Jeana M. Horner, et al. Appellants (Plaintiffs below)
Terry R. Curry, et al. Appellees (Defendants below)
Argued: October 25, 2018
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
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,
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
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.
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
and Procedural History
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,  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).
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)
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. §
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.
appealed, requesting direct transfer to this Court under
Appellate Rule 56(A). Because this "appeal involves a
substantial question of law of great public importance,"
id., we accepted jurisdiction.
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
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).
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.
Do Taxpayers have standing?
threshold question for this Court is whether Taxpayers have
standing to litigate their claim.
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.
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).
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."Good fences make good
neighbors," after all. Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 240 (1995).
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.
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.
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.
From the mid-nineteenth century through today, our standing
jurisprudence reveals a gradual shift toward judicial
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. 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).
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").
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).
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).
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
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).
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
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).
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.
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).
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 . . .
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.
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)). 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). 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.
where does this leave us? How do we reconcile these
ostensibly competing theories of standing?
Taxpayer standing and public standing are distinct
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
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." 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
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? 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.
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. 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
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,  (2) demonstrate some
personal stake in the outcome of the controversy, and (3)
show "extreme circumstances" warranting judicial
Taxpayers have standing to litigate their claim under our
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).
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
Article 8, section 2 applies to civil forfeitures.
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.
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.
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.
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
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.
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,
Article 8, section 2 permits the legislature to determine how
and when forfeiture proceeds accrue to the Common School
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.
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
Text of article 8.
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." 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).
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. 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 ...