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AG's involvement questioned in prosecutor forfeiture suit

November 24, 2010

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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