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 think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.