First, I would point out that a qui tam lawsuit is a lawsuit filed by a taxpayer, ON BEHALF OF THE STATE OF INDIANA. The qui tam statutes provides for a very special role for the Attorney General. He may choose to intervene for the Plaintiff and take over the lawsuit, pursuing it to its conclusion or settling the case. If the Attorney General feels the lawsuit is meritless, there is a process where the AG can intervene for the Plaintiff and ask that the case be dismissed. There is nothing in the qui tam law though that would authorize the Attorney General, the attorney for the State of Indiana, to represent defendants against someone who filed an action on behalf of the State of Indiana. Indeed I cannot find a single qui tam case in the country where a state attorney general or a U.S. Attorney represented a defendant in a qui tam lawsuit. To do so makes no sense. Certainly we will vigorously oppose any effort by the Attorney General to represent the county prosecutors in this case. The procedures set forth in the Indiana’s qui tam law need to be followed.
While I realize that traditionally the Indiana Attorney General’s Office provides representation to county prosecutors who are technically state officials, the Attorney General’s Office also represents the Indiana General Assembly which passed the state’s forfeiture law as well as the Indiana Treasurer’s Office which manages the Common School Fund. The Attorney General should not be involved in helping county prosecutors deliberately violate the law passed by our General Assembly by holding onto money and property that actually should go to the Common School Fund maintained by the State Treasurer.
Contrary to some suggestions, the law is not vague whether “law enforcement costs” refers to all law enforcement costs in the county or law enforcement costs related to the particular civil forfeiture action. Of course it refers to law enforcement costs relating to the action that results in the particular civil forfeiture. To interpret the law to mean all law enforcement expenses in the county, including the cost of running the prosecutor’s office, would completely nullify the law as money obtained through civil forfeitures is never going to exceed law enforcement expenses in a county. One rule of interpretation is that you don’t interpret a statute in a way that obliterates the law.
When Greg Zoeller assumed the Office of Attorney General, he took an oath to uphold the Constitution and the law, including statutes passed by the Indiana General Assembly I would simply ask that he live up to that oath and join the Plaintiff in ensuring that county prosecutors follow the civil forfeiture law and pay excess funds above law enforcement costs to the Common School Fund. Certainly we welcome the Attorney General’s efforts in brokering a settlement to recover funds for the Common School Fund as well as future compliance with the law. We don’t welcome the Attorney General though if his appearance in the case is going to be about helping county prosecutors continue to violate Indiana law by keeping civil forfeiture funds which do not belong to them and which instead belong to the state’s schools.