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 had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  2. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  3. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  4. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...

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