Monday, May 23, 2016

Will Candidates for Indiana Attorney General Continue the "Zoeller Doctrine" Giving AG Absolute Veto Power over State Laws?

Fresh out of law school, I had the opportunity to work as a Deputy Attorney General under then Attorney General Linley Pearson. During Pearson's tenure he pointed to a provision in Indiana law that says that if the Attorney General is uncomfortable representing a state party or defending a state law in court, the AG could defer to other legal counsel who then represents the state.  There were times Pearson used the law to defer legal representation to other counsel.

The tenure of Attorney General Greg Zoeller, which is set to conclude this year, brought for what I refer to as the "Zoeller Doctrine," the idea that when it comes to litigation, the Attorney General is in fact the attorney and the client, i.e. he doesn't have to do what the people he represents in court tells him to do.  I highlighted Zoeller's position in a story I wrote last year:
Attorney General Greg Zoelelr
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.
Last session, state senators Mike Delph, Brent Steele and Mike Delph introduced a bill requiring the Attorney General to step aside for legislators to employ other counsel when the AG wasn't adequately defending a statute in court. This was a reference to the dispute over Zoeller's refusal to defend Indiana's immigration bill.
While that bill did not pass, a bill has been introduced in the State Senate this session that takes direct aim at addressing Zoeller's claim that unlike every other attorney in the State of Indiana, he is not obligated to actually do what his government clients want.  The new language in Senate Bill 257, which is authored by Republican Delph and Steele and Democrat Timothy Lanane, states:
When the attorney general represents:
(1) the state;
(2) a state agency;
(3) a political subdivision; or
(4) any other party;

in a judicial or administrative proceeding, the attorney general owes the same obligations to that party that any other attorney owes to a client under the rules prescribed by the supreme court.
In 2013, when the Pence administration was in its infancy, Zoeller even had a bill introduced in the Indiana Senate which would have given the Attorney General an office in Washington, DC where an employee of his office could lobby Congress and federal agencies.  I wrote about that on my blog as well.  I wrote about it on my blog.
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.
Four people have filed for the Republican nomination for Attorney General:  State Senator Randy Head, Elkhart County Prosecutor Curtis Hill, Former Attorney General Steve Carter, and Assistant Attorney General Abby Kuzma.  On the Democratic side, Lorenzo Arredondo, a retired circuit court judge and former teacher is running.  The question remains: will the next Attorney General promise to ensure that ALL the laws passed by the Indiana General Assembly are defended by legal counsel, contrary to what has happened during Attorney General Zoeller's tenure?

See also:

Saturday, January 11, 2014, State Senate Bill Seeks to Check Power of Indiana Attorney General Greg Zoeller

Monday, December 30, 2013,
Attorney General Zoeller Encroaches on Governor's Power as He Lobbies for More Federal Funding for School Resource Officers  

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


Anonymous said...

One again explaining why the should be an appointed office

Anonymous said...

Wasn't Zoeller Brizzi's roommate when they both worked for the Establishment in DC?