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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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