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Civil forfeiture defendants file motion to dismiss

April 6, 2016

Defendants in a civil forfeiture complaint lodged earlier this year in Marion Superior Court have filed a motion to dismiss on the grounds the plaintiffs and the court lack standing.

Indiana Attorney General Greg Zoeller’s office filed a motion to dismiss March 31 on behalf of defendant Terry Curry, the Marion County prosecutor, and the Marion County Prosecutor’s Office.

The complaint, Jeana M. Horner, Dennis Jack Horner, Jennifer K. Thompson et al. v. Terry R. Curry, Marion County Prosecutor’s Office, Consolidated city of Indianapolis/Marion County, et al., 49D06-1602-PL-004804, was filed in February by the Virginia-based Institute for Justice. Rather than challenging Indiana’s civil forfeiture law in general, the plaintiffs have narrowed their argument to the money. They argue by not forwarding 100 percent of the proceeds from the forfeitures to the common school fund, the defendants are violating the state constitution.

However, the attorney general countered the plaintiffs lack standing because none have a personal stake in the outcome of the litigation and cannot show they have suffered as a result of the prosecutor’s actions. Only the superintendent of public instruction could lodge an action seeking forfeiture money for the common school fund.

“None of the allegations set forth in the Complaint support Plaintiffs’ standing to bring suit under the general rule of standing,” the motion said. “Though the Horners were allegedly involved in a forfeiture action back in 2013, it appears that the action ultimately resolved in their favor. As a result, there is no need to redress that case in this Court, nor would it be legally appropriate for this Court to do so.”

Among the precedent the highlighted in support of the defendants’ position, the attorney general pointed to Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995).

In this case, a group of Indiana residents, led by plaintiff Michael R. Pence, brought a suit challenging the constitutionality of a law that increased the pay of Indiana legislators while the General Assembly was in session. The plaintiffs asserted they were interested as citizens and taxpayers but the Supreme Court found that the parties lacked public standing because they failed to demonstrate any interest beyond that of the general public.

“…the Complaint alleges no facts to show that any of the Plaintiffs have any direct personal interest in the civil forfeiture laws or the common school fund, other than being ‘Indiana citizens and taxpayers in good standing.’ According to Pence, this is not enough,” Zoeller wrote in the motion to dismiss Horner.

Also Zoeller argued the Marion County court does not have jurisdiction.

The plaintiffs want the court to enjoin the defendants from allocating any civil forfeiture money to cover law enforcement costs. But the attorney general, citing State v. Downey, 14 N.E.3d 812, 815 (Ind. Ct. App. 2014), contended one trial court cannot control the orders or process of other trial courts.  

“This Court does not have the authority to instruct other courts of equal jurisdiction on how to order the distribution of law enforcement costs and remaining funds that are forfeited,” the attorney general asserted. “Therefore, any such request by the Plaintiffs should be denied.”

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