by Matt Clarke

The Supreme Court of Indiana held that civil forfeiture triggers the right to a jury trial.

As Alucious Kizer fled from a traffic stop, he discarded 74 grams of methamphetamine, 67 grams of fentanyl,12 grams of cocaine, and 10 grams of crack cocaine. Police recovered the drugs and $2,345 in cash. The State filed a complaint to forfeit the cash, alleging it had been used to facilitate a crime or was “traceable as proceeds from a crime.”

Proceeding pro se, Kizer denied the allegations and requested a jury trial. The State filed a motion to strike the demand for a jury trial, arguing that such a right does not exist under either the Indiana or U.S. Constitutions. The trial court ultimately denied the State’s motion, citing a lack of guidance from the state’s appellate courts. The State was given permission to file an interlocutory appeal.

The Court of Appeals unanimously reversed, concluding that the state Supreme Court “has long held” that civil forfeiture is “not a case under the common law when the [state] Constitution was adopted” in 1851, and thus, the “parties are not entitled to trial by jury.” It reasoned that by “denying individuals the ability to profit from ill-gotten gain, an action in civil forfeiture resembles an equitable action for disgorgement or restitution,” quoting Caudill v. State, 613 N.E.2d 433 (Ind. Ct. App. 1993).

Newly represented by attorneys Marie Miller and Susan B. Gedge of the Institute for Justice in Arlington, Virginia, Kizer successfully petitioned the Indiana Supreme Court for transfer.

The Court rejected the State’s contention that the civil forfeiture proceeding was a “special statutory procedure” with no right to jury trial attached, agreeing with Kizer that such a “theory would effectively deprive Hoosiers of a jury trial when filing under any modern statutory scheme” that did not exist in 1851 when the current state Constitution was adopted. It noted that in Midwest Security Life Insurance Co. v. Stroup,730 N.E.2d 163 (Ind. 2000), although the court had expressly not ruled on the right to a jury trial, Judge Boehm’s concurrence suggested that “‘The critical inquiry was not, as the Court of Appeals put it, whether a cause of action existed at common law,’ but, rather, ‘whether the cause of action is essentially legal or equitable, as those terms were used in 1851.”

“Indiana courts have adopted Judge Boehm’s analysis in several cases,” and the Court adapted it to clarify the proper test for the right to trial by jury found in Article I, Section 20 of the Indiana Constitution. It announced: “Parties in a civil case have a right to trial by jury in a cause of action (1) that was triable by jury at the adoption of the current constitution in 1851; or (2) if no such cause existed at the time, one that is essentially legal, rather than equitable, as those terms were understood in 1851, considering the complaint, the rights and interests involved, and the relief demanded.”

The Court examined the history of civil forfeitures where an action is filed against property (in rem) rather than in against a person (in persona). It found that only of the three types of forfeiture in English common law at the time of the Revolution, only statutory forfeiture was adopted by the states and the U.S. Initially, in rem forfeiture proceedings in colonial America were in common-law courts, “which closely followed the procedure in [the English Court of] Exchequer’ complete with jury trials. By the late seventeenth century, however, Parliament—prompted by ‘the obstinate resistance or American juries—had vested concurrent jurisdiction over colonial forfeiture proceedings in the vice-admiralty courts, which conducted proceedings without a jury.”

The jurisdiction of the vice-admiralty court was expanded to include any “act or acts of parliament relating to the trade and revenues” of the colonies. “This jurisdictional expansion of the vice-admiralty courts into cases that had little to do with maritime commerce would ultimately inspire the colonists—in their 1776 Declaration of Independence—to bitterly denounce the King and Parliament for depriving them ‘in many cases of the Benefits of trial by Jury.’”

“With independence from England, the new states continued to rely on statutory forfeiture (and in rem proceedings) as an effective tool of law enforcement and revenue generation.” The “federal government followed suit” with “exclusive jurisdiction in the federal district courts over ‘all seizures under the laws of impost, navigation or trade of the United States’ and ‘all suits for penalties and forfeiture incurred under the laws of the United States.’ … The presence of a jury depended on the type of forfeiture sought.” Maritime claims proceeded as if in a court of admiralty, without a jury, while claims involving property seized on land proceeded with a jury as the factfinder. Thus, the Court concluded that both English and American practice before and after 1791 recognized jury trial of in rem actions at common law as the common mode of determining the propriety of statutory forfeitures on land.

The Indiana Territorial governments used statutory forfeiture for such offenses as unlawfully trading with Native Americans, holding a raffle or lottery, and having an unregistered slave. The forfeiture laws expanded after Indiana attained statehood and included in rem proceedings. Those forfeiture laws were consistent with English practice and included a right to a jury in most cases.

When the current state Constitution was adopted in 1851, the government had the option of proceeding in persona or in rem in forfeiture cases, Steward v. State, 103 N.E. 316 (Ind. 1913). However, in rem proceedings were rare as criminal forfeiture was the preferred procedure, e.g., Loesch v. Koehler, 41 N.E. 326 (Ind. 1895). The Court concluded “that, while infrequently used, actions for in rem forfeiture of property implicated the right to trial by jury in Indiana, both before and after 1851.” It found “no need to distinguish money from other property traditionally subject to in rem forfeiture.”

Although the existence of the right to a jury in 1851 decided the question, the Court went on to opine that, even if no such cause of action had existed in 1851, the instant forfeiture was akin to an action at law for which a jury is required. The State had argued that it was similar to the non-jury “equitable practice” of disgorgement or restitution. The Court disagreed, stating that those remedies had “developed on a distinctly in persona theory, rather than in rem.” Thus, the Court held that “a claimant in an action brought under Indiana’s civil forfeiture statute has a constitutional right to trial by jury.”

Accordingly, the Court affirmed the trial court remanded for trial by jury. See: State v. $2,435 in United States Currency, 220 N.E.3d 542 (Ind. 2023).  

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