Attorneys for Appellant Attorneys for Appellee
Steve Carter Ralph E. Dowling
Attorney General of Indiana Indianapolis, Indiana
Jodi Kathryn Stein
Deputy Attorney General
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
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:
. . .
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
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).
. . .
. . .
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 States 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.
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 Generals 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 statutes 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 Assemblys 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).
See footnote 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
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without opinion