Tuesday, November 23, 2010

The Responsibility of Attorney General Greg Zoeller to Uphold the Law w/Addendum

I was disappointed to hear the rumor that Attorney General Greg Zoeller might seek to represent the county prosecutors in the qui tam action filed by my law firm to recover monies that should have been paid into the common school fund.

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.
Paul Ogden
Addendum: I would add that I served as a Deputy Attorney General under Linley Pearson. Pearson took the position that allegations of violations of law by state officials would be investigated and if he felt they were violating the law, he'd refuse to represent them, making them to hire other counsel. That unfortunately has not been the practice of the Attorney General's Office under Steve Carter or thus far under Greg Zoeller. I know from experience as an attorney and a whistleblower myself, that the AG will not conduct an investigation when you point out legal violations and the AG will aggressively target anyone who dares to blow the whistle on a state official.


Cato said...

Typical Republican: cops get whatever they want, despite the law, and the citizens are forced to obey the whims of police and cheerfully suffer the boot on their necks.

The reflexive Republican cop-worship makes the party very unappealing.

I know said...

The AG already represented the Indiana Gaming Director in a Qui Tam case they refused to represent the State of Indiana and the tax payers. So what else is new?

If they had been challenged the first time maybe you would not have the same gaggle of lawyers playing games AGAIN!

Paul K. Ogden said...

Actually we did challenge them, I Know. Remember that strange court ruling?

I know said...

Yes Paul that is why I made the comment. The Federal Court getting in bed a ruling for the AG to look at the case as the Plaintiff and then back out and become a defendant attorney with all the Plaintiffs evidence goes completely against all common sense and good law.

For the Federal Court to rule that the AG would have gotten the information in discovery falls far away from equal and just treatment. The court seems to run the kingdom with the AG.

Maybe some folks need an education on well oiled the AG and well healed lawyer friends are in good ole Indiana.

dissolutionedattorney said...

You sure do talk the talk, but you don't walk the walk. Do you really have the right to be "disappointed" in any one but yourself, Paul? Their is no honor among thieves, whether they be the prosecuted, police, prosecutors, or attorneys who brought the qui tam action. For those of you who don't know what I'm talking about, hopefully you will very soon.