AGO 2010-1.

• Case Date: May 12, 2010
• Court: Indiana

Indiana Attorney General Opinions 2010. AGO 2010-1. May 12, 2010OFFICIAL OPINION 2010-1Stephen J. Johnson Executive Director Indiana Prosecuting Attorneys Council 302 West Washington Street, Room E-205 Indianapolis, Indiana 46204-2767Re: Civil Forfeitures and the Common School FundDear Mr. Johnson: You requested a legal opinion on the following issue:

Does the fine and forfeitures provision in Article 8, § 2 of the Indiana Constitution apply to civil forfeiture actions brought under Ind. Code ch. 34-24-1?

It is our opinion that Article 8, § 2 of the state constitution does not apply to forfeiture actions brought under Ind. Code ch. 34-24-1. Article 8 of the Indiana Constitution provides for the funding of the common school fund, part of which is derived "from the fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue." Art. 8, § 2.A proceeding under Indiana's forfeiture law is civil in nature, and it is only fines and forfeitures from criminal proceedings that must be paid into the common school fund. Background The Indiana Constitution provides that a funding source for the common school fund is "fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue". Article 8, § 2. Under Indiana's forfeiture statute, Ind. Code § 34-24-1-1 et seq., the proceeds from forfeiture proceedings are properly allocated to the appropriate law enforcement agencies and any excess is then paid to the state for the common school fund. Ind. Code § 34-24-1-4(d)(2)(C)(i) and (D). Discussion Both of Indiana's constitutions have directed fiscal penalties resulting from violations of the penal laws to be used as a source of public funding for education and our Supreme Court has consistently held that those penalties are to be derived only from civil, and not criminal, proceedings. The Indiana Constitution of 1816 provided for public support of county seminaries from "all fines assessed for any breach of the penal laws" in the counties where the crime took place. Ind. Const, of 1816, art. 9 § 3. In examining that provision, the Court concluded that "a suit on a penal statute is not a criminal but a civil cause." The Common Council of the Town of Indianapolis v. Fair child, 1 Ind. 315, 318 (1848). The Court held that the framers intended that "fines" meant...