Wednesday, November 24, 2010

Zoeller No Friend Of The Taxpayers

Fellow blogger and attorney Paul Ogden has filed a False Claims Act on behalf of the taxpayers of Indiana against 78 county prosecutors who are deliberately misapplying Indiana's civil forfeiture statute by retaining 100% of the assets forfeited instead of turning over funds to the Common School Fund after deducting law enforcement costs associated with a civil forfeiture action. Many Indiana prosecutors simply lump the entire cost of law enforcement for police into the cost of pursuing the forfeiture action, thereby assuring no funds are ever turned over to the Common School Fund as contemplated by the state statute. A few honest prosecutors, such as Wayne County's, limit the cost to the actual cost incurred in pursuing the civil forfeiture action as the statute provides and sends the rest to the schools. Indiana Attorney General Greg Zoeller could have intervened in the lawsuit on behalf of the taxpayers. Instead, he has chosen to defend the prosecutors in this unseemly practice. The Star's Heather Gillers reports:

The suit, which was filed by an Indianapolis law firm in Marion Superior Court, seeks repayment of two years' worth of money the firm thinks is owed to Indiana's Common School Fund, and to clarify how much of that money prosecutors are allowed to keep.

Zoeller, in a news release issued Tuesday, characterized the issue as a public policy dispute that could distract prosecutors from their public safety duties.

"The proper place to argue that Indiana's civil forfeiture law is too lax or too vague is the Indiana General Assembly," Zoeller said. "I would support legislative efforts to clarify the civil forfeiture law to provide more transparency and certainty, but that debate ought to happen in the legislature, not in civil court."

Paul Ogden, the attorney bringing the case, accused Zoeller of trying to curry favor with prosecutors and said he would move to strike any court appearance by the attorney general. Ogden argues that prosecutors are breaking a fairly clear law -- not misunderstanding a vague one.

How the attorney general would deal with the suit has fed speculation since it was unsealed Friday. The case arguably falls under two separate state statutes: One allows Zoeller to intervene on behalf of the defendant, the other on behalf of the plaintiff.

State statute instructs that when a prosecutor is sued in connection with his or her job, the attorney general must either make arrangements for private defense counsel or represent the prosecutor himself.

But the False Claims Act, which Ogden's suit cites, allows a citizen plaintiff to bring a case he or she thinks could benefit other citizens, in hopes that the attorney general will take it over. Zoeller rejected that option Tuesday.

"The plaintiff's framing the lawsuit in a way to claim to be representing the state will not keep me from my duty to defend prosecutors in court against civil lawsuits," he said. He said "a number" of prosecutors have already asked him to represent them.

Sorry, Mr. Zoeller, but the statute isn't vague. What Zoeller really should have said is that he is more interested in helping his attorney friends like Greg Garrison who are collecting a generous contingency fee from representing county prosecutors in these civil forfeiture actions. Garrison, who spends at least half of his time working on his radio talk show at WIBC-FM, represents several counties, including Marion County, in civil forfeiture actions on a contingency fee basis. As the Star has reported, Garrison has pocketed hundreds of thousands of dollars for work on some cases that really required little work at all on his part. The real leg work is done by the law enforcement officials in the course of their duties. Some have criticized prosecutors for using outside counsel rather than using in-house counsel, or at least pay attorneys on an hourly rate for their work as opposed to a contingency fee. Zoeller's actions won't help taxpayers, but it should be good for plenty of free air time on Garrison's radio talk show host to pretend to be an advocate for the taxpayers.


Paul K. Ogden said...

Good post, Gary. Thanks.

No the law isn't at all "vague" when it comes to the Common School Fund. Obviously it doesn't mean ALL law enforcement costs in the county (including all salaries for police officers and for those who work in the prosecutor's office) have to be paid out of civil forfeitur proceeds before any money is owed to the Common School Fund. If that were true then no money would ever be paid to the common school fund and the legislative requirement would be nullified.

Zoeller had an opportunity to intervene and work out a resolution that would recover money and get the prosecutors to follow the law. Instead he has chosen to defend the unseemly practice of procecutors and police officers pocketing everything they take in in forfeiture despite the clear intent of the legislature.

Zoeller has a private practice view of what an AG should do. He believes he has to represent state officials regardless of whether they're breaking the law. That simply isn't true. The AG can require outside counsel and often did so when I worked for Linley Pearson.

The Attorney General has taken an oath to uphold the law. He has duties under the law to provide objective interpretations of the law and to ensure that state officials are following the law. Zoeller has decided to ditch all those responsibilities for a cold political calculation that he can score more political points representing prosecutors than the taxpayers of the state of Indiana.

You watch, the AG will want NOTHING to do with asking a judge to review his interpretation of law enforcement costs. He won't want to do that because he knows the position is extremely disingenous. Instead the AG will try to get the case summarily dismissed on technicalities.

Of course if the AG actually read the qui tam law, he'd find that the law only allows dismissal if he intervenes for the Plaintiff and follows the procedure. No other dismissal is allowed under the law. He's shot himself in the foot.

Also, the AG is supposed to certify he doesnt' want to intervene for the plaintiffs and then the Inspector General has the opportunity to do so in his absence. That's just one of the reasons why it is obvious that the AG can't represent a defendant in a qui could end up with the Inspector General and the AG on opposite sides.

Marycatherine Barton said...

How despicable of Greg Zoeller to oppose this law suit brought by Paul Ogden on our public behalf. Thanks for this criticism of him, Gary, and Happy Thanksgiving.

Jon said...

The chief lawyer for our state would rather defend local prosecutors abusing / misinterpreting the law than abide by law. That sound about right?