Thursday, July 3, 2014

Attorney General Greg Zoeller Right, But a Hypocrite, On Duty to Defend Indiana's Marriage Law

All over the social media, liberals are screaming at Indiana Attorney General Greg Zoeller for his decisions to appeal federal Judge Richard Young's decision that Indiana's marriage law limiting the institution to a man and woman violates the United States Constitution.  To which, Zoeller responds with a letter published in the Indianapolis Star, a letter in which he says his job is to defend Indiana's laws:
Though I don’t make state laws, I take seriously my obligation to defend the statutes the legislature passes from challenges plaintiffs’ lawyers file, both in trial court and on appeal. We can’t abandon our state clients or fail to defend the statute, duties that some editorials have not grasped.   
... The women and men who serve in the Attorney General’s Office and who have a duty to represent our state in court — whether the state prevails or not — are simply fulfilling their obligations as public servants.   
... Our adversarial system of justice ensures both sides of a controversy are fully aired and that a decision is not made until both sides have had the opportunity to advocate their viewpoints zealously.
Zoeller comments are exactly on the mark.  Those who favor Zoeller not defending the law on court, need to be aware that what they are saying is that the Attorney General should be able to veto laws passed by our General Assembly by not defending those laws in court, a veto much more powerful than what our Governor has by the way.   I don't think they really want the AG bestowed with that type of power.  Yet that's exactly what they're arguing for when they suggest the Attorney General should not defend the law before the 7th Circuit.

Zoeller's problem is that he's a hypocrite when it comes to his office's powers and obligations. Contrary to the sentiments above, Zoeller has also claimed that he has an absolute right to choose to defend, or not defend, state laws in court.  Zoeller refused to defend Indiana's expungement law when it was subject to a constitutional challenge oddly by a state official, the Morgan County prosecutor.

Republican Zoeller has also refused to defend Indiana's immigration law in court, a position that has so riled Republican state senators that they have in the last two legislative sessions introduced a bill to give the General Assembly the right to appoint an attorney to defend a law that the AG refuses to defend.  In response to that bill, Zoeller in the Fall of 2012 penned a letter in which he defended his decision to not defend that state's immigration law"
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.
Here's what I wrote back in 2012 about that position:
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 matter. 
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. 
Same sex marriage advocates are dead wrong on criticizing Zoeller for defending Indiana's marriage laws,  He's only doing his job and to argue otherwise is to argue for the AG to have a veto over state laws.  On the other hand, Zoeller is definitely a hypocrite when it comes to his office's responsibility to defend the laws of the State of Indiana.


Brad Jones said...

Your position is ludicrous. An Attorney General does not have a duty to defend every law passed by the legislature. In fact, he would be shirking his duties if he did defend a law that he knew was unconstitutional. In modern times, many state legislatures have passed laws that are clearly unconstitutional under Roe v. Wade. Most Attorneys General refused to appeal any trial court decision to not enforce these laws. The same thing happened to civil rights laws. The political or those who want to take the easy way out do what Zoeller did.

Eric Hollister said...

I agree with Ogden. His position is on point and supported by perfect illustration.