some
third party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Lujan, 504 U.S. at 560-61 (cleaned up). In addition to being constitutionally
compelled, this test has the added virtue of providing clear rules for
litigants and lower courts to identify who can invoke the judicial power—
and, just as important, who cannot.
This approach stands in stark contrast to our recent standing rules,
which have been anything but clear. In Pence, we recognized a narrow
exception to injury-in-fact standing in “extreme circumstances”, 652
N.E.2d at 488, without specifying what that means or how it applies. More
recently, in Cittadine, we relaxed that standard further and held that
exceptions to traditional standing are not limited to extreme
circumstances but reflect “our exercise of judicial discretion with cautious
restraint under the circumstances.” 790 N.E.2d at 983. The assurance that
we will exercise our discretion “with cautious restraint” is no restraint at
all. Such a standardless benchmark for exercising the judicial power
undermines the rule of law and amounts to an elastic, “we-know-it-when-
we-see-it” yardstick that leaves standing principles open to the pleasure of
courts. Yet courts are as susceptible as other human institutions to self-
aggrandizement and the temptation to arrogate to ourselves power that
properly belongs with others.
Our fundamental law, ratified by the People in 1816 and again in 1851,
recognized these risks. That is why these charters imposed strict limits on
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the exercise of governmental power, including the judicial power. And the
only permissible exceptions to these strict limits were those each
Constitution specifically authorized. Because courts have ultimate
responsibility to say what the law is, we must be especially vigilant in
resisting the allure of expanding our own authority by encroaching upon
the power that the People committed to another branch.
Our prevailing “come-one-come-all” approach to public and taxpayer
standing does not, contrary to the Chief Justice’s view, “maintain”
separate governmental powers but undermines them. Our precedent
authorizing generalized-injury standing, which the Chief Justice defends,
proceeds from the erroneous premise that the only remedy for reining in
an executive or legislature that has “overstepped” its legal authority lies
with the courts. But not every legal wrong has a corresponding judicial
remedy. Courts have no business entertaining suits to enforce the law
brought by claimants lacking an actual, particularized injury. The recourse
for such persons lies not in the courts but in the court of public opinion—
meaning the electoral process and, ultimately, the ballot box. Such persons
must make their case elsewhere—before politically accountable officials.
As just one example, if unconstitutional legislation is threatened, those
seeking to vindicate the public interest can petition the legislature not to
enact it; they can persuade the governor not to enforce it; they can lobby
the attorney general not to defend it. What they cannot do—unless the
legislation aggrieves them personally—is obtain relief from the courts.
This limitation on the role of courts is not a weakness of our system but
one of its central strengths.
E.
I take seriously the strong pull of stare decisis. But if a prior decision is
clearly wrong, we have no legitimate basis for perpetuating the error. Our
obligation as state judges is to support, among other things, the
“Constitution of the State of Indiana”, not the erroneous judicial decisions
interpreting it. I would revisit our standing precedent to the extent it
permits claimants alleging only a generalized injury to vindicate public
rights. That precedent cannot be reconciled with the system of divided
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governmental powers the People ratified in both our 1816 and 1851
Constitutions.
II.
Applying these principles here requires that we dismiss Plaintiffs’
complaint. Police initially seized two of Plaintiffs’ vehicles, belonging to
the Horners, and the local prosecutor sought to forfeit them, claiming the
Horners had used them to transport marijuana. The vehicles were
eventually returned after the prosecutor dismissed the underlying
criminal charges. The Horners and others later sued, alleging that
Indiana’s civil-forfeiture statute unlawfully diverts forfeiture proceeds
from the common-school fund. Plaintiffs do not claim to have sustained
an actual, particularized injury from the allegedly unlawful diversion of
forfeiture revenues. To the contrary, they acknowledge their standing is
based on their status as “citizens and taxpayers” of Indiana, meaning their
purported injury is indistinct from that of the public at large. The judicial
power, properly understood, does not extend to such generalized
grievances. We should dismiss Plaintiffs’ complaint and not reach the
merits of their constitutional claim.
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