In State v. $2,435 in U.S. Currency, the Indiana Supreme Court unanimously held that Article 1, Section 20 of the Indiana Constitution—which guarantees that “[i]n all civil cases, the right of trial by jury shall remain inviolate”—encompasses civil forfeiture actions.[1] To reach this conclusion, the court undertook an in-depth historical review to determine the role of juries in forfeiture actions at the time the Indiana Constitution was adopted.

In this case, police recovered drugs and $2,435 from Alucious Q. Kizer. The state sought to forfeit the money, alleging that it was part of a criminal transaction. Kizer demanded a jury trial, which the trial court decided it would grant. But the Indiana Court of Appeals reversed on interlocutory appeal, concluding that because the forfeiture action was analogous to an equitable action, there was no jury right.[2]

Writing for the court, Justice Christopher Goff observed that the Indiana Constitution “secures the right to a jury trial ‘as it existed at common law’ at the time Indiana adopted its current constitution.”[3] In reaching its conclusion, the court rejected the state’s argument that Kizer was not entitled to a jury trial because the civil forfeiture action was part of a “special statutory procedure” intended to exclude juries.[4] Instead, the court focused on whether the cause of action—or a sufficiently analogous one—existed when the state constitution was adopted. Specifically, the court held:

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.”[5]

The court then proceeded to apply that test. It examined civil forfeiture actions in England and in the American colonies, noting “English law . . . imposed ‘statutory forfeitures of offending objects used in violation of the customs and revenue laws,’” and that these proceedings in England generally involved juries.[6] The same held true in colonial America, at least until Parliament became frustrated with the colonists and “vested concurrent jurisdiction over colonial forfeiture proceedings” in courts that did not use juries.[7] Turning to early America after independence, the court noted statutory forfeiture actions continued to exist, and that “claims involving property seized on land” involved juries.[8]

The court then narrowed its inquiry to Indiana. After a thorough dive into old Indiana statutes and cases, along with other authorities, the court “conclude[d] from this historical survey 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.”[9] The court declined “to distinguish money from other property traditionally subject to in rem forfeiture,” noting that the state sought to forfeit the money because it was an instrumentality in a crime, and “the forfeiture of the instrumentality of a crime falls squarely within the historical tradition of in rem forfeiture.”[10]

Acknowledging the “largely circumstantial” nature of the historical evidence, the court determined that even if this cause of action had not existed in 1851, it had “little trouble” rejecting the state’s argument that the forfeiture was “akin to the equitable disgorgement of illegally obtained profits.”[11] It noted that disgorgement is a form of restitution to a victim, while Indiana’s forfeiture statute sends the money elsewhere. The court also observed that “equitable restitution remedies developed on a distinctly in personam”—rather than an in rem—theory and that courts generally will not use equity to grant relief from a statutory forfeiture.[12]

Ultimately, the court

conclude[d] that the present action for in rem forfeiture of money as the instrument and proceeds of crime is readily analogous to the traditional common-law forfeiture of property used in violation of the law—not to equitable disgorgement. And, in keeping with Indiana’s constitutional guarantee, this is an essentially legal action that triggers the right to trial by jury.[13]

Accordingly, it affirmed the trial court and remanded for a jury trial.[14]


[1] State v. $2,435 in U.S. Currency 220 N.E.3d 542, 558 (Ind. 2023).

[2] Id. at 544–45

[3] Id. at 545 (quoting Songer v. Civitas Bank, 771 N.E.2d 61, 63 (Ind. 2002)).

[4] Id. at 546 (internal quotation marks omitted).

[5] Id. at 548 (quoting Midwest Sec. Life Ins. Co. v. Stroup, 730 N.E.2d 163, 170 (Ind. 2000) (Boehm, J., concurring)).

[6] Id. at 549 (quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974)).

[7] Id. at 549–50.

[8] Id. at 550–51.

[9] Id. at 556.

[10] Id. at 556–57.

[11] Id. at 557.

[12] Id. at 557–58.

[13] Id. at 558.

[14] Id.

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