Bailey, J.
The State filed a civil forfeiture action concerning four firearms and more than $9,000 in cash found at the residence of Terry L. Abbott (“Abbott”) during the execution of a search warrant. The bulk of the cash—$6,760—was found on Abbott’s person, in the pocket of his pants. Abbott claimed that he lawfully obtained the cash in his pocket and that he possessed the cash on his person because he intended to purchase a motorcycle on the day of the search. Abbott initially hired a lawyer. However, without access to the cash, Abbott could not pay legal fees and the court allowed Abbott’s lawyer to withdraw. Abbott then requested the appointment of counsel at public expense. The court denied the request, determining that Abbott was ineligible under the pertinent statutes. Even though there were thousands of dollars in seized funds available to hire a lawyer, Abbott was unrepresented for the remainder of the proceedings.
The State sought summary judgment, designating evidence that Abbott was engaged in drug dealing. Although Abbott disclaimed interest in the firearms and $11 of the cash, Abbott designated evidence showing a lawful source of the cash in his pocket and a lawful intended use for that cash. Despite Abbott’s designated evidence regarding the bulk of the res, the court granted summary judgment to the State. Abbott then pursued this appeal pro se. In doing so, Abbott alleged that he was indigent and he unsuccessfully sought a transcript at public expense. On appeal, Abbott argues that the court erred in granting summary judgment. Abbott also asserts that the trial court improperly denied his request for appointed counsel.
Because there are material issues of fact regarding a nexus between the seized cash and criminal activity, we conclude that the trial court erred in granting summary judgment as to the bulk of the cash. Turning to Abbott’s request for appointed counsel, we conclude that Abbott failed to show his entitlement to counsel at public expense. However, under the circumstances—where the bulk of the res was removed from Abbott’s pocket and he made a plausible claim to that cash—we conclude that Abbott should be permitted to use the res to pay for a lawyer, a transcript, and other expenses for his defense. We ultimately affirm summary judgment as to all property other than $8,923 in cash. We otherwise reverse and remand for further proceedings consistent with this opinion.
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Ultimately, Abbott’s affidavit created a genuine issue of material fact as to the State’s entitlement to the res. We therefore conclude that the trial court improperly granted summary judgment and we reverse and remand for further proceedings regarding the res. In so concluding, we note that forfeitures are not favored and should be enforced only when within the letter and the spirit of the law. Hughley, 15 N.E.3d at 1005. We further note that “[e]nsuring that parties are not prematurely denied their day in court is always important, but it is especially vital before exacting criminal-like penalties” through civil forfeiture. Id. We therefore express concern that the trial court characterized the State’s designated evidence as “overwhelming.” Appellant’s App. Vol. 2 at 27. We remind courts that “weighing [evidence]—no matter how decisively the scales may seem to tip—[is] a matter for trial, not summary judgment.” Hughley, 15 N.E.3d at 1005-06. Moreover, we also remind courts that the non-movant may avoid summary judgment through as little as a self-serving affidavit, “regardless of whether [the non-movant] would likely prevail at trial.” Id. at 1002.
Having concluded that further proceedings are required, we turn to Abbott’s contention that the court erred by denying his request for appointed counsel. “[F]orfeitures are civil actions,” Hughley, 15 N.E.3d at 1005, and there is generally no absolute right to appointed counsel in a civil action, In re G.P., 4 N.E.3d 1158, 1163-64 (Ind. 2014); see Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 26-27 (1981) (noting that principles of due process generally afford a litigant the right to appointed counsel “only when, if he loses, he may be deprived of his physical liberty”). Even when a litigant does not have an absolute right to appointed counsel, Indiana Code Section 34-10-1-1 provides that an indigent person “may apply to the court . . . for leave to prosecute or defend as an indigent person.” If the court is satisfied that the person does not have sufficient means to prosecute or defend the action, the court: “(1) shall admit the applicant to prosecute or defend as an indigent person; and (2) may, under exceptional circumstances, assign an attorney to defend or prosecute the cause.” Ind. Code § 34-10-1-2(b). In determining whether to appoint counsel, “[t]he factors that a court may consider” include “(1) [t]he likelihood of the applicant prevailing on the merits of the applicant’s claim or defense[; and] (2) [t]he applicant’s ability to investigate and present the applicant’s claims or defenses without an attorney, given the type and complexity of the facts and legal issues in the action.” I.C § 34-10-1-2(c). Moreover, Indiana Code Section 34-10-1-2(d) specifies that the court “shall deny” the application for appointed counsel if the court determines that “[t]he applicant is unlikely to prevail on the applicant’s claim or defense.”
Here, Abbott applied for counsel under the foregoing statutes and the court denied Abbott’s request. In reviewing the request, the court analyzed Abbott’s likelihood of success on the merits. Yet, before ever analyzing a person’s likelihood of a success, the court must first be “satisfied that [the] person . . . does not have sufficient means to . . . defend the action[.]” I.C. § 34-10-1-2(b). Indeed, this means-based inquiry precedes any other analysis. That makes sense, because our civil-appointment statutes are designed to help those who need help—not to give a free defense to someone who has the means to pay for one. Thus, if a person has the means, there is no need for any further inquiry.
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Here, Abbott raised a plausible defense to forfeiture, asserting that the bulk of the res was untainted. We recognize that the State has a conditional interest in Abbott’s cash, i.e., an interest that turns on whether it prevails in the action. At the same time, the cash is still Abbott’s. We therefore agree with the trial court that Abbott is not entitled to counsel at public expense—not because Abbott is unlikely to prevail, but because Abbott has the means to fund his own defense. See Sholes v. Sholes, 760 N.E.2d 156, 161 (Ind. 2001) (explaining that an indigency determination under Indiana Code Section 34-10-1-2 involves consideration of a person’s disposable income “or other resources reasonably available to him” (quoting Moore v. State, 401 N.E.2d 676, 679 (Ind. 1980)); see also Sabo v. Sabo, 812 N.E.2d 238, 243 (Ind. Ct. App. 2004) (adhering to Sholes).
When examining these statutory purposes, it becomes evident just how peculiar it would be to exclude seized property from an indigency analysis in the context of forfeiture. Notably, excluding the res from an indigency analysis would work a windfall for the defendant who has a high likelihood of success, is appointed counsel, and then enjoys a defense at public expense. Indeed, this scenario does not work justice in the way intended by our civil-appointment statutes.
Moreover, because the State has an interest in private property only insofar as that property has a nexus to criminal activity, we cannot say that the State would be harmed by allowing a person to use the res for the limited purpose of funding a defense. Allowing this limited use (1) levels the playing field and (2) ensures that private property is not needlessly and unjustly forfeited to the State. Furthermore, allowing use of the res to fund a defense comports with Article 1, Section 12 of the Indiana Constitution, which mandates that “every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law” and that “[j]ustice shall be administered freely, and without purchase; completely, and without denial[.]” Cf. Smith v. Ind. Dep’t of Correction, 883 N.E.2d 802, 807-810 (Ind. 2008) (determining that a statute ran afoul of Article 1, Section 12 by prohibiting inmates from filing new claims); Campbell v. State, 96 N.E.2d 876, 878 (1951) (identifying a violation of Article 1, Section 12 where a criminal defendant was convicted and sentenced without advisements regarding the right to counsel, including the right to appointed counsel upon proof of indigency); Murfitt v. Murfitt, 809 N.E.2d 332, 334-35 (Ind. Ct. App. 2004) (determining that Article 1, Section 12 guarantees an inmate the opportunity to defend his interests in a civil action).
Additionally, allowing use of the res would advance the interests of justice in the scenario described above. That is, allowing use of the res would preserve public resources for those who truly lack the means and avoid allocation of resources to those who only lack the means because of the State’s seizure…Further, allowing the owner to use the res to procure representation in the forfeiture action ensures both sides will be represented by trained counsel.
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We ultimately find no statute precluding a court from (1) considering the res when examining a person’s means or (2) allowing use of the res for the limited purpose of funding a defense to forfeiture. Not only do we discern no statutory impediment here, allowing use of the res harmonizes the pertinent statutes and is consistent with Indiana law. Indeed, it is especially notable that Indiana Code Section 34-24-2-4(c), which applies to this appeal, expressly provides that the res “is considered to be in the custody of [law enforcement], subject only to order of the court.” Allowing use of the res is such an order of the court.
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Ultimately, in light of the parties’ competing interests in the res and in view of Appellate Rule 66(C)(10), which permits us to grant “any . . . appropriate relief,” we conclude that a defendant in a civil forfeiture proceeding is not excluded from using the res to retain counsel, purchase a transcript if needed, and pay for other reasonable expenses associated with preparing a defense. Cf. Luis, 136 S. Ct. at 1088 (determining that the restraint of untainted funds violated the Sixth Amendment where a criminal defendant needed those funds to hire chosen counsel to defend against criminal charges). Thus, on remand, we instruct the court to allow Abbott to use the res for these limited purposes. Cf. I.C. § 34-24-2-4(c) (providing that the res “is considered to be in the custody of the . . . officer making the seizure . . . subject only to order of the court”).
For the foregoing reasons, we affirm summary judgment as to all items other than $8,923 of the seized cash. Because there is a genuine issue of material fact precluding summary judgment as to that cash, we otherwise reverse and remand for further proceedings. As to the proceedings, Abbott is not entitled to counsel at public expense because he has the means to fund his own defense. On remand, we instruct the court to allow Abbott to use the res for defense related expenses. Moreover, because the trial court in this civil proceeding is in the best position to reconcile the equities between competing claims, we instruct the court to adopt reasonable procedures to supervise expenditures from the res.
Affirmed in part, reversed in part, and remanded for further proceedings.
Weissmann, J., concurs.
Vaidik, J., concurs in part and dissents in part with separate opinion.
Vaidik, Judge, concurring in part, dissenting in part.
I concur with the majority that the trial court erred in granting summary judgment because there are material facts at issue. But I respectfully dissent from my colleagues’ determination Abbott should be able to use the seized cash to pay for an attorney in the civil-forfeiture proceeding.
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…[T]he forfeiture statutes do not allow the use of seized property to pay for an attorney during the pendency of the appeal. The majority attempts to circumvent the forfeiture statute by claiming equity demands the inclusion and use of the seized property when making an indigency determination under the civil-appointment statute. There are two flaws in this reasoning. First, equity cannot be used by the judiciary to bypass inconvenient statutes. Nor can equity supersede otherwise constitutional statutes. See State ex rel. Root v. Circuit Court of Allen Cnty., 259 Ind. 500, 289 N.E.2d 503, 506 (1972) (“[T]he Legislature may constitutionally prevent a court from exercising its equity jurisdiction as long as it does not prevent parties from obtaining due process in the proceedings created by statute.”). The demanding analysis of whether the forfeiture statutes are unconstitutional or unconstitutional as applied to a particular defendant must take place in a case where the issue is properly raised.
Second, equity is only available when there is no adequate remedy at law…Indigent defendants like Abbott have a remedy at law—the civil-appointment statute. Although the forfeiture statutes do not permit an indigency determination to consider the seized property, defendants like Abbott can still obtain relief under the civil-appointment statute if they satisfy the conditions of the statute. But in this case, the trial court found Abbott failed to show he met the conditions. If the majority disagrees with this trial-court finding, it should say so.
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Finally, I am also concerned that this issue—which has far-reaching consequences—was addressed sua sponte. Neither party argued this issue in the trial court or on appeal, nor were they given an opportunity to submit supplemental briefing on the issue. As the United States Supreme Court recently reiterated, courts are “passive instruments” who “do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties.” United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (quotation and brackets omitted). Especially in a case such as this, with vast consequences to the future of forfeiture law, we should address only the questions presented to us or at least allow the parties the opportunity to advocate on this issue.