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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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