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State v. Evans

Court: Indiana Supreme Court
Date filed: 2004-06-15
Citations: 810 N.E.2d 335
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27 Citing Cases

Attorneys for Appellant                            Attorneys for Appellee
Steve Carter                                       Ralph E. Dowling
Attorney General of Indiana                        Indianapolis, Indiana

Jodi Kathryn Stein
Deputy Attorney General
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 05S02-0311-CV-497


State of Indiana,
                                             Appellant (Plaintiff  below),

                                     v.

T. Eric Evans,
                                             Appellee (Defendant  below).
                      _________________________________

 Interlocutory Appeal from the Blackford Circuit Court, No. 05C01-0202-CC-25
                The Honorable Jan L. Chalfant, Special Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 05A02-0210-
                                   CV-875
                      _________________________________

                                June 15, 2004

Shepard, Chief Justice.

      After an audit by the State Board of Accounts,  the  Attorney  General
sued former prosecutor T. Eric  Evans  to  recover  public  money  spent  on
alcohol, hotel rooms, ammunition for personal  use,  personal  phone  calls,
and the like.  Evans contends he is entitled to counsel at  public  expense.
We hold he is not.


      On February 12, 2002, the Attorney General filed a  complaint  against
Evans and Western Surety Company to recover public funds “which  were  found
to be misappropriated, diverted or unaccounted for by an examination of  the
books, accounts and records of  the  Office  of  the  Prosecutor,  Blackford
County, Indiana, by the State Board of Accounts.”  Appellant's  App.  at  8.
The allegations arose from Evans’  activities  as  prosecuting  attorney  of
Blackford County from January 1,  1993,  through  December  31,  1998.   The
complaint reads in relevant part:


           COUNT I
           . . .


           4.  T.  Eric  Evans  was  an  employee  of  the  Office  of  the
           Prosecutor, Blackford County, Indiana, during the period of  the
           loss and had a duty to properly  account  for  and  deposit  all
           funds of the Office of the Prosecutor, Blackford County, Indiana
           which came into his possession and assure that the funds of  the
           Office of the Prosecutor, Blackford County,  Indiana  were  only
           expended as authorized by law and commit no acts of misfeasance,
           malfeasance or nonfeasance in management of said funds.


           5. That during the audit period, T. Eric  Evans,  wrongfully  or
           negligently failed to properly account for, expend  and  deposit
           the funds of the Office of the Prosecut[or],  Blackford  County,
           Indiana or otherwise  committed  several  acts  of  misfeasance,
           malfeasance  and  nonfeasance  which  acts   resulted   in   the
           misappropriation, diversion and misapplication of public funds.


           6.  As a direct and proximate result of the actions of  T.  Eric
           Evans, he is indebted to the State of Indiana and the Office  of
           the Prosecutor, Blackford County, Indiana  in  the  amount  [of]
           Sixteen Thousand Two Hundred Eighteen Dollars ($16,218.00).
           . . .




           COUNT II
           . . .


           10.  That Plaintiff, State of Indiana, is a  party  suffering  a
           pecuniary loss as a result of a violation by Defendant  T.  Eric
           Evans, of one or more of the following I.C.  35-43-4-2  [theft],
           I.C.  35-43-4-3  [criminal   conversion]   or   I.C.   35-43-5-3
           [deception],  which  loss  consists  of  the  sum  of  .   .   .
           ($16,218.00) and Plaintiff is entitled  to  recovery  of  treble
           damages in the amount of . . . ($48,654.00) plus costs, attorney
           fees and all other just and proper relief.


           11.  That Plaintiff, State of Indiana, is a  party  suffering  a
           pecuniary loss as a result of a breach  by  Defendant,  T.  Eric
           Evans, of his contract and trust, both real and constructive,  .
           . . and a violation of the resultant trust imposed on him by law
           and equity to collect,  administer,  bank  and  disburse  public
           funds belonging to the State of Indiana and the  Office  of  the
           Prosecutor, Blackford County, Indiana.


Id. at 9-10.  The State attached to the complaint  the  audit  performed  by
the Board of Accounts and Evans’ fourteen-page response to the  allegations.


      Before answering the complaint, Evans filed a motion  pro  se  seeking
appointment of counsel.  He cited Indiana Code § 4-6-2-1.5, Indiana  Code  §
33-2.1-9-1, and Indiana Code § 34-13-3-15.  In an attached affidavit,  Evans
averred as follows:


           That these claims were all handled and processed in exactly  the
           same manner, as prescribed by law and as directed by the Auditor
              of  Blackford  County  and  the  Commissioners  of  Blackford
           County.


           That all claims submitted by the affiant were  in  the  ordinary
           and usual course of business, were  advertised  as  required  by
           law, approved  by  the  Auditor,  and  approved  by  the  County
           Commissioners and paid by the Treasurer.


           That each and every act of submitting claims for payment by  the
           affiant was within the scope of the duties  of  the  affiant  as
           Prosecutor, as prescribed and required by law and practice,  and
           done in good faith by the affiant in his capacity as Prosecutor.


Id. at 63.

      The trial court granted his motion,  saying:   “The  Attorney  General
should be directed to comply with  the  statutory  procedure  set  forth  in
Indiana Code [§ 33-2.1-9-1(c)(2)] within thirty  days,  giving  priority  to
this case as a consideration in the hiring of private counsel for  Defendant
Evans.”  Id. at 70.  The State moved to stay all proceedings and  asked  the
court to certify the order for interlocutory appeal.  On  October  8,  2002,
the trial court granted  the  State’s  motion  to  stay  and  certified  the
interlocutory order.  The Court of Appeals affirmed.  State  v.  Evans,  790
N.E.2d 558 (Ind. Ct. App. 2003).  We granted transfer.

                  Must the Attorney General Supply Counsel?

      The trial court relied on Indiana Code  Annotated  §  33-2.1-9-1(c)(2)
(West Supp. 2003), in  determining  that  Indiana’s  Attorney  General  must
provide private counsel for Evans.  The statute at issue reads  in  relevant
part:


           If a judge or prosecuting attorney is sued for civil damages  or
           equitable relief and the suit would be construed,  under  notice
           pleading, as arising out of an act performed within the scope of
           the duties of the judge or prosecuting  attorney,  the  attorney
           general shall:
           (1) defend the judge or prosecuting attorney in the suit; or
           (2) authorize the executive director of the  division  of  state
           court administration to hire  private  counsel  to  provide  the
           defense.


Ind. Code Ann. § 33-2.1-9-1(c).

      While Evans, as a prosecuting attorney, enjoys  the  protections  that
this statute provides, we  cannot  ignore  the  incongruous  result  that  a
literal  reading  would  render  under  the  present  facts:   the  Attorney
General’s office would be either litigating or financing both sides of  this
suit.  Our method of analyzing statutes on such occasions is this:


           When interpreting  a  statute,  appellate  courts  independently
           review a statute's meaning and apply it to the facts of the case
           under review.  If a statute is unambiguous, that is, susceptible
           to but one meaning, we must give the statute its clear and plain
           meaning.    If   a   statute   is   susceptible   to    multiple
           interpretations,  however,  we  must  try   to   ascertain   the
           legislature's  intent  and  interpret  the  statute  so  as   to
           effectuate that intent.  We  presume  the  legislature  intended
           logical application of the language used in the statute,  so  as
           to avoid unjust or absurd results.


Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind. 2002) (citations  omitted).   We
conclude that the interpretation urged by  Evans  would  produce  an  absurd
result.   The  statute’s  objective  is  to   protect   officeholders   from
litigation by those dissatisfied with the decisions  they  make  (typically,
in the case of judges and prosecutors, lawsuits  by  prisoners).   We  think
the General Assembly’s intent  for  situations  like  the  present  case  is
reflected by its explicit rule for statewide officials.  See Ind. Code  Ann.
§ 4-6-2-1 (2002) (Attorney General “shall defend all suits  brought  against
the state  officers  in  their  official  relations,  except  suits  brought
against them by the state”).

      Requiring the Attorney General to finance both sides of this  suit  is
akin to the dog chasing its own tail  and  an  absurdity  that  the  General
Assembly could not have intended.  See, e.g., Livingston v. Fast  Cash  USA,
Inc., 753 N.E.2d 572 (Ind. 2001) (applying the “absurd result rule”  to  the
Indiana Uniform Consumer Credit Code).[1]  Whether the statute would  afford
reimbursement to a defendant who prevails we leave for another day.

      Evans also contends that Indiana Code  Annotated  §  33-14-11-4  (West
1996) entitles him  to  a  defense  provided  by  the  State.   The  statute
provides in relevant part:  “The state shall pay the expenses incurred by  a
prosecuting attorney from a threatened,  pending,  or  completed  action  or
proceeding[.]”  We conclude that this section is  unavailing  to  Evans  for
reasons substantially similar to those mentioned above.

                                 Conclusion

      We reverse the trial  court’s  grant  of  Evans’s  motion  to  appoint
counsel and remand for proceedings on the merits.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without opinion
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[1] Our Rules of  Professional  Conduct  instruct  us  as  follows:   “As  a
general   proposition,   loyalty   to   a   client   prohibits   undertaking
representation  directly  adverse  to  that  client  without  that  client's
consent.”  Ind. Rules of Prof’l Conduct R.  1.7  cmt.  (1987).   While  full
disclosure or the hiring of  private  counsel  might  resolve  the  Attorney
General’s  ethical  dilemma,  the  questionable  use  of  public  funds   to
prosecute and defend the same person would still give great concern.