David, J.
In Indiana, civil forfeiture actions typically proceed under one of two statutes: the general forfeiture statute or the racketeering forfeiture statute. Today, we consider whether the racketeering forfeiture statute permits a court to release, to the defendant, funds seized in a forfeiture action so the defendant can hire counsel in that same action. We hold that it does not. However, we also find that Abbott’s designated evidence regarding the origins of much of the seized cash was sufficient to overcome the State’s motion for summary judgment in this forfeiture action. Finally, we review Abbott’s request for appointed counsel and find, although exceptional circumstances may exist that would otherwise justify appointment of counsel, the trial court did not abuse its discretion by denying Abbott’s request given its finding that Abbott was unlikely to succeed in defense of the forfeiture.
We therefore affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.
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In Indiana, civil forfeiture actions typically proceed under either the general forfeiture statute in Indiana Code chapter 34-24-1, or the Racketeering Forfeiture Statute in Indiana Code chapter 34-24-2. This case primarily involves the Racketeering Forfeiture Statute, under which the State sought summary judgment. As an initial matter, we analyze the trial court’s grant of summary judgment in the State’s favor on whether the funds at issue were used in the course of, intended for, or derived or realized through Abbott’s alleged criminal conduct. We then explore whether the Racketeering Forfeiture Statute permits a court to release the res subject to the forfeiture action to the defendant to hire defense counsel. Lastly, we review the trial court’s denial of Abbott’s request for appointed counsel.
I. Genuine issues of material fact exist as to whether the seized funds were a part of Abbott’s alleged racketeering activity
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In support of summary judgment, the State designated the pleadings in the forfeiture action, an affidavit of the Chief Investigator of the Elkhart County Prosecutor’s Office, and the record from Abbott’s criminal case. Opposing summary judgment, Abbott designated an affidavit stating that the $6,760 in cash that was seized from his pants pocket was “lawfully obtained” and that this money was intended to be used to purchase a motorcycle later that day. Appellant’s App. Vol. II at 33–35. He also submitted W-2 forms showing he was employed prior to his arrest.
We find that Abbott’s designated evidence creates genuine issues of material fact as to whether the res was “derived from,” “realized through,” or “used in the course of” Abbott’s alleged racketeering activity. I.C. § 34-24-2-2. Abbott’s designations, showing lawful income and testimony that much of the seized cash was for a lawful purpose purchasing a motorcycle—create the requisite “conflicting inferences” to “preclude summary judgment.” Hughley, 15 N.E.3d at 1004 n.1 (reversing summary judgment in a forfeiture action, finding a “perfunctory and self-serving” affidavit attesting that seized currency was neither proceeds of nor used in a crime was sufficient to raise a triable issue of fact); see also Sargent, 27 N.E.3d at 732–33 (reversing summary judgment for the State in a forfeiture action, finding the defendant designated sufficient materials to show that the defendant was not “in possession” of the property subject to forfeiture as contemplated by the statute). Accordingly, Abbott’s sworn statements create sufficient factual issues to be resolved at trial.
This does not mean that the State cannot later convince the trier of fact by a preponderance of the evidence that there was a sufficient nexus between the seized money and Abbott’s alleged racketeering activity. See Katner v. State, 655 N.E.2d 345, 349 (Ind. 1995) (requiring the State to show, by a preponderance of the evidence, a nexus between the property sought in forfeiture and an enumerated offense); see also I.C. § 34-24-2-2(d). However, even if Abbott’s affidavit is self-serving, this is enough to defeat a motion for summary judgment under our standard. See Hughley, 15 N.E.3d at 1003. Therefore, summary judgment in the State’s favor regarding the $8,923 in cash was improper.
II. The Racketeering Forfeiture Statute does not authorize a court to release the seized res to the defendant to fund a defense in the forfeiture action.
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We first observe that the plain language of the statute does not expressly permit a court in equity to release the res to the defendant to defend the forfeiture action. However, we also observe that the statute provides no guidance as to what “subject only to order of the court” means. I.C. § 34-24-2-4(c). Accordingly, we find such phrasing to be ambiguous because it is “susceptible to more than one interpretation.” Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001) (quoting In re Lehman, 690 N.E.2d 696, 702 (Ind. 1997)). Therefore, we must determine, give effect to, and implement the legislature’s intent in drafting this provision. ESPN, 62 N.E.3d at 1196.
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We first analyze the statutory context in which “subject only to the order of the court” appears. Subsection 4(a) provides that “[p]roperty subject to forfeiture under this chapter shall be seized by [ ] law enforcement[,]” nondiscretionary language that the seized property is displaced from its original owner. I.C. § 34-24-2-4(a) (emphases added). Black’s Law Dictionary defines a “seizure” as “[t]he act or instance of taking possession of a person or property by legal right or process[.]” Seizure, BLACK’S LAW DICTIONARY (11th ed. 2019). “Seizure” is also defined as “the taking possession of person or property by legal process.” Seizure, MERRIAMWEBSTER, www.merriam-webster.com/dictionary/seizure (last visited Mar. 22, 2022) [https://perma.cc/Y75C-6TY3]. Although title may not pass upon seizure, the term’s definition infers that such property is displaced from the original owner. Therefore, in the context of the Racketeering Forfeiture Statute, we find that “seized” property is generally unavailable to its original owner while it is still “seized.”
Subsection 4(b) then provides instruction for the storage and security of the seized property while the forfeiture action is pending, such as placing the property under seal, removing the property to a place designated by the court, or allowing another authorized agency to take custody of the property. I.C. § 34-24-2-4(b) (emphasis added). Then, Subsection 4(c) provides that the seized property “is not subject to replevin, but is considered to be in the custody of the law enforcement officer making the seizure, subject only to order of the court.” Id. § -4(c) (emphasis added).
The recurring theme in subsections 4(a)–4(c) is the security of the seized property in law enforcement’s custody while the forfeiture action is pending; the statute gives no indication that a court may broadly distribute the seized property through its equitable power, or even return it to the person from whom it was seized. Therefore, in the context of the statute as a whole, we interpret “subject only to order of the court” to refer to the manner and means in which seized property is to be held in law enforcement’s custody during the pendency of the forfeiture action. In other words, we do not find the legislature intended this language to give the court equitable authority to order the seized property released to the defendant to defend the forfeiture action.
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In addition, a court will not exercise its equitable powers if the petitioner has an adequate remedy at law. State ex rel. Hahn v. Howard Circuit Court, 571 N.E.2d 540, 541 (Ind. 1991). Here, there is already an express statutory mechanism for a trial court to permit an indigent individual to obtain civil counsel in forfeiture cases. See infra Part III; see also I.C. § 34-10-1-2. In crafting this civil appointment statute, our General Assembly decided to extend eligibility for civil counsel appointment only to litigants who meet the statutory criteria. We therefore decline to interpret the Racketeering Forfeiture Statute in a manner that would allow applicants to potentially circumvent the more stringent civil appointment requirements in Indiana Code section 34-10-1-2.
“[T]he job of this Court is to interpret, not legislate, the statutes before it[,]” ESPN, 62 N.E.3d at 1200, and “we exercise caution so as not to add words” to a statute where none exist. West, 54 N.E.3d at 353. Therefore, we hold that the Racketeering Forfeiture Statute does not permit the court to order seized funds released to the forfeiture defendant to fund a defense to the forfeiture action.
III. The trial court did not abuse its discretion in denying Abbott’s request for appointed counsel, even if “exceptional circumstances” may have existed.
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We agree with Abbott that his status in relation to this forfeiture action presents the type of “exceptional circumstances” that would allow a court to appoint civil counsel under Indiana Code sections 34-10-1-2(b) and (c). Here, Abbott requested appointed counsel at public expense, asserting that he was incarcerated, indigent, and lacked the means to hire counsel. He also asserted that this forfeiture action was “complex” and that his only source of income was $24 per month for “working at [his] institutional job assignment or for going to school” at the correctional facility. Appellant’s App. Vol. II at 59–61. And while Abbott was attempting to defend the forfeiture action from prison, the trial court admonished him several times for failing to follow proper procedures and advised him to “seek the advice of an attorney.” Id. at 8, 59-60. Accordingly, in light of the trial court’s multiple admonishments and Abbott’s indigent and incarcerated status in relation to the “quasi-criminal” nature of this civil forfeiture action, we find that exceptional circumstances do exist on this record which would justify appointment of civil counsel under Indiana Code section 34-10-1-2(b)(2). [Footnote omitted.]
However, our analysis does not stop there. The trial court denied Abbott’s request for counsel under Indiana Code section 34-10-1-2(d), which plainly states that the “court shall deny” the request for counsel if it determines the “applicant is unlikely to prevail on the applicant’s claim or defense.” [Footnote omitted.] Indiana case law “presumptively treats ‘shall’ as mandatory . . . ‘unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning.’” Sholes, 760 N.E.2d at 159 (quoting Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 947 (Ind. 1999)).
Here, the trial court specifically found that Abbott’s “likelihood of prevailing on the merits is slim based on the evidence before the court[.]”…
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Conclusion
We reverse the grant of summary judgment in the State’s favor regarding the $8,923 in cash. We also hold that the Racketeering Forfeiture Statute does not permit the court to release the res subject to forfeiture to the defendant to mount a defense to the forfeiture action. Finally, we affirm the denial of Abbott’s request for appointed counsel. We therefore remand this case for further proceedings consistent with this opinion.
Massa, Slaughter, and Goff, JJ., concur.
Rush, C.J., concurs in part and dissents in part with separate opinion.
Rush, C.J., concurring in part and dissenting in part.
I concur with the majority’s interpretation of Indiana’s racketeering forfeiture statute and its determination that the State is not entitled to summary judgment. However, I respectfully dissent from the majority’s holding that the trial court did not abuse its discretion in denying Abbott’s request for appointed counsel.
To qualify for appointed counsel in a civil proceeding, applicants must be (1) indigent and (2) without sufficient means to defend or prosecute the action. Ind. Code §§ 34-10-1-1, -2(b). Upon satisfying these conditions, the trial court may then appoint counsel “under exceptional circumstances.” Id. § -2(b)(2). But if the trial court determines that the applicant is “unlikely to prevail on [their] claim or defense,” the court must deny the request. Id. § -2(d)(2).
As the majority thoughtfully acknowledges, this case presents a host of “exceptional circumstances” that support the appointment of counsel. Ante, at 14. In my view, these same circumstances—along with others— must be considered in determining whether the trial court abused its discretion in concluding that Abbott’s “likelihood of prevailing on the merits is slim.” And after considering the exceptional circumstances in this case, the quintessentially unique features of in rem forfeiture proceedings, and the fact that Abbott’s defense possesses enough merit to proceed to trial, I am led to one conclusion: denying Abbott’s request for counsel is clearly against the logic and effect of the facts and circumstances before the trial court.
I. The trial court’s denial of counsel, premised on its merits determination, was an abuse of discretion.
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A. Unique characteristics of in rem forfeiture actions constrain Abbott’s ability to show a likelihood of prevailing in his defense.
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B. Abbott’s defense, which survives summary judgment, undermines the trial court’s merits determination.
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II. The trial court’s alternative reasons for denying counsel do not withstand even deferential review.
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