*1 and matters in mitigation, extenuation, or
aggravation. (1995), Ind., In re Shumate
N.E.2d 321.
Misappropriation of client funds grave is a
transgression. It demonstrates a conscious accomplish
desire to act, an unlawful denotes
a lack virtually personal all characteristics important
we deem practice, to law threatens bring significant misfortune on the unsus-
pecting client severely impugns the in-
tegrity profession. of the The American Bar
Association's Standards Imposing Law- yer provide Sanctions that where an attor-
ney knowingly converts client funds where
harm client, is done to the appropriate
sanction is Standards, disbarment. ABA 4.1, Standards 5.11. We note further
pursuant 28(2)(b), Admis.Dise.R. very suspension
fact of or disbarment of an attor-
ney by proper authorities another
state constitutes grounds sufficient for dis- suspension
barment or attorney in this
state.
Based on the considerations, above we con-
clude that the respondent given should be
the most disciplinary severe sanction avail- is,
able to this Court. It therefore, ordered respondent,
that the Hill, William S. is here-
by disbarred. The Clerk of this Court
directed to strike his name from the Roll of
Attorneys.
Costs of this proceeding are assessed
against respondent. KATNER,
Simon Appellant
(Defendant Below),
v. Indiana,
STATE of Appellee
(Plaintiff Below).
No. 49S05-9503-CV-00348.
Supreme Court of Indiana.
Sept. 1995. *2 McClure, Kammen, & McClure
Richard Kammen, appellant. Indianapolis, for General, Carter, Attorney Preston Pamela General, Black, Attorney Office Deputy W. ap- General, Indianapolis, Attorney pellee.
ON
PETITION TO TRANSFER
11(B)(8),
expressly
adopt
and incorporate
by reference the decision of the Court of
SELBY, Justice.
Katner,
Appeals in
clarify
Caudill v.
are called
We
to determine whether
State.
Indiana's forfeiture
Ind.Code
34-
*3
(West 1991), requires
4A-30.1-1
the State to
DISCUSSION
demonstrate
property
nexus between
sought by
1981,
State
forfeiture and an
In
Legislature
the Indiana
enacted
§
Indiana Code
permitting
34-4-30.1-1
underlying drug
offense. We conclude that
requires
forfeiture of vehicles
grant
statute
such a nexus
connected with
and
stolen
property,
transfer
converted
apparent
order to resolve an
in
as well as vehicles used
consistency
(1993),
types
illegal
in other
activity.
Legis-
between Caudill v.
of
State
Ind.App.,
FACTS traceable to or have illegal drug facilitated operation[s]." at 31, 1992, Presently, Caudill 485. January On stop after a traffic among types the various of and a violent forfeiture for police, altercation with Simon which provides, 34-4-30.1-1 may the State Katner was arrested. Law enforcement offi- cers, seek forfeiture transport, of vehicles used to conducting a lawful search incident to possessing, for the illegal drug. of an arrest, Katner's pock- discovered in Katner's Additionally, our provides forfeiture statute et a container which held cocaine residue. that the State array seize a broad possession Based on Katner's of this less- personal property and if property real that cocaine, than gram of one the State Jooth has been used to illegal drug facilitate activi- filed a complaint civil for forfeiture of the ty. Toyota 1987 driving which Katner was at the time his arrest. The trial court entered Forfeiture actions have characteris judgment for the State and ordered Katner's actions; tics of both civil and criminal howev Toyota Indianapolis to be forfeited to the er, properly forfeiture is classified as civilin Department. Police Although nature. punitive "both and remedi sought Katner then relief in the Court of goals may al by penalties" be served criminal Appeals. Appeals, The Court of in a well true, proceed converse is also "that civil opinion, reasoned judgment reversed the ings may punitive advance and remedial (1994), the trial court. Katner v. State Ind. - goals." (1993), Austin v. United States App., 640 N.E.2d Among 388. the issues U.S, -, -, 2801, 2806, 113 S.Ct. 125 Katner appeal raised was whether the L.Ed.2d 497. Actions for civil required showing statute of a nexus be illegal drugs, designed the context of are property tween the seized and the offense remove, relatively to be a efficient means to upon which the seizure is based. The Court owner, property from its used to further held that the statute illegal trafficking drugs. Caudill at 436. State to show such a nexus. significant potentially Because of its and se transfer, petitioned function,
The State punitive might vere one assume arguing requirement that this nexus conflicts that a forfeiture action is criminal in nature. (1998), with Caudill v. Ind.App., State 613 Forfeiture is, however, actually a civil action. Caudill, Caudill, Serving N.E.2d at 437. Ap more N.E.2d 433. In peals construed this same punitive purpose, forfeiture statute than a pro civil forfeiture permit of a ceedings forfeiture vehicle a show legislative advance diverse inter ing only that an individual was in punishing deterring ests-while those driving of cocaine while engaged vehicle. Caudill who in illegal drug activity, have at 438. In apparent order to resolve the simultaneously advances other decisions, conflict grant between these non-punitive, legislative goals. remedial Ind.Appellate transfer. Pursuant Rule First, forfeiture creates an economic disin- mit, ... to commit illegal acts. It engage in future centive to following: significant, albeit second another also serves Leg advances our ary, purpose. Forfeiture by per taxation to minimize intent
islature's agencies, (vi) via the mitting law enforcement possession of cocaine. seized, defray of the some sale of Id. against in the battle expense incurred language, determine whether this We must 436-437. It is these
dealing. at Caudill permits of vehicles used to support which seizure which characteristics broad remedial pur- transport "for the that for a controlled substance determination Appeals' our Court ... pose committing, attemptingl,] or con- in nature. are civil feiture actions cocaine, possess requires the spiring" to is, however, totally not *4 Forfeiture of a relation- State to show the existence law. The statute from the criminal divorced sought property ship-a nexus-between the occurs, that, forfeiture the requires before offense, underlying here in forfeiture and the property that the State must demonstrate possession. cocaine used to facilitate the sought in forfeiture was following: a con transportation of one of the faced with Federal courts have been substance, 34-4-30.1-1 See. trolled construing question a when the feder similar 1(a)(1)(B); property, See. stolen or converted statute, § al 21 881. This forfeiture U.S.C. waste, 1(a)(1)(C); all illegal or hazardous See. permits forfeiture a federal statute note, of which criminal activities We are "in demonstration that a vehicle was used however, underlying on the that a conviction any transportation, manner to facilitate the activity prerequisite criminal is not a sale, receipt, possession, of or concealment only show that The need forfeiture. State property" including controlled sub "[all "by pre a supporting forfeiture exist facts manufactured, dis stances which. have been at 436. ponderance the evidence." Caudill of tributed, dispensed, acquired or in violation" apply civil Legislature's intent to the The Act, 21 of the Controlled Substance U.S.C. proceedings proof in forfeiture is burden of (1988). construing § In fed 812 this 34-4-30.1-4, part § states in evident in which that, eral courts have determined in order for hearing, prosecuting the [forfeiture] the "Talt succeed, govern a forfeiture action to the attorney by preponderance a must show of ment must show a nexus between the use of property was within the the evidence that the property sought the in forfeiture and the subject un property to seizure definition of are, course, activity. underlying drug We chap 1 of this [IC 34-4-80.1-1] der section by analysis of not bound the federal courts' added.) (Emphasis ter." statute; however, we find the the federal relationship in this case the We examine analysis helpful construing in is our own necessary prerequisites between two factual forfeiture statute. connection be- to a forfeiture action: purpose for tween a vehicle's use and the The United States' Seventh Circuit above, Title 34-4- which it is used. As noted Court of reviewed the nexus re property 30.1-1 forfeiture of used authorizes quirement in U.S. v. Real Estate Known as nar- possession to of certain listed facilitate (ith Cir.1990), Douglas Avenue 903 F.2d in provides cotiecs. That relevant section that 490. The Seventh Circuit determined part: "'[a) required not substantial connection' is (a) following be seized: property related between the and the (1) (as 35-41-1), by All IC vehicles defined property under the offense for forfeiture" of by they if are used or intended for use "Instead, gov forfeiture statute. federal person possession in to persons them only ernment must demonstrate that the nex any facilitate the transport or in manner to property sought forfeiture [between us following: transportation of the than underlying and the is more offense] (A) at pur- incidental or fortuitous." Id. 494. Our A controlled substance for the statute, similarly, requires more than an inci- pose committing, attempting to com- ture, dental or fortuitous connection between the and that the State did not demonstrate property underlying and the offense. such a nexus in Katner's case. "While the presence of the cocaine glass residue In order to assure that an ade support pos- tube was sufficient to Katner's quate property nexus exists between the conviction, possession session of the sub- sought underlying and the of stance in his automobile did not constitute fense, we hold that the State bears the bur "transportation" of cocaine for the demonstrating, by preponderance den of a 390, (em- possessing drug." Katner at evidence, property this nexus: that the phasis original.) sought pur forfeiture was used "for the pose commit, committing, attempting CONCLUSION commit" an enumerated offense §
under 34-4-80.1-1. This nexus best artic might Caudill suggest be read to that ulates proof the threshold of that the State mere illegal of an substance and must succeeding achieve before in a forfei simultaneous use of a vehicle are sufficient to action, congruent $ ture and is with 34-4- support forfeiture. Caudill at 438. is This prosecutor 30.1-4 which at the an incorrect statement the law. Katner show, hearing by preponder properly identifies the statute's nexus re evidence, subject ance of the quirement; therefore, adopt to forfeiture under 34-4-80.1-1. The Appeals' Katner decision. *5 Ap The Court of Indiana forfeiture statute more than peals is affirmed. a mere oper demonstration that the vehicle's possessed Rather, ator cocaine. under the SHEPARD, C.J., and DeBRULER and portion of our statute which we examine to DICKSON, JJ., concur. day, the State must operator show that the SULLIVAN, J., opinion. dissents (1) with
used transport the vehicle to an illicit (2) substance or item in listed for SULLIVAN, Justice, dissenting. purpose committing possession, at unduly While we find it harsh to tempting possession, to commit or subject a driver with a small amount of co- possess the substance or item. The see- pocket caine in his to forfeiture of his auto- limitation, requiring ond the State to show mobile, clearly I believe that is what transportation specific purpose, serves legislature presence has authorized. The function, important an avoiding i.e. in pocket cocaine Mr. Katner's constitut- operator where the coincidentally of a vehicle ed the commission of residue, Possession Cocaine possesses drug transport but is not driving residue, his automobile under ing such using any the vehicle in cireumstances therefore constituted the use way other conspiracy to further transportation the vehicle to facilitate possess. of cocaine for possessing it. requirement This nexus is a means such, As forfeiture is available. Ind.Code guarantee government seizing 34-4-830.1-1(a)(1)(A)(vi). actual ilegal drug instruments of the trade. I affirm would the trial court's forfeiture language The of the statute is directed to order this case for the reasons set forth activity, ward instruments of this illicit Judge Sharpnack's Chief dissenting opinion hopes retarding, through asset in this case in Appeals. See expanding drug Depriving per commerce. (1994), Ind.App., Katner v. State 640 N.E.2d sons of their such as vehicles unre C.J., (Sharpnack, dissenting). lated to the trade will do little to ad Legislature's vance our intent. correctly Court Katner clearly
determined that "the statute contem-
plates a connection or 'nexus'" between the possessing
act of the contraband and the use
of the vehicle which the State seeks forfei-