Tuesday, March 25, 2014

Attorney General Zoeller's Press Release on Duty to Defend Indiana's Marriage Law Ignores His History of Refusing to Defend Laws He Does Not Like

In a press release yesterday, Indiana Attorney General Greg Zoeller articulated his office's philosophy that Indiana laws deserve to be defended in court and, indeed, that is the job he was elected to do:
Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. As Indiana attorney general, I have been asked why my office is defending the statute in court when some AGs in other states are not defending their states’ traditional marriage laws from similar lawsuits. I explain that I took an oath to represent and defend Indiana’s state government and its existing statutes. I don’t make the laws – that’s the Legislature’s job – but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.
Attorney General Greg Zoeller
This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the State of Indiana is sued, you – the taxpayers and citizens of the state – are really being sued collectively, and you are entitled to counsel. The correct course of action is for the attorney general to provide a good-faith defense – within the resources already available – until and unless the U.S. Supreme Court decides to the contrary. The justice system cannot work if one side is not represented by counsel or if the attorneys presume that they are judge and jury in their own cases and fail to zealously advocate for their clients.
I agree totally with Zoeller.  Those who want the Attorney General not to defend Indiana law are going down a very dangerous road. If we start allowing our Attorney General to pick and choose which laws he will defend in court that gives him a absolute veto over any law passed by the Indiana General Assembly and signed into law by the Governor.  It makes the Attorney General the most powerful politician in the state.
My problem with Zoeller's press release is that it reeks with hypocrisy.  A few years ago, Zoeller refused to defend the Indiana immigration law in court letting it be declared unconstitutional at the district court (trial) level.  As several attorney members of the Indiana Senate pointed out in exhaustive detail, the Indiana law was different from Arizona's that was declared unconstitutional.  Yet, Zoeller, who vehemently opposed the law when it was passed, told his attorneys to not offer any defense in federal district to the claim it was unconstitutional. Such a position riled the feathers of a few state senators and still does today.
A couple sessions ago, the Indiana General Assembly passed a new new expungement law which let those convicted of crimes clear their record of old convictions thus allowing them to do things like get jobs more easily.  In November 2013, the law challenged as being unconstitutional by Morgan County Prosecutor Steve Sonnega.  The case featured the odd situation where a state official, Sonnega, was challenging the constitutionality of a state law, a situation which would have put the state on both sides of the issue...except for the fact the AG decided not to put up a defense.  With the state absent  from defending the law (the law requires the AG be served and given the opportunity to defend at the trial level the constitutionality of a law), Morgan Circuit Court Judge Matthew G. Hanson found that the section of the expungement law addressing victim input "violates the Indiana Constitution" but because there was no real victim involved in the litigation the challenge failed.  If Sonnega had simply had crime victims as plaintiffs instead of the State he would have undoubtedly succeeded, especially since the constitutionality of the law was not being defended by the Attorney General.
Zoeller's press release also completely ignores the Indiana law provides an option for the Attorney General to step aside to let other counsel represent the state when the Attorney General feels he is unable to offer a defense to the law.  Yet Zoeller has steadfastly refused to exercise that option and, in the immigration case, steadfastly fought the Senators attempt to secure other representation to defend the law in court. Zoeller is using his position of legal counsel to the State to veto laws he does not like - immigration and expungement - by simply not defending them in court.  That, as he points out in his press release, is wrong.  It's too bad he doesn't follow the sound philosophy he lays out in the press release.
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