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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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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