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Motion to dismiss filed in prosecutor case

Wednesday, December 29, 2010

INDIANAPOLIS -- On Monday, Indiana Deputy Attorney General David A. Arthur filed a motion to dismiss a civil lawsuit filed in July that names 78 of Indiana's 92 county prosecutors.

The suit was filed through Marion County Superior Court by Indianapolis law firm Roberts & Bishop. Although it was filed in July, it remained sealed until late November.

The suit alleges the named prosecutors -- including Putnam County Prosecutor Tim Bookwalter -- have mishandled proceeds gained as a result of the forfeiture of the property of drug offenders or other criminals.

Indiana statute dictates that prosecutors can seize items, such as cash and vehicles, discovered during criminal investigations, and that they can use the cash or proceeds from the sale of goods to fund law enforcement efforts.

The suit alleges that the prosecutors have violated state statute that says any money left over in forfeiture cases after the enforcement fees associated with the case have been paid is to be turned over to Indiana's Common School Fund.

A motion to dismiss tests the legal sufficiency of a claim.

"This motion is based, in large part, on the absence of subject matter jurisdiction in this court," Arthur's motion said. "A motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning the court's power to act."

In his motion, Arthur goes on to note that the case has been improperly filed as a false claims case.

"That the complaint is against the prosecuting attorneys in their official capacities in important because that fact precludes a false claims case," the motion said. "Suing a public official in an official capacity is merely another way of suing the governmental entity of which the public official is an agent."

Additionally, Arthur contends that the firm that filed the suit had no standing to do so, and further had no jurisdiction under the state's False Claims Act.

"That prerogative belongs exclusively to the superintendent of public instruction," the motion said. "Because there is a civil suit and because the distribution of the forfeited property is determined by the court in that civil suit, this court lacks jurisdiction."

The motion also cites evidence that the action is against public policy and the named prosecutors are "absolutely immune" to civil suits of this nature.

"The same legislature that provided that government employees are immune for initiating a judicial proceeding would also provide that a prosecutor cannot be found liable for securing a judgment in a civil forfeiture," the motion said. "The prosecutors are immune. The complaint fails to state a claim upon which relief can be granted and should be dismissed."

The attorney general's office is acting as counsel for the prosecutors in accordance with Indiana Code 33-23-13-3, which states that the Attorney General's Office is obligated to represent the state's prosecuting attorneys in any civil suit filed in connection with their jobs if the prosecutors request the assistance.

Bookwalter has called the lawsuit "frivolous."

Chris Gambill, forfeiture attorney for Putnam, Owen, Clay, Parke, Vermillion, Vigo and Greene counties said Bookwalter invited the attorneys who filed the suit to come to his office and look at all his records, but that they never did so.

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This is a case that involves judges, prosecutors, lawyers, etc. and will use every loophole and angle to drag out a resolution to this. I guarantee that not one prosecutor will be held accountable. Everybody involved in this case is a lawyer. Put them all in a sack, shake them up and pour them out --- no-one knows which one will come out first.

-- Posted by not gullible on Wed, Dec 29, 2010, at 8:50 AM

Do you really think there is going to be paper work to show where all the money went, only the lawful transaction have paper work.

-- Posted by fed-up2010 on Wed, Dec 29, 2010, at 8:29 PM

Once again Ms. Barrand uses her position to be a mouthpiece for the Prosecutor's Office. The article does not contain a comment from the lawyer who filed the lawsuit.

-- Posted by CitizenJoe on Wed, Dec 29, 2010, at 8:33 PM

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