|Attorney General Greg Zoeller|
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.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.
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 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.