Saturday, August 6, 2011

Attorney General Issues Another Flawed, Politically-Motivated Opinion; Suggests Proposed Fort Wayne Ordinance Aimed at Stopping Pay-to-Play Politics Violates Indiana Law

Attorney General Greg Zoeller
Indiana Attorney Greg Zoeller has done it again.  In 2010, faced with litigation challenging the civil forfeiture law, Zoeller issued an opinion saying that the constitutional language directing that "all forfeitures" are to go to the Common School Fund, didn't include "civil" forfeitures.  It was clearly a politically-motivated advisory opinion to provide cover to the multitude of county prosecutors, i.e. his clients and political supporters, who have for years been illegally pocketing 100% of civil forfeiture proceeds.  Zoeller's opinion on the subject has been ignored by the Indiana Supreme Court and the Governor who both have opined that "all forfeitures" language in the Constitution means "ALL forfeitures."

This time Republican State Senator Tom Wyss asked Zoeller for an advisory opinion as to whether a proposed ordinance considered by the Fort Wayne Common Council that would limit contributions from those doing business with the city, violates Indiana law.  The Attorney General concludes with the brief answer being that "[t]he proposed ordinance, if enacted by the City of Fort Wayne, would be invalid as an attempt to regulate, without specific authority, conduct which is regulated by a state agency."

Note:  A link to the opinion and other posts on the subject can be found at the Indiana Law Blog.

State Senator Tom Wyss
The Attorney General's opinion is written by Matthew Light who, even though he's been an attorney for less than six years, has acquired the lofty title of "Chief Counsel, Advisory and ADR Services Division."  To his credit, Light, for the most part, gets basic home rule concepts correct.  It is applying those concepts to the ordinance that Light gets it all wrong.

Some background is in order.  Local government such as counties, cities, towns, etc. are subdivisions of state government.  Unlike the relationship between the national and state government which is federal in nature, the relationship between state and local government is a unitary one.  Basically that means that local government are sub-units of state government and can only do whatever the state government allows them to do.

Some states, such as Indiana, have decided to tinker with this unitary relationship to make it more federal in nature.  Those states have adopted "home rule" provisions.  Instead of local government only being permitted to act upon the express authority of state government, in a home rule state, local governments can pass ordinances dealing with issues unless expressly prohibited by state government.

Despite home rule, if Indiana expressly withholds power from local government, local government cannot pass an ordinance on the subject.  Further, if the legislature delegates to a state agency the power to regulate certain conduct, then local government is prohibited from acting to regulate that conduct.  These two distinct concepts are somewhat blurred in the opinion Light authors.

First, there is no statute that expressly prohibits local government from adopting an ordinance limiting or prohibiting contributions from contractors doing business in the City.  That exception to the Home Rule power gets disposed of quickly.

Light though concludes that the "regulation of campaign financing, including contributions, is within the statutory authority of the State Election Commission and the subject of specific statutory requirements at [IC 3-9-2 et seq.].  Light concludes the paragraph, peppering his argument with legal citations and argument. 
"It is well established in our law that when the legislature properly enacts a general law which occupies the area, then a municipality may not by local ordinance impose restrictions which conflict with rights granted or reserved by the General Assembly."  Suburban Homes Corp. v. City of Hobart, 411 N.E.2d 169, 171 (Ind. Ct. App. 1980).
Here's the critical next line of the Suburban Homes opinion, a line which Light conveniently leaves out:
"However, it has been observed that where the legislature does not intend to occupy the area, a local ordinance may be sustained where it merely supplements the burdens imposed by the statute with additional requirements that are logically consistent with the statutory purpose. City of Indianapolis v. Sablica (1976), 264 Ind. 271, 342 N.E.2d 853...."
The fact Light omits this language, which supports the proposed ordinance, suggests to me the AG's advisory opinion is politicized, not an objective conclusion about what the law says.

Light continues with the paragraph:
 "We find no statutory authority for a local unit of government to regulate conduct related to campaign financing, including contributions.  In the absence of express statutory authority, local ordinances that impose restrictions that are in conflict with with rights granted or reserved by the Legislature are invalid. City of Indianapolis v. Fields, 506 N.E. 2d 1128, 1131 (Ind. Ct. Ap. 1987).
Pure nonsense.  Indiana is a home rule state.  Local government are not required to have "statutory authority" to act, a fact that Light acknowledges early in the opinion but appears to have forgotten by the end of his legal prose.  Rather, the issue is whether the legislature has expressly prohibited local government from acting in this area or has given an agency general authority to regulate in that area.  As far as the proposed ordinance being in "conflict" with rights granted or reserved to the legislature, Light completely failed to identify any conflict of law in the AG opinion.

There is actually a much easier way to view the legality of the proposed Fort Wayne ordinance in light of home rule principles.  Again, the state has not expressly prohibited local government from adopting the sort of ordinances that Fort Wayne Common Council is considering.  The only issue left is whether the legislature has delegated the power to adopt those sort of regulations to an agency, in this case the Election Commission.   Thus, unless the Election Commission would have the power to adopt the Fort Wayne ordinance, then Fort Wayne is not precluded by the principles of Home Rule from adopting the ordinance.

In pointing to the delegations of authority, the AG's opinion cites IC 3-6-4.1-14(a)(1) and (a)(2)(B), which I have highlighted below:

(a) In addition to other duties prescribed by law, the commission shall do the following:

(1) Administer Indiana election laws.

(2) Adopt rules under IC 4-22-2 to do the following:
(A) Govern the fair, legal, and orderly conduct of elections, including the following:

(i) Emergency rules described in section 16 of this chapter to implement a court order requiring the commission, the election division, or an election board or official to administer an election in a manner not authorized by this title.

(ii) Rules (including joint rules with other agencies when necessary) to implement and administer NVRA.

(B) Carry out IC 3-9 (campaign finance).


A review of those emboldened language and the chapters to which they relate, merely indicate they are simply delegations of power to the Election Commission to enforce the state's election and finance laws.  There is no general grant of power from the legislature to the Election Commission to adopt election and campaign regulations that would give the Commission pwoer beyond those laws the legislature has adopted and directed the Commission to enforce.

To repeat, unless the Election Commission has the authority to adopt the prohibition considered by the Fort Wayne Common Council, then the Council is not precluded from the principles of home rule to pass the ordinance.  I'm sure if the Election Commission tried to adopt a regulation limiting contributions from city contractors in muncipal campaings, there would be screaming that the Election Commission is acting outside of its statutory authority.  And they'd be right.  The Election Commission doesn't have that power.  Because the Election Commission doesn't have that power, the Fort Wayne Common Council does.

It does not trouble me that the Attorney General's advisory opinion is wrong about the law. That happens. Rather what I find troubling is the AG's opinion appears to continue the recent practice of politicizing what should be the objective, nonpoliticized task of advising state and local officials about the law.  The Indiana General Assembly needs to consider strongly whether the Attorney General should continue the role of issuing advisory opinions that are cloaked with the appearance of objectivity, but instead drip of politics.

Disclaimer:  I, like the Attorney General, did not focus on possible First Amendment implications raised by the proposed Fort Wayne ordinance.  I instead focused on the AG's misinterpretation of home rule principles as applied to that ordinance.


Jeff Cox said...

Without commenting on the specifics of the OAG opinion, I'm sorry to disagree with you, but in actuality Indiana is NOT a "home rule" state. Indiana may call itself a "home rule" state and it may have a statute that references "home rule," but when compared with other states that have actual "home rule" it is not.

The Indiana General Assembly is pre-eminent in Indiana. It tells cities and towns what kinds of governments they may have, what kinds of executive officers they may have, what kinds of agencies they may have, the councils they may have, everything. Most of the authority traditionally reserved for cities and towns in other states is already pre-empted by the legislature. Even so, most state agencies and local governments pretend that we have home rule here.

This is why in Ohio you can have multiple forms of city government -- Cincinnati has a city manager type, while Cleveland has a strong executive type -- but you can't in Indiana. Ohio has actual home rule. Practically everything in Indiana has to go through the General Assembly.

Only in Indiana is that considered "home rule." In most states, it is not.

Paul K. Ogden said...


While I agree Indiana is not a pure home rule state, it strongly leans in that direction and the laws explciity call it home rule. Where did the open container law first get adopted? I cities. Where did smoking bans get adopted? In cities. Now the state is talking about adopting it at the state level. Cities until recently had the right to limit the state right to carry handguns beyond the limit in state law.

It's true what you say about cities and towns not being able to choose forms of local government, but that's a limit on home rule, not evidence home rule doesn't exist.

Gary R. Welsh said...

Correct me if I'm wrong, but I thought the AG's office as a matter of policy in the past has refrained from issuing legal opinions on pending legislation.

I know said...

Home rule in Indiana is simply what those in power have and they define the rules of the games.

Corruption, white collar crime, mis-use of government contracts and illegal and forced manipulation and cronyism is what HOME RULE is in Indiana.

Paul even you have stated the courts in Indiana are not the place to settle crimes and make sense of the advocates of justice.

Jeff may be right but the State of Indiana really needs an enema. It is just too bad the federal, state and local officials are afraid of money. Several officials have stated they will not enforce the laws of Indiana because some of the "influential" folks that have money are untouchable.

As Gary Welsh states more problems in Indiana look like Chicago everyday!

Jeff Cox said...


With all due respect, that's like saying becasue the "Democratic People's Republic of Korea" -- otherwise known as "North Korea" -- has "democratic" in its name, it must be a democratic country. It isn't. Same with Indiana and "home rule." Indiana is nowhere near being a home rule state. The legislature pretty much controls everything. And when it finds those rare places where it doesn't -- see, eg, fireworks laws -- it quickly moves to control them.

Whether it's the structure of the government, the types of taxes it can charge, its taxing districts, it's the legislature that makes those decisions, not municipalities. That's not home rule.