Indiana Attorney General Refuses to Defend the Constitutionality of Expungement Law

Tim Evans of the Indianapolis Star has a lengthy piece about the challenge by the Morgan County Prosecutor Steven Sonnega to the constitutionality of Indiana's expungement statute:

Morgan County Prosecutor
Steven Sonnega

Sonnega’s concern, which prompted him to challenge the constitutionality of the law, centers on the legislature’s use of “shall,” rather than “may,” in describing how a judge can rule on an expungement request. In legal lingo, “shall” is a must-do directive, while “may” denotes some degree of judicial discretion.

The Legislature over-stepped its Constitutional authority,” the prosecutor wrote in a court filing this month. “when it used the term ‘shall’ as opposed to ‘may.’”

Something more than an esoteric squabble over the nuances of legal terms is driving Sonnega’s action. His underlying concern is for the victims in cases in which the people who did the crime are seeking an expungement.
The law, which took effect July 1, fails to take into account victims’ rights and interests, Sonnega said. That failure, he said, violates the Indiana Constitution’s requirement that “crime victims be treated with fairness, dignity, and respect throughout the criminal justice system.”

The article proceeds to discuss the constitutionality as well as the merits of the statute.  What I found most interesting though was the discussion of the duties of the Attorney General at the end of the article:

So far, the attorney general, who typically defends state laws, has stayed out of the case. An appeal would set up an interesting scenario because the attorney general also represents prosecutors in cases that go to the Indiana Court of Appeals or state Supreme Court. 

Schumm said that is one of the oddest things about the case — basically pitting one arm of the state against another. 

Bryan Corbin, a spokesman for the attorney general, said the office would step in to defend the law if Hanson rules in favor of the prosecutor. 

It is the duty of the Office of the Attorney General to defend a statute passed by the Legislature if it is found unconstitutional by a trial court,” Attorney General Greg Zoeller said in a statement to The Star. 

While we respect the views of county prosecutors, we believe that changes to statutes should be brought back before legislators to resolve policy questions.”

Zoeller is tossing out a red herring. Sonnega's challenge is not that the law is bad policy, but rather that it is unconstitutional.  In his statement, Corbin appears to suggest that the Attorney General's duty to defend the constitutionality of the law only kicks in at the appellate level.  That is flat-out wrong.  The Attorney General has a duty to defend the constitutionality of laws passed by our General Assembly from the outset.  (Pursuant to this duty, state law obligates litigants including a constitutional challenge in their complaints to notify the Attorney General so the AG can defend enter at the trial level to defend the constitutionality of the law.) It is important that the AG begin the defense of the constitutionality of a law at the trial level as that is where the evidentiary record is set, which record is often critical on appeal.  Perhaps more importantly, legal arguments could be waived on appeal if not made at trial.  Much of the appellate strategy is set by what happens at trial.

Attorney General
Greg Zoeller

The procedural posture of this case is bizarre.  You have Prosecutor Sonnega, as an attorney representing the State of Indiana, arguing against the State of Indiana by asking that the law be declared unconstitutional. On the other side, you have only the criminal defendant standing up for the constitutionality of the state law.  Meanwhile you have the State's Attorney General, who is obligated to defend that state law, sitting on the sidelines. What should have happened in this case is that the court allow a victim to intervene to challenge the law, while the Attorney General comes in to defend the law.  Most certainly a prosecutor, a state official, should not be allowed, in his official role, to challenge the constitutionality of state criminal statutes.

This unfortunately is yet another time that the Attorney General has refused to defend in court a law passed by the Indiana General Assembly.  This also happened with the state's immigration law.  If AG Zoeller is uncomfortable with defending a state law in court, then he should use the "opt out" provision in state law that allows him to appoint outside counsel to defend the challenged state law. While that was an option used by previous Attorney Generals, Zoeller refuses to do so, claiming an absolute right to not defend state laws he does not agree with in court.

It should be noted that Zoeller's position with respect to the expungement law and immigration is inconsistent to a statement he made with respect to his duty to defend Indiana's law against same sex marriage:

...But my duty as Indiana Attorney General is to represent our state and to uphold and defend our state statutes when challenged, not to represent my personal views or what polls might suggest is popular opinion.

The obligation of attorneys general to defend existing statutes has been brought into question in these two Supreme Court cases, in that the U.S. attorney general and the California state attorney general are not defending their own federal and state laws that are being directly challenged.  To make things more confusing to the public, the President, who has stated that his personal views have evolved over the past few years, has decided to have the Justice Department’s U.S. Solicitor General argue against upholding DOMA at the Supreme Court.  He has expressed through his Justice Department’s legal filings his own opinion that DOMA is unconstitutional.

I view my duty differently. As Indiana Attorney General, I don’t get to define marriage or vote on legislation. Instead, as state government’s lawyer I am obligated to defend our state’s laws passed by the people’s elected representatives in the Indiana Legislature. Our state’s legislative branch has the policy-making authority to license marriage within our state’s borders using the traditional marriage definition, and I will continue to defend their legal authority in court as necessary.

Rather than presuming to decide the constitutionality of our laws by leaving them undefended, I will uphold my responsibility to defend them and instead let the judicial branch decide if they are constitutional, as is its role.

Attorney Zoeller will aggressively defend the constitutionality of Indiana law in court...unless it is a law he doesn't like.

See also:

Saturday, September 8, 2012, Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client