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Horner v. Curry

Supreme Court of Indiana

June 27, 2019

Jeana M. Horner, et al. Appellants (Plaintiffs below)
Terry R. Curry, et al. Appellees (Defendants below)

          Argued: October 25, 2018

          Appeal from the Marion Superior Court, No. 49D06-1602-PL-4804 The Honorable Thomas J. Carroll, Judge

          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


          ATTORNEY FOR AMICUS CURIAE INDIANA SCHOOL BOARDS ASSOCIATION Kent M. Frandsen Parr Richey Frandsen Patterson Kruse LLP Lebanon, Indiana


          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 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 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).

         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 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 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 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 taxpayer 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 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 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 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 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 (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 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 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.

         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 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] 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 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 [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 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 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 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 ...

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