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AG's involvement questioned in prosecutor forfeiture suit

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The Indiana Attorney General’s Office plans to “zealously defend” 78 prosecutors being sued over civil forfeiture collection practices, meaning the state courts will likely have to analyze not only the merits of that issue but also whether two separate state statutes restrict how Indiana’s top attorney can intervene in this taxpayer-filed qui tam lawsuit.

Indianapolis plaintiff’s attorney Paul Ogden filed the suit in Marion Superior Court on Aug. 12, but the case was just unsealed late last week after a mandatory 120-day waiting period.

At issue is the filing of civil forfeiture suits against the property of drug offenders or other criminals. Under Indiana law, prosecutors can seek to seize the proceeds of crime and use those proceeds to fund law enforcement efforts. The courts will likely have to ultimately determine what the term “law enforcement costs” means and how that is applied within each jurisdiction, a definition that each locality has found to encompass different things.

The plaintiff in this suit claims prosecutors have violated a state statute that directs any money from civil forfeitures exceeding law enforcement costs to be transferred to the Indiana Common School Fund. Media reports have analyzed the variances in how this money is handled throughout the state, and this very issue sparked misconduct accusations against Delaware County Prosecutor Mark McKinney. A disciplinary action currently is pending before the Indiana Supreme Court.

But before the merits of the forfeiture law are examined, the parties are expected to argue over procedural aspects such as how the AG’s Office is involved in this case.

One statute allows the attorney general to defend the county prosecutors on the civil suit against them, while a different statute directs the AG to intervene on behalf of the plaintiffs suing over how seized assets should have been placed into a state school fund rather than being kept by local law enforcement for its forfeiture-related expenses.

Under Indiana Code 33-23-13-3, local prosecuting attorneys are designated as state judicial officers. The attorney general’s representation is triggered once a prosecutor asks for representation – either by the AG personally or by hiring private defense counsel on any civil action. But the False Claims Act, which Ogden's suit cites, allows a citizen plaintiff to bring a case he or she thinks could benefit other citizens, in hopes that the attorney general will take it over. Zoeller rejected that option Tuesday, characterizing the issue as a public policy dispute that could distract prosecutors from their public safety duties.

“Accusing prosecutors of intentionally violating the False Claims Act strikes me as unfair public criticism, when this disagreement over the calculation of money really is a dispute over the state’s public policy, not false claims,” Zoeller said. “The plaintiff (is) framing the lawsuit in a way to claim to be representing the state will not keep me from my duty to defend prosecutors in court against civil lawsuits. The proper place to argue that Indiana’s civil forfeiture law is too lax or too vague is the Indiana General Assembly, which can introduce and pass a bill to change the law. I would support legislative efforts to clarify the civil forfeiture law to provide more transparency and certainty, but that debate ought to happen in the Legislature, not in civil court.”

Disputing Zoeller’s intervention in this way, Ogden said the state should hire private counsel for the prosecutors being sued.

"The attorney general's office should not be in the business of helping other state officials violate the law," he said.

Addressing a concern about the differing state statute interpretations, the AG’s litigation spokesman Bryan Corbin said the office respectfully disagrees with Ogden’s assertions that the only choices were to either side with the plaintiff or stand mute.

“The public policy of the state envisions that the Attorney General represents prosecutors in such matters. We will argue this point in court and the court will decide,” he said.
 

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  • I Would Add
    I am not sure why someone in the Attorney General's Office hasn't taken a closer look at Indiana's qui tam statute. The law allows the AG to:

    1) Not intervene in the lawsuit if he so chooses.
    2) Intervene for the Plaintiff and ask that the case be dismissed. There is a procedure outlined for this option. It is in fact the ONLY way a qui tam can be dismissed.
    3) Intervene for the Plaintiff and try to settle the case.
    4) Intervene for the Plaintiff and litigate it to conclusion.

    Those are the options. The AG wants to pursue annother option - representing the defendant. I don't know of a single qui tam case in the country where the AG or U.S. Attorney started representing the Defendant against someone bringing the action for the government.

    It makes no sense to do so. The qui tam law mandates that the citizen bring the action "on behalf of the State of Indiana." That's why the law provides for the AG to intervene for the Plaintiff if he doesn't like it and ask that it be dismissed, on behalf of the State of Indiana. Otherwise you have the State on both sides of the lawsuit.

    Here's another thing. Once the AG refuses to intervene for the Plaintiff, the Inspector General can intevene for the Plaintiff. Thus, under the AG's approach in which he believes he can represent a qui tam defendant, you could have the Inspector General opposing the Attorney General, both representing the State.

    It's obvious once you look at all the qui tam provisions that the legislature never intended for the AG to be able to represent a qui tam defendant. Of course Attorney General Zoeller doesn't seem particularly concerned about what the General Assembly intended when it comes to his interpretation of the law.

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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