ILNews

AG's involvement questioned in prosecutor forfeiture suit

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was looking through some of your blog posts on this internet site and I conceive this web site is rattling informative ! Keep on posting . dfkcfdkdgbekdffe

  2. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  4. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

  5. Once again Indiana has not only shown what little respect it has for animals, but how little respect it has for the welfare of the citizens of the state. Dumping manure in a pond will most certainly pollute the environment and ground water. Who thought of this spiffy plan? No doubt the livestock industry. So all the citizens of Indiana have to suffer pollution for the gain of a few livestock producers who are only concerned about their own profits at the expense of everyone else who lives in this State. Shame on the Environmental Rules Board!

ADVERTISEMENT