Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client

A nasty dispute has broken out between at least three Republican state senators and Republican Attorney General Greg Zoeller over the AG's decision to concede that Indiana's immigration law should suffer the same fate as the Arizona law, most of which was held unconstitutional by the United States Supreme Court.


State Senator Mike Delph

The state senators, Mike Delph, Brent Steele, both attorneys, and Phil Boots, have filed to intervene in the case.  At the same time they also filed a response to summary judgment, arguing at great length how the Indiana law varies from the Arizona law and why it should be upheld as constitutional.  I attempted to upload the documents onto Google Documents, but they didn't load right.  So instead I am linking to the Indiana Law Blog, which has links to the documents.

Today Attorney General Greg Zoeller fired back with a letter outlining his position.  Hopefully the link will get past the Indianapolis Star's paywall.

The dispute raises interesting legal questions as well as highlights an incredible claim Zoeller makes about his authority as Attorney General.

First let me outline facts leading up to the dispute.  Several plaintiffs brought an action to enjoin enforcement of Indiana's Immigration law, which bill Delph, Steele and Boots co-authored.  The named defendants were the City of Indianapolis, City of Franklin and the Marion County and Johnson County prosecutors.  The City of Franklin was subsequently dismissed from the case.

State Senator Brent Steele

Attorney General Greg Zoeller, on behalf of the defendants, argued that proceedings in the case should be stayed pending the outcome of the Supreme Court's consideration of the Arizona immigration statute.  During the 2011 legislative session, while Indiana's immigration bill was being considered, Zoeller announced his signing of the "Indiana Compact," a joint statement by religious, business and education leaders that illegal immigration is a responsibility of the federal government and states did not have the authority to act on the issue.  The legislature defied Zoeller and passed the immigration law anyway.

In June 2012, the United States Supreme Court decided Arizona v. United States, finding most of the Arizona statute to be unconstitutional.   Zoeller then announced that, because of that decision, he wouldn't defend parts of the Indiana law in court. Senators Delph, Steele and Boots, however, say that Indiana's law is different from Arizona's and should at least be defended in court, a legal responsibility of the Attorney General.  Zoeller thus far has refused to budge.  As a result, the senators filed a motion to intervene in federal court as an interested third party.



State Senator Phil Boots

From the outset, I voiced concerns about the immigration bill.  My concern, however, was the merits of the proposal, not the legislature's authority to adopt the law.  I don't believe, as some do, that the federal government has completely preempted the immigration legal arena as claimed by Zoeller in signing the Indiana Compact.  Even the United States Supreme Court did not find 100% preemption, the position of Zoeller and the other signers of the Indiana Compact.

It is the duty of the Attorney General of the State of Indiana to argue to uphold the validity of the laws passed by the Indiana General Assembly.  If the Attorney General feels he has a conflict, or for some other reason doesn't feel comfortable going forward with the representation, the law allows him to retain other counsel to act in his place.  In taking the positions Zoeller has, he needs to do the right thing now and recuse himself, appointing legal representation that can offer a good faith defense of the statute.

That is actually a somewhat separate matter from the right of the state senators to intervene.  The standards for intervening are set forth in Rule 24 of the Federal Rules of Civil Procedure.  The fact that Zoeller is refusing to defend the statute does strengthen the senators' case for intervention under that rule.

The dispute though and Zoeller's letter, sheds light on the surprising view the Attorney General takes toward his powers.  Let me quote from the letter:

Sometimes my state clients mistakenly believe they are responsible for making legal decisions about a case, as a private client who hires a private lawyer might be. In fact that responsibility rests not with the client but solely with the attorney general. Part of the AG’s job description is to reconcile conflicting legal views of multiple officials and harmonize our state’s legal position before the courts, so that we don’t have competing viewpoints creating chaos for judges in choosing which voice to listen to. Ultimately, my true client is our system of justice and the people of Indiana, rather than individuals who hold government positions.

Attorney General Greg Zoeller

Let me spell out in English what the Attorney General is saying. Zoeller takes the position that he is not only the attorney for the State of Indiana, he is also the State of Indiana. Zoeller takes the position he is not only the attorney, he is also the client.  According to Zoeller, it does not matter if Governor Mitch Daniels calls him up and says he wants to settle a case involving the State.  Zoeller's position is that he, and he alone, decides whether to settle a case...the Governor's position does not mattter.

The argument that because state government consists of many different entities, the AG has complete authority over state officials and agencies when it comes to litigation and doesn't have to listen to "clients" is nonsensical.  Almost all of the numerous executive agencies fall directly under the administrative authority of the Governor.   If the AG is unhappy that a recalcitrant agency chief won't follow his sage advice on litigation, the AG can always call the Governor and ask that the agency director be overruled.  The AG mistakenly thinks he has the power to overrule his own clients and take positions contrary to their wishes, while doing so in their name in court.

It is the same thing with agencies in the other branches.  There are individuals who supervise those agencies. They are the ultimate clients of the Attorney General.   The Attorney General is not the client.

Zoeller's position, taken to its logical conclusion, would give him extraordinary authority in our government system.  He could overrule the Governor and the Indiana General Assembly.  Fortunately, our system of government is not set up like that.