Friday, October 18, 2013

State v. State?; Will Indiana's Attorney General Defend the Expungement Statute Against Challenge By Another State Official?

The Indiana Economic Digest reports:
Morgan County Prosecutor Steve Sonnega will be asking Morgan County Circuit Court Judge Matthew Hanson to declare a law that allows the expungement of criminal records
Morgan County Prosecutor
Steven Sonnega
to be unconstitutional.... Combs is asking that his 2006 criminal conviction for reckless driving, unreasonable speed, be expunged.

In August of 2005, Combs, then 32, was charged with operating a vehicle while intoxicated as a class A misdemeanor, operating a vehicle with a blood alcohol content of .08 percent as a class C misdemeanor, public intoxication and reckless driving, both class B misdemeanors.

In 2006, Combs, who was represented by John Boren, accepted a plea deal to plead guilty to the reckless driving charge and be sentenced to 180 days in jail, which was suspended except for six days to serve and nine months probation. The other three charges were dismissed.

Sonnega contends the plea agreement is a contract between the accused and the state. In cases where there is a victim, that contract could involve the victim.
Sonnega said the Indiana Constitution bars the legislature from interfering with legal contracts between parties. 
The prosecutor said the law, which went into effect July 1, allows all misdemeanors to be expunged regardless of circumstances. It allows some C and D felonies to be expunged.
Sonnega said he thinks the law is a violation of the separation of powers because it takes away the court’s ability to decide on a case-by-case basis to determine if a person should have their criminal history expunged.
Here is the problem.  Prosecutor Sonnega represents the State of Indiana.   The State of Indiana, through its legislature, passed the expungement bill.  The Governor signed the bill into law.  Who then defends the law?  That task falls to Indiana Attorney General Greg Zoeller.

If it were a victim challenging the law that would be one thing.  However, here you have an elected representative of the State of Indiana challenging a statute passed by the State of Indiana, which presumable will be defended by the Attorney General, the attorney for the State.  Indeed when there is a constitutional challenge, the attorney commencing that challenge has the duty to serve the Attorney General in order to allow him to represent the State in the litigation.
Indiana Attorney General
Greg Zoeller

Throughout his career, Attorney General Greg Zoeller has been very close to the state's prosecutors.  I would imagine that Sonnega and Zoeller, both Republicans, communicated against this constitutional challenge. Zoeller may very well support Sonnega's legal challenge.  The question then becomes whether the Attorney General of Indiana will defend a law passed by the Indiana General Assembly and signed into law by the Governor.

As I've noted on these pages before, Indiana law provides an opt out provision for the Attorney General when he feels uncomfortable defending a law in court. That law allows the appointment of an attorney to represent the State of Indiana in place of the Attorney General when the Attorney General declines representation as my old boss AG Linley Pearson did from time to time.  Yet in the past, on matters such as Indiana's immigration law, Zoeller has refused to defend duly enacted laws in Court and refused to allow the appointment of an attorney who would do so.

It is not clear yet, but perhaps Sonnega's challenge suggests a continuation of Zoeller's troubling belief that he is not only the attorney for the State of Indiana, but that he is the State of Indiana, i.e. that he is both attorney and client.   That position says is that it does not matter if the Governor or the Indiana General Assembly takes a position contrary to his on a proposed or enacted law, the Attorney General and only the Attorney General gets to decide the issue on behalf of the State.  I have dissected previously Zoeller's stated reasons for holding this theory, why it is flat-out wrong, and why it represents a dangerous encroachment on the power of the Governor and the Indiana General Assembly.

Hopefully the Attorney General's Office will offer a vigorous defense to the constitutional challenge to the expungement statute.


Unigov said...

Zoeller is useless. His current priority is drug-testing of pregnant women.

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