Tuesday, February 12, 2013

Bill Highlights Tension Between Indiana General Assembly and Attorney General

Senate Bill 280, which will be heard in the Indiana Senate Judiciary Committee tomorrow, highlights a disagreement between the Indiana Attorney General Greg Zoeller and the members of the Indiana General Assembly, regarding the power of the Attorney General.  Let's start by citing the synopsis from the bill authored by Senator Mike Delph (R-Carmel):
Sen. Mike Delph
"Defense of legislative lawsuits. Provides that, if: (1) the constitutionality or enforcement of a state statute is being challenged; and (2) a member of the general assembly who is the first author of a bill finds that the statute is not being adequately defended; the first author has standing to intervene as a party in the action. Permits the second author to intervene if the first author is no longer a member of the general assembly, and permits the speaker of the house of representatives or the president pro tempore of the senate to appoint a member to substitute for the member who intervened if that person ceases to be a member of the general assembly. Provides that a member with standing to intervene may employ an attorney to represent the member, requires the member to seek an attorney who will represent the member on a pro bono basis, and specifies that if the member is unable to obtain a qualified attorney to represent the member on a pro bono basis, the attorney general shall pay the reasonable costs and fees related to the representation. Requires the attorney general to forward a notice relating to a challenge of the constitutionality of a statute to the legislative council and first author of the bill enacting or amending the statute."
Sen. Phil Boots
The dispute that resulted in SB 280 began when Delph, Phil Boots (R-Crawfordsville) and Brent Steele (R-Bedford) authored a bill a couple years ago that made it easier for local police to arrest illegal immigrants, put new penalties on companies that hire illegal workers and made it illegal for a company or agency to accept a foreign identification card as official ID.  While a federal lawsuit was pending as to the Indiana law, the U.S. Supreme Court handed down an immigration case out of Arizona that arguably put Indiana's law in jeopardy.  AG Zoeller wanted to wave the white flag on Indiana's immigration law which law he lobbied against being enacted. The aforementioned Senators, as well as other legislators, disagreed saying that the Indiana law could be distinguished from the parts of the Arizona law the Supreme Court had found unconstitutional.  The Senators argued that the AG had a duty to defend the law and that if he wasn't going to do it, he should step aside and let the Senators obtain counsel to defend the law.

Sen. Brent Steele
It should be pointed out that the Indiana law does allow the AG, when he is uncomfortable participating in a case, for whatever reason, to step aside and appoint new counsel to represent the State.  (I worked for Attorney General Linley Pearson who often utilized this section to get other counsel for state agencies and officials when they wanted to make legal arguments with which he disagreed.)  AG Zoeller, however, did not want to do that in this case and, in fact, has always been opposed to utilizing the opt-out provision in the Indiana Code.  When AG Zoeller refused to defend the Indiana immigration law in federal court, the State Senators sought to intervene to do so but were relegated by the court to amicus "friend of the court" briefing status.  This bill would fix this problem by allowing them to intervene as the actual representative of the State of Indiana.

It is easy to get distracted by the underlying immigration issue and miss the bigger issue involved, an issue that extends far beyond this particular case.  Attorney General Zoeller has consistently taken the position that the Attorney General position is "unique" because of the need to "harmonize the law" among the several agencies and entities.  In doing so, he has claimed he has absolute authority when it comes to deciding how legal issues involving the State of Indiana are handled.  Thus, it doesn't matter if a state agency wants to settle a case, or whether the Governor wants to take a certain legal position or the General Assembly wants a law defended, the Attorney General, and only the Attorney General, gets to decide, on behalf of the State, what position will be taken.   This is a position that essentially makes the Attorney General not only the attorney for the State of Indiana, but also the client.

Zoeller's position regarding the authority of the Attorney General is certainly not shared by everyone.  In addition to the State Senators in this case, most of the attorneys I've talked to do not agree that the Attorney General has an unfettered right to decide the State of Indiana's legal position. Rather they see the Attorney General as the attorney for the State of Indiana with a duty to follow his state client's wishes as long as they are within the ethical boundaries of legal representation.   As far as multiple state agencies creating a mishmash of legal approaches, there is a singular boss of those agencies, the Governor of the State of Indiana.  The AG could always appeal to the Governor to bring a consistent approach to how the agencies approach litigation.

Attorney General Greg Zoeller
A similar dispute over who speaks for the State of Indiana at the national level appeared to be breaking out earlier this year.  Attorney Marcia Oddi, publisher of the Indiana Law Blog and who has had a long career in Indiana's executive and legislation branches, published an article titled "Ind. Gov't. - Who Speaks for Indiana at the Federal Level" on legislation that was introduced allowing the AG to place a deputy in Washington, D.C. with particular responsibilities.  Her article, which also contains links to stories she wrote in 2009, 2010 and 2012 on the subject of who speaks for the State of Indiana at the federal level, identifies Senate Bill 36 as one of the bills involved in establishing the D.C. based deputy.  That bill included this directive for what the responsibilities that this Deputy Attorney General would have:
1) Review and monitor legislation, regulations, administrative actions, and other activities of the federal government that may affect Indiana. 
(2) Take any action the attorney general finds necessary and appropriate to respond to, address, or influence any proposal, enactment, promulgation, action, order, adjudication, or activity described in subdivision (1).
My reading of the highlighted language of Senate Bill 36 opens up the possibility of having the Governor and Attorney General advocating, on behalf of the State of Indiana, completely different positions as to proposed federal legislation and the promulgation of federal rules.  However, this potential conflict appears to have been averted as the bill was amended in committee to eliminate the lobbying language contained in subparagraph #2 above.   SB 36 is now set for third reading in the Indiana Senate.

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