PETITIONER APPEARING PRO SE:    ATTORNEYS FOR RESPONDENT:
MARVIN L. SECOR    STEVE CARTER
Carlisle, IN     ATTORNEY GENERAL OF INDIANA
    Indianapolis, IN
    
     DAVID A. ARTHUR
    DEPUTY ATTORNEY GENERAL
    Indianapolis, IN
_____________________________________________________________________

    IN THE INDIANA TAX COURT _____________________________________________________________________ 

MARVIN L. SECOR,                                                                   )
                                                                                        )
    Petitioner,                                                                         )
                                                                                        )
    v.                                                                                  )   Cause No. 49T10-9905-TA-126
                                                                                        )
INDIANA DEPARTMENT OF STATE REVENUE                                                     )
and THOMAS G. FISHER, Judge,                                                            )
                                                                                        )
    Respondents.                                                                        )    


                                                                                     ______________________________________________________________________________
RULING ON MOTION FOR RELIEF FROM JUDGMENT

______________________________________________________________________________

NOT FOR PUBLICATION
April 18, 2002

MCMAHON, Special J. See footnote

    Marvin L. Secor (Secor) has moved for relief from this Court’s judgment affirming the Department of State Revenue’s (Department) finding that he owes controlled substance excise tax (CSET). Secor has requested that the Court provide counsel to represent him.
    The request for appointment of counsel and the motion for relief from judgment are DENIED.
FACTS AND PROCEDURAL HISTORY

The initial history of this case is summarized in Judge Fisher’s June 13, 2002 opinion on Secor’s appeal of the CSET:
The facts appear to be undisputed. [Footnote omitted.] On September 27, 1993, Secor was criminally charged with the crime of cultivation of marijuana before the Washington Circuit Court. Secor pled guilty to the above charge on December 15, 1994 and was sentenced on April 19, 1995, to a term of two years in prison. See id. at 16. One year prior to Secor’s plea of guilty, on December 15, 1993, the Department issued a Jeopardy Finding, Jeopardy Assessment and Notice Demand along with tax warrants that were issued to the Sheriff and Clerk of Washington County, Indiana. (Resp’t Answer to Amended petition at ¶1(a).) The CSET assessment was based upon Secor’s possession of approximately 707 grams of marijuana and 0.4 grams of a Schedule II controlled substance. [Footnote omitted.] The Department assessed Secor a total of $59,592.00, which includes a statutory penalty, for possessing the controlled substances. See id. at ¶1(b). On December 29, 1993, Secor timely filed a protest of the CSET assessment with the Department. The Department granted a hearing, which was conducted on February 12, 1999. On February 17, 1999, the Department issued its Letter of Findings regarding Secor’s CSET assessment. The Department denied Secor’s protest. Unsatisfied with the Department’s findings, Secor filed an original tax appeal in this Court on May 19, 1999. On January 24, 2000, with all parties present, this Court held a trial on the matter. . . .

Secor v. Department of State Revenue, Slip Opinion at 2-3 (June 13, 2000) (hereafter “CSET Opinion”).
    Following Judge Fisher’s CSET Opinion, Secor filed a motion for rehearing which Judge Fisher denied July 7, 2000. Secor’s petition for review by the Indiana Supreme Court was denied January 11, 2001. Secor’s petition for writ of certiorari from the United States Supreme Court was denied April 24, 2001.
    On October 10, 2001, Secor filed the motion now at issue, titled as “Motion Pursuant to Rule 59(E) Alter or Amend a Judgment and Rule 60(b)(4) Relief for Other Reason – Void Judgment.” On October 30, 2001, Secor moved for an evidentiary hearing and for transportation from the Indiana Department of Corrections Wabash Valley Correctional Facility. On November 6, 2001, Secor filed a motion for the appointment of counsel in which he invoked as authority the Sixth Amendment of the United States Constitution and the statutory right to counsel in Indiana Code §§ 34-10-1-1 and –2. To this motion for appointment of counsel Secor attached a sworn statement by a Wabash Valley Correctional Facility Counselor that Secor “has had an average monthly deposit of $10.00 in his Offender Trust Account.” See footnote

ANALYSIS AND OPINION
Motion Is for Trial Rule 60(B) Relief

    Secor invokes Federal Trial Rule 59(E) for altering or amending a judgment as one remedial basis for his motion. The Federal Trial Rules do not apply in Indiana state courts. Consequently, Federal Trial Rule 59 is no basis for relief from the judgment on Secor’s CSET appeal.
    The only remedial measure available at this point for Secor is Indiana Trial Rule 60, which he has invoked in his motion. Accordingly, the Court considers his motion as one for relief from judgment under Indiana Trial Rule 60(B).
Hearing is Not Required


    “Oral hearings will be conducted on motions in the discretion of the Court . . . .” Indiana Tax Court Rule 2 (D).
The mandatory provision of 60(D) as to a hearing . . . is restricted to ‘pertinent evidence’. If therefore, there is no evidence which could be pertinent to the allegations of the motion because such allegations, even if true, would not warrant the relief sought, a hearing would be a futile proceeding.

Public Serv. Comm’n v. Schaller, 157 Ind. App. 125, 299 N.E.2d 625 (1973).

Secor has alleged no newly discovered evidence or issues of fact. No hearing is required for his motion. See footnote

Counsel Request – Sixth Amendment

    The first authority cited by Secor in support of his request for counsel, the Sixth Amendment to the United States Constitution, does not apply to a motion for relief from judgment following a direct appeal. Even if, for the sake of argument only, the Court assumes that a CSET Tax Court proceeding could be considered a “criminal prosecution,” See footnote as that term is used in the Sixth Amendment, the “criminal prosecution” does not include a post-appeal “collateral relief” remedy such as Secor’s motion for relief from judgment. Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545-46 (1987) (“[w]e have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, [citation omitted], and we decline to so hold today”).
Counsel Request - Statutory Right

    Secor also invokes the Indiana Code §§ 34-10-1-1 and –2 provision for appointment of counsel for an indigent person. In his motion, he cited the Court of Appeals opinion in Sholes v. Sholes, 732 N.E.2d 1252 (Ind. Ct. App. 2000).
    Since the motion was filed, the Indiana Supreme Court has issued its own opinion in the Sholes case, vacating the Court of Appeals opinion. Sholes v. Sholes, 760 N.E.2d 156 (Ind. 2001). See footnote
    In Sholes, the court made the following holding on Indiana Code §§ 34-10-1-1 and –2:
We hold: (1) appointment of counsel under the statute is mandatory; (2) counsel appointed under the statute must be compensated; and (3) Indiana Trial Rule 60.5 gives trial courts the power to order payment of appointed counsel, but (4) the same considerations governing other court-mandated funding apply in determining whether mandate is appropriate, and (5) counsel for whom mandate of compensation is not appropriate under Trial Rule 60.5 cannot constitutionally be appointed under the statute. In sum, in ruling on an application for appointed counsel in a civil case, the trial court must determine whether the applicant is indigent, and whether the applicant, even if indigent, has means to prosecute or defend the case. If those criteria are met, and there is no funding source or volunteer counsel, the court must determine whether the mandate of expenditure of public funds is appropriate in that case.

Id. at 157.
    This Court has first considered whether a CSET appeal and a motion for relief from judgment in such an appeal are an “action” within the scope of Indiana Code § 34-10-1-1: “An indigent person who does not have sufficient means to prosecute or defend an action may apply to the court in which the action is intended to be brought, or is pending, for leave to prosecute or defend as an indigent person.” Ind. Code § 34-10-1-1 (emphasis added).
    There does not appear to have been a decision by an Indiana appellate court as to how the term “action” in the statute should be construed.
    This Court concludes that “action” as used in the statute was intended to be broadly read to include any proceeding which is to result in a judgment. See State ex rel Bradshaw v. Probate Court of Marion County, 73 N.E.2d 769 (Ind. Ct. App. 1947) (“[i]t has been frequently decided by this court “that an action ‘is any judicial proceeding which, conducted to a termination, will result in a judgment’”). See also Indiana Code § 34-7-4-2 (“[s]tatutes outside IC 34 providing causes of action or procedures include the following: (1) IC 4-21.5-5 (Judicial review of administrative agency actions)”). Cf. Indiana Tax Court Rule 2 (“[i]n the Indiana Tax Court, there shall be one form of action in the nature of a civil action to be known as an ‘original tax appeal’”).
    Thus the Court considers a CSET appeal proceeding to be an “action” within the scope of the statute, and further assumes that a motion for relief from judgment is also properly considered as an extension of that “action.” Cf. Sholes, supra (applies § 34-10-1-2 to Sholes’ motion for relief from judgment). See footnote See also Koehler v. State, 499 N.E.2d 196 (Ind. 1986) (discretion of court to allow criminal defendant who elected to proceed pro se at trial to have counsel in habitual offender proceeding).
    Procedure under Indiana Code § 34-10-1-2 requires that “(1) the litigant is to apply to the trial court for leave to proceed ‘as an indigent person’; and (2) if the trial court finds that the applicant is both indigent and without sufficient means to prosecute or defend the action, the trial court shall appoint counsel for the applicant.” Sholes, 760 N.E.2d at 160.    
Section 34-10-1-1 places the burden upon the party seeking to proceed “as an indigent person” to demonstrate that he or she is indigent and without “sufficient means.” However, section 34-10-1-2 does not require the applicant to make an independent, formal request for appointed counsel. Rather, once the trial court finds that the applicant is indigent and without “sufficient means to prosecute or defend” the action, it must sua sponte appoint counsel.

Id. at 160-61.
    This portion of Sholes appears to require that the Court make some affirmative effort to determine whether Secor is indigent; it is not enough with Secor’s initial request for counsel, the Court concludes, to simply say that Secor has failed to present sufficient evidence, by affidavit or otherwise, to demonstrate indigency.
    The Court does find that the affidavit of the Wabash Valley Correctional Facility counselor, coupled with Secor’s conclusory statement in his request for counsel that he is indigent and without means, do not suffice themselves to demonstrate indigency.
    The insufficiency of the counselor’s affidavit to establish indigence would require the Court either to hold a hearing at which Secor could be questioned about his assets See footnote or, as an alternative, a questionnaire from the Court to Secor requiring answers under oath which would permit a proper assessment of indigence. But, because the Court concludes that the judiciary’s self-imposed limitations on its mandate power will not permit the appointment of counsel, resolution of Secor’s claim of indigency is not required.
    The Court assumes that Secor does not have “sufficient means to prosecute the action.” See footnote A motion for relief from judgment is not the sort of matter “often handled,” at least adequately, “by persons of means without counsel.” Id. at 161.
    Sholes concludes that counsel appointed under Indiana Code § 34-10-1-2 must be compensated and, as there is no funding provided for the compensation, a court must decide whether use of its inherent power to mandate funds is appropriate in a case in which the § 34-10-1-2 right obtains. Trial Rule 60.5, the mandate authority considered in Sholes applies to courts with operations funded by the county; it hence does not apply to the Tax Court, which is entirely funded by the state. But the considerations in Trial Rule 60.5 for deciding whether to invoke the inherent power to mandate funds apply to all courts, including those such as the Tax Court to which Trial Rule 60.5 does not directly apply.
    The basic inquiry under this mandate aspect of the Sholes holding is whether Secor has “a colorable bona fide dispute over issues warranting the expense of counsel.” Id. at 166. If Secor does, then “if no pro bono service provider is available, [this Court] would have to consider whether it has the power, under Trial Rule 60.5 [principles], to order payment of counsel, or whether the statutory mandate of section 34-10-1-2 fails in light of overriding considerations that would prevent expenditure of public funds for appointed counsel.” Id.
    The analysis required by Sholes is new and there have been no appellate cases yet to suggest how this Court is now to determine whether the motion for relief from judgment raises “a colorable bona fide dispute over issues warranting the expense of counsel.”
    But, whatever the standard turns out to be, the Court concludes that Secor’s motion itself does not meet it. It is not appropriate to appoint counsel, and also not required that the Court attempt to find pro bono counsel, to assist with this motion for relief from judgment which, as is elaborated on hereafter, does no more than disagree with the original decision and the determination on direct appeal not to disturb it, makes assertions of law which are in plain conflict with existing Indiana decisions, and raises other arguments which simply have no merit.
The Motion Presents No Basis for Rule 60(B) Relief


    Secor seeks relief under Rule 69(B)(1)’s “mistake, surprise, or excusable neglect” provision, but he cannot prevail on that basis. Secor made no mistake, was not surprised, and did not “neglect” any matter raised by his CSET appeal. He may have failed to raise some matters due to his lack of legal acumen, but that is not what Rule 60(B)(1) considers an appropriate source of “mistake, surprise, or excusable neglect,” whether the litigant was pro se or was represented by counsel who simply turned in a poor performance. See footnote
    Secor also asserts that Rule 60(B)(6)’s provision for relief from a “void” judgment. Clearly no relief can obtain on this basis. This Court’s judgment in the appeal is not “void” as used in Trial Rule 60(B)(6). See footnote There is no question that the Court had jurisdiction over both the subject matter and Secor’s person.
    None of the substantive bases in the motion warrant relief under the Rule. Paragraphs 4, 5, and 7 of the Motion simply repeat the arguments presented to Judge Fisher and in the appeal to the Indiana Supreme Court that the procedure by which the CSET was assessed and imposed violates the Fifth Amendment protection against Double Jeopardy, because jeopardy can attach only after “an administrative hearing or alternative procedures are “compleated [sic] and convened and the factfinder has began [sic] to take evidence.” This is simply an argument that jeopardy should not be held to attach when the jeopardy finding, jeopardy assessment and notice demand are served. But the Indiana Supreme Court has held in Bryant v. State, 660 N.E.2d 290 (Ind. 1995), that jeopardy does attach at that point. Secor’s motion takes the position argued for by Justice Sullivan in his dissent in Bryant, a position which a majority of the Indiana Supreme Court did not accept.
    In paragraph 6 of the motion, Secor also argues that it violates his Double Jeopardy Clause protection for the State to have imposed both a criminal sentence and punishment for possession of marijuana and the CSET. But, as held in the Court’s Opinion on Appeal, the CSET assessment was the first jeopardy, and hence its assessment does not violate the Clause.
    Finally, paragraph 8 of the motion argues that the Court failed to comply with Indiana Code §§ 34-10-1-1 and –2 when it did not appoint counsel for him during the CSET appeal process. The Court held that Secor had failed to prove his indigence, Appeal Opinion at 2, footnote 1, apparently for the same reasons this opinion found his affidavit from the Wabash Valley Correctional Facility counselor does not demonstrate indigence. See supra. This matter has been ruled upon in the CSET Opinion, with review denied by the Indiana Supreme Court, and Secor asserts no facts outside the record which were unavailable on this issue at the time of the appeal to the Indiana Supreme Court. This is not a basis for relief under Rule 60(B).
    The Court notes that Secor did fail in his tax appeal to raise the only arguments which Indiana decisions had not clearly foreclosed against him. These arguments are that the CSET assessed against him violated the protections against excessive fines in the federal Constitution’s Eighth Amendment See footnote and the Indiana Constitution’s Article I, § 16. See footnote These excessive fines issues were before the Indiana Supreme Court in Bryant v. State, supra, but were not addressed due to Bryant’s Double Jeopardy holding. Id. at 295, n. 9.
    These excessive fines claims may well have sufficed to afford a basis for relief for Secor had they been raised in the CSET proceeding. Had Secor been represented by counsel, it is perhaps likely that they would have been raised, given that they were expressly mentioned in Bryant. But there is no convincing basis this Court can find to allow Secor to raise them at this point. They were not “hidden” at the time Secor’s CSET appeal was filed – Bryant which noted them was decided a year before his CSET proceeding commenced. And it appears to this Court that the only excuse for their not having been raised in the CSET proceeding for Judge Fisher to rule on was Secor’s lack of representation by counsel. And Secor asserted the statutory right to counsel he had, but Judge Fisher held expressly that Secor had failed to establish his entitlement, and the Indiana Supreme Court refused to review Secor’s assertion in his petition to that Court that Judge Fisher had erred in not providing counsel. Under these circumstances, this Judge concludes that there is no apparent basis on which his waiver of the excessive fines issues can be excused.
CONCLUSION

    The issues raised in the motion were expressly decided against Secor by this Court in his CSET appeal, were raised by Secor in his petition for review by the Indiana Supreme Court, and were not accepted by the Indiana Supreme Court as grounds for reversing this Court’s denial of his appeal. Under caselaw, the motion is plainly subject to denial without any hearing.    
    The only issue this Court can discern which might have afforded a basis for Trial Rule 60(B) relief – the decision not to appoint counsel for Secor in the CSET proceeding – was fully presented in the petition for review denied by the Indiana Supreme Court. Secor has not alleged any newly discovered evidence on this issue, and it does not appear to this Court that there is any evidence of that kind to justify the appointment of counsel now.
    Accordingly, the motion for relief from judgment and the request for counsel on the motion are DENIED.

Footnote: By order of the Indiana Supreme Court, Michael J. McMahon was appointed special judge on November 13, 2001. See Secor v. Indiana Dep’t of State Revenue and Thomas G. Fisher, Judge, No. 49S00-0111-SJ-577 (Ind. Nov. 13, 2001) (order appointing special judge).
Footnote: Because Secor’s motion for relief from judgment named Judge Fisher as a defendant, and because Secor had made a complaint against Judge Fisher to the Indiana Judicial Nominating Commission (the complaint was found to be without merit), and because Secor had filed suit against Judge Fisher in the United States District Court for the Southern District of Indiana (the suit was summarily dismissed), Judge Fisher was obliged to recuse himself from this case on October 26, 2001. By order of the Indiana Supreme Court, Michael J. McMahon was appointed special judge November 13, 2001 and qualified as special judge by oath November 20, 2001 before the Chief Deputy of the Clerk of the Indiana Supreme Court, who also, pursuant to Indiana Code § 33-3-5-10, is Clerk of the Tax Court.

Footnote: Secor filed a “Motion for Hearing and Order to Transport” October 30, 2001. This motion is denied. The Court notes that the “Order to Transport” would have been beyond its authority. An Indiana state court has “‘no jurisdiction over a prisoner after he has been convicted, sentenced and delivered to prison pursuant to a commitment [citation omitted], and does not have a right to order his return to court even temporarily except in connection with matters relating to the case in which he was sentenced.’” Hill v. Duckworth, 679 N.E.2d 938, 939-40 (Ind. Ct. App. 1997), following and quoting Rogers v. Youngblood, 226 Ind. 165, 78 N.E.2d 663, 665 (1948).

Footnote: Plainly, Indiana does not consider a Tax Court CSET proceeding a criminal prosecution. See Judge Fisher’s conclusion, CSET Opinion, at 2, footnote 1, that Secor had no Sixth Amendment right to counsel in the appeal, which was “borne out of a civil proceeding” and “not subject to the same constitutional requirements” as a criminal prosecution. See also the Indiana Supreme Court holding that the CSET “post-deprivation” appeal process, which applied to Secor’s CSET, complies with Fourteenth Amendment Due Process requirements, Clifft v. Indiana Department of State Revenue, 660 N.E.2d 310 (Ind. 1995).

Footnote: Effective March 26, 2002, Indiana Code § 34-10-1-2 was amended by House Enrolled Act 1027, but the Court has not considered the changes made by the Act as applicable to Secor’s request for counsel. For reference, however, the pertinent amendments made by the Act follow (new language is in bold):

SECTION 1. IC 34-10-1-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. (a) This section may not be construed to prohibit a court from participating in a pro bono legal services program or other program that provides legal services to litigants:
        (1) without charge; or
        (2) at a reduced fee.
     (b) If the court is satisfied that a person who makes an application described in section 1 of this chapter does not have sufficient means to prosecute or defend the action, the court: shall:
        (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.
(c) The factors that a court may consider under subsection (b)(2) include the following:
        (1) The likelihood of the applicant prevailing on the merits of the applicant’s claim or defense.
        (2) The 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.
    (d) The court shall deny an application made under section 1 of this chapter if the court determines any of the following:
        (1) The applicant failed to make a diligent effort to obtain an attorney before filing the application.
        (2)The applicant is unlikely to prevail on the applicant’s claim or defense.
     (e) All officers required to prosecute or defend the action shall do their duty in the case without taking any fee or reward from the indigent person.
     (f) The reasonable attorney’s fees and expenses of an attorney appointed to represent an applicant under section 1 of this chapter shall be paid from the money appropriated to the court:
        (1) appointing the attorney, if the action was not transferred to another county; or
        (2) from which the action was transferred, if the action was transferred to another county.

SECTION 2. An emergency is declared for this act.

H.E.A. 1027, §§ 1 & 2, 112th Gen. Assem., Second Reg. Sess. (Ind. 2002) (amending Ind. Code § 34-10-1-2).

Footnote: The Court does not consider the Sholes ruling to be applicable to the final judgment entered by Judge Fisher in the CSET proceeding. It is not clear whether Sholes’s rules for statutory counsel requests are to be applied to cases in which the request was made and presented in a direct appeal which was resolved before Sholes was decided. The general rule is that caselaw changes affecting procedural issues are not to be applied to cases in which the appeal remedy was exhausted before the case making the change was decided. See, e.g., Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994). See also Chapin v. Hulse, 599 N.E.2d 217, 220 (Ind. Ct. App. 1992) ([n]either of the above quoted provisions [T.R. 60(B)(2) and (8)] contemplates a subsequent change in law as grounds for relief” – “[t]he fact that a subsequent decision in a different case recognizes a similar legal error ‘merely demonstrates that had the claimant appealed he would have succeeded, assuming the allegedly identical evidence’”).
In any event, Judge Fisher’s decision not to provide counsel to Secor was not based on the erroneous conclusion either that Secor had no right under the statute to counsel or that the Court had no authority to provide funds for counsel, issues which Sholes speaks to. Indeed, Judge Fisher’s ruling on these points cited a Court of Appeals case holding that appointment of counsel for an indigent was mandatory, Holmes v. Jones, 719 N.E.2d 843 (Ind. Ct. App. 1999). CSET Opinion, p. 2, n. 1. Instead, Judge Fisher determined that Secor’s indigency was not sufficiently established. Id.
Footnote: An in-person hearing would be problematic, as this Court would have to travel to Mr. Secor since, as pointed out in footnote 3 above, it has no authority to order that Secor be brought to it from the Department of Correction.

Footnote: The Court notes that Secor has demonstrated some “means to prosecute.” He has succeeded in having his Double Jeopardy arguments fully considered by this Court and took what appears to have been a procedurally adequate appeal of the Court’s judgment to the Indiana Supreme Court. But his inability to assess legal authorities competently, as demonstrated in his arguments, convinces this Court that he does not have “the means to prosecute.”
Footnote: As a general rule, the mistake, surprise or neglect authorizing relief may not be predicated upon

the neglect of a party’s attorney because the attorney’s negligence is imputed to his client and may not be offered by the latter as a basis for relief. [Citations omitted.] However, excepted from the rule are those instances where the attorney’s neglect is of such extreme degree as to amount to positive misconduct, and the person seeking relief is relatively free from negligence.

W. Harvey, 4 Ind. Practice § 60.4 (2nd Ed. 1991).

Footnote: “A void judgment is one that, from its inception, is a complete nullity and without legal effect . . . .” Stidham v. Welchel, 698 N.E.2d 1152, 1154 (Ind. 1998). “A void judgment is one rendered by a court . . . without jurisdiction of a particular case or the parties[.]” Yellow Cab Co. of Bloomington, Inc. v. Williams, 583 N.E.2d 774, 777 (Ind. Ct. App. 1991).

Footnote: “ Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII.
    Almost a year before Secor filed his CSET appeal with this Court, the United States Supreme Court addressed, for the first time, when a “punitive forfeiture is constitutionally excessive” under the Eighth Amendment’s Excessive Fines Clause. United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 2036, 141 L.Ed.2d 314, 330 (1998). The Court adopted “the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents.” Id., 524 U.S. at 336, 118 S.Ct. at 2038, 141 L.Ed.2d at 331.
    Bajakajian has been criticized as providing little guidance for situations other than the particular criminal forfeiture it directly addressed. M. Solomon, The Perils of Minimalism: United States v. Bajakajian in the Wake of the Supreme Court’s Double Jeopardy Excursion, 87 Geo. L.J. 849, 877-78 (1999). There is little more than the “gross disproportionality” language itself to apply in other cases
    It appears to this Court to be a close question whether the amount of the CSET imposed on Secor is “grossly disproportional.” Indiana Code § 6-7-3-6 imposed a CSET on Secor of $40 per gram, with an added $40 per gram nonpayment penalty, for a total tax, plus penalty, of $80 per gram. Under the United States Sentencing Guidelines half a gram of marijuana equals one marijuana cigarette. 18 U.S.C.S. Appendix, 2D1.1 (2002). Thus the total CSET plus penalty on a single marijuana cigarette until 1996 was $40. This amount is not, to this Court, clearly “grossly disproportionate,” but the point is arguable.

Footnote: “ Excessive fines shall not be imposed.” Ind. Const., Article I, Section 16.
Under the Indiana Constitution’s Excessive Fines Clause, there are few decisions and none which provide much guidance with a provision like the CSET. There is a question whether the CSET imposed on Secor is a “fine” under the Indiana Constitution. The Court notes the recent decision Adams v. Indiana Department of Revenue, 726 N.E.2d 728 (Ind. 2002), in which the majority considered the importance of the use of the State’s power to tax as a factor in concluding that the exclusionary rule should not apply to the prevent the use in CSET assessments of controlled substance evidence seized by revenue agents in violation of the Fourth Amendment. This majority position appears consistent with the CSET’s being a tax unaffected by characterization as a “fine.” Compare the minority’s position, which emphasizes the punitive nature of the CSET.
    If the CSET is a “fine” under Article I, § 16, then there is a question as to the extent to which the Indiana excessive fines provision will differ from the federal “grossly disproportionate” inquiry in Bajakajian. Bajakajian’s federal excessive fines standard was adopted directly from “the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents.” Bajakajian, supra, 524 U.S. at 336, 118 S.Ct. at 2038, 141 L.Ed.2d at 331 In this respect, it has been said that Indiana’s Article I, § 16 cruel and unusual punishment provision required a more extensive proportionality inquiry in an habitual criminal offender case than the federal cruel and unusual punishment provision does. Mills v. State, 512 N.E.2d 846 (Ind. 1987).
This suggests that the Indiana Excessive Fines Clause may require a different and broader-reaching proportionality inquiry than the Bajakajian “gross disproportionality” inquiry did. The federal inquiry in Bajakajian focused entirely on the nature of the federal crime for which the “fine” was imposed. Indiana’s Mills decision concluded that, under Article I, § 16’s cruel and unusual punishment provision, the Article I, § 16 provision “[a]ll penalties must be proportioned to the nature of the offense” required looking beyond the particular crime complained of to the penalties for other crimes. This suggests that the Indiana inquiry may take into account not only the proportionality of the CSET amounts in relation to the nature of Secor’s underlying criminal offense, the cultivation of marijuana, but also the amount of CSET levied on other substances for which more or less serious criminal punishments are authorized by our statutes.
If so, then the Indiana inquiry will take into account the fact that the CSET, as imposed on Secor at the rate authorized prior to 1996, was the same for marijuana as for cocaine or heroin. And the taxation of these substances, which are subject to more severe criminal penalties for possession than the marijuana Secor was prosecuted for, at the same rate as marijuana may be a basis for concluding the pre-1996 CSET on marijuana was an excessive fine because it was not proportioned to the offense.