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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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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