Wednesday, April 6, 2011

Judge Tosses Out Civil Forfeiture Lawsuit, Expresses Doubt Civil Forfeiture Law is Constitutional

Yesterday Marion County Superior Court Judge Timothy Oakes issued an order dismissing our civil forfeiture action brought against the states' prosecutors on the basis that it didn't fall within the type of action brought under Indiana's qui tam statute.  Of course, Attorney General Greg Zoeller jumped on the opportunity to praise the court for dismissing the "meritless" action.

Attorney General Greg Zoeller
In his press release, AG Zoeller suggests that the AG had already issued an opinion on the subject and would continue to work with the legislature on refining the law.  Apparently Greg Zoeller didn't bother to read the rest of Judge's Oakes opinion, in particular the section which bashed the AG's advisory opinion on civil forfeiture and almost invited us to simply amend the complaint to fix standing issues and proceed to challenge the constitutionality of the law.

Some background is necessary.  Article 8, Section 2 says that the Common School Fund will be made up of a number of things including money acquired "from all forfeitures which may occur."  A few years ago, the Attorney General, under Steve Carter, issued an advisory opinion saying that this statute did not apply to "civil" forfeiture, those forfeitures which occur where the forfeiture action is filed separately in civil court, usually against the property that has been seized.  I have no doubt the AG issued that opinion as an advocate for law enforcement rather than as an objective interpreter of the law.

Let's see what Judge Oakes says in the part of the opinion Zoeller ignores:
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.  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 Prosecutor's mind as they determine their take for pursuing the forfeiture actions.

On a deeper level, despite an Attorney General Opinion and some precedent in this state, this court's simple reading of Article 8, Section 2 of the Indiana Constitution would indicate that it applies to all forfeitures.  Past scholars have focused on the history of fines for penal violations and the placement of the forfeiture section after the phrase "fines assessed for breaches of the penal laws of the State" in our Indiana Constitution.  However, both clauses seem to be set off by semicolons making each independent of the other.  Thus, the phrase "from all forfeitures which may accrue" would appear to have few, if any, limits.
Regarding paragraph one, AG Greg Zoeller has stood on the sidelines for years while prosecutors and law enforcement kept 100% of the money when they were only entitled to "law enforcement costs" under Indiana.  He did absolutely NOTHING to enforce the law.  Now with his "clients" caught with their hand in the cookie jar he tries to pretend to be a reformer, while decrying as "meritless" the very lawsuit that finally forced him to reluctantly enter into the game.

Regarding paragraph two, I agree 100% with Judge Oakes.  I think the civil forfeiture law almost certainly violates the Constitution for the very reason the judge cites.  We were willing to stop short of that challenge, however.  We see value in a civil forfeiture law if it is applied with the limits of "law enforcement costs only" which would prevent policing for profit.  The 85% windfall prosecutors and law enforcement types are attempting to get the legislature to write into stone is so far above actual law enforcement costs that it most certainly creates policing for profit.  At best it should be 50-50.  The Wayne County example shows that real law enforcement costs are closer to 25%.

Because of AG Zoeller's stubbornness, his refusal to ask for any accounting of the money diverted from our public schools, his refusal to enforce the existing law, his attempting to write an 85% windfall into the law, we may well have no choice but to simply amend the lawsuit to ask that the court strike down the civil forfeiture law as unconstitutional.  We feel very confident, for the reasons Judge Oakes cites, that we will ultimately prove successful should we choose to pursue that option.


varangianguard said...

Don't know much about law, but if a judge invites changes and a re-file, then one should seriously consider doing just that.

Paul K. Ogden said...

We probably will do that Varan.

We stopped short of challenging the constitutionality based on the naive belief that AG Zoeller would be actually helpful with the taxpayer lawsuit and our attempts to get prosecutors to comply with the law. We were wrong. Zoeller, in fact, could not be more hostile. The man seems to not understand his role as AG is to enforce the law. He seems to think it is to look the other way while his "clients" take off with money that doesn't belong to them.

Pete Boggs said...

Assessment inconsistencies (apparent, known & summarily ignored) would likewise apply to real estate...

Cato said...

In Indiana, the government does whatever it wants, and the courts paper over it.

Enjoy your sisyphean effort.

Pete Boggs said...

Attempting to operate government in the stolen style to which its become accustomed is proving to be sisyphean.

Unknown said...

That's an incredibly favorable dismissal order, Paul. The judge explicitly said the underlying issues you raised have merit and seemed to go out of his way to clarify he was ruling only on the qui tam applicability to pursue them. Do you know the status of the statehouse bill? Hopefully, they're paying attention to the 85% figure...