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Judge dismisses civil forfeiture suit against state prosecutors

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A Marion Superior judge has tossed a lawsuit against 78 county prosecutors being accused of breaking the law by not turning over seized assets from criminals to a school construction fund. In doing so, the judge expressed concern about the lack of reasoning and consistency demonstrated by prosecutors throughout the state.

Judge Tim Oakes issued a three-page ruling late Tuesday in State of Indiana Ex Rel Adam Lenkowsky v. Christopher E. Harvey, et. al., No. 49D13-1007-PL-031572, dismissing the plaintiff's claims because the state already knew about the forfeiture issue at the time the action was filed and because a civil forfeiture action doesn’t meet the meaning of “claim” outlined in Indiana Code 5-11-5.5-1(1).

State law currently allows law enforcement agencies to keep a portion of seized funds to cover "law enforcement costs" and give the rest to the common school fund geared toward construction costs. But the amounts are left to the discretion of each prosecutor and each has interpreted that differently.

Media reports have analyzed the variances in how this money is handled throughout the state. The issue sparked misconduct accusations against former Delaware County Prosecutor Mark McKinney, and a disciplinary action is currently pending before the Indiana Supreme Court.

Indianapolis attorney Paul Ogden filed the suit in Marion Superior Court Aug. 12 and it was unsealed after a required 120-day waiting period. The named plaintiff is a Marion County resident and attorney practicing at the same firm that filed the suit, and on behalf of the state he’s suing these county prosecutors because they violated state forfeiture law and the Indiana Constitution. This came as a qui tam action via the Indiana Claims Act, but the Indiana attorney general’s office declined and instead defended the prosecutors.

On Tuesday morning, just hours before the judge handed down his order dismissing this action, Attorney General Greg Zoeller spoke to a group of about 100 lawyers in Indianapolis on the Indiana Claims Act and how it enables private whistleblowers to file suit and expose fraud. Spokesman Bryan Corbin said the timing was coincidental as the speech was planned weeks ago, and it was by chance it fell on the same day as Judge Oakes ruled on the Lenkowsky case. The judge heard arguments on the case in January, before his decision this week granting the state’s motion to dismiss.

Pointing out that qui tam actions date back to when the government was being sold bad mules, Judge Oakes noted that the current Indiana Claims Act resembles the federal False Claims Act, specifically requiring that the state not know about a whistleblower issue at the time of filing. He also held that civil forfeitures or court judgment entries don’t fit the “claim” definition written into state statute.

“While Mr. Lenkowsky may have chosen the wrong legal mule to ride here to pursue this issue, the merits of the issue at the heart of the matter do not deserve to be ignored," the judge wrote. “Troubling to this Court is the relative lack of any logic or consistency in the assessment of law enforcement costs across the state if not in Marion County. Little, if any, logical assessment, much less consistent assessment, appear to enter the Prosecutors' minds as they determine their take for pursuing the forfeiture actions."

Judge Oakes referred to a recent non-binding attorney general opinion and some uncited state precedent, but said his simple reading of Article 8, Section 2 of the Indiana Constitution indicates that all forfeitures are covered and has few limits, if any.

“Perhaps more importantly, the constitutionality of the actions currently in practice in our state and the interpretation of this section of our Indiana Constitution are not before this Court today. Those considerations may be better addressed by our legislature and another Court at another day.”

In response to the ruling, Zoeller praised the judge’s findings and agreed that the current system needs legislative review – something that is currently pending. Senate Bill 215 would reform how civil forfeiture funds are handled by prosecutors, and it’s been approved by the Senate and on Monday passed through the House Committee on Judiciary.

Ogden couldn’t be immediately reached to comment on the ruling or whether he will file an appeal.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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