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Sunday, September 09, 2012

Ind. Courts - More on "Indiana legislators ask federal judge to allow them to defend state's immigration law"

Updating this ILB entry from Sept. 5th, and this Sept. 6th entry with the filings from the 3 state senators, here is a story from Niki Kelly of the Fort Wayne Journal Gazette, which appeared in Friday's paper, headed "Zoeller defends actions." Some quotes:

Indiana Attorney General Greg Zoeller came out swinging today in defense of his decision to back away from an Indiana immigration law he believes is unconstitutional.

Zoeller in July said he would recommend that U.S. District Judge Sarah Evans Barker strike down most of the portions of the Indiana law passed in 2011, which enables police to make warrantless arrests based on certain common immigration documents.

The attorney general believes a U.S. Supreme Court ruling rendered those sections of the Indiana law invalid when it ruled on a a similar Arizona statute.

But not everyone has accepted his judgment, and he has been a target on some blogs.

"Some people questioned whether this decision violates my obligation to my state clients. Some have even questioned my professional ethics as an attorney," Zoeller said in an editorial piece he released to newspapers around the state Thursday. "As state government's lawyer, the AG's Office represents multiple 'clients' who all hold different views on important legal issues. For all of us in state government, our first responsibility is to the Constitution and the people.

"I have had the unenviable task of explaining this fact to government officials who disagreed with my decisions. I respect their views; but the oath I took as AG means I must acknowledge that at times the law is not what we might want it to be, and must shepherd state legal resources in a responsible manner."

Here is the entire Zoeller letter, as it appeared in the Indianapolis Star on Sept. 8th.

The blog Ogden on Politics today has a long entry headed "Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client," it is worth reading. Ogden's entry highlights this part of the AG's letter, which also caught my attention:

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.
Some ILB observations:

(1) Here are a couple past examples where the AG did not appeal court decisions voiding state statutes. July 27, 2008 - "AG Carter will not appeal either of two recent district court rulings voiding 2008 legislation." Sept. 13, 2006 - "State won't appeal decision tossing school petitions."

(2) Re "the AG makes all legal decisions about a case." Often "legal" and policy intertwine. Where to draw the line? One recent dispute involved the Attorney General and the Indiana Gaming Commission - see this June 29, 2009 ILB entry. See also the note at the end of this entry, re Sendak v. Marion C. Sup. Ct.

(3) The AG is a separately elected state official. His office is statutory, it is not in the constitution. It appears not to be a part of any of the three branches of state government - "The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial" - Art. 3, Sec. 1.

(4) The current office of AG was created by statute in the early 1940s. There have been times when the governor and elected attorney general of Indiana were of different parties. And the office has not always been elective -- under earlier statutes, the attorney general was appointed by the Indiana governor. See this March 30, 2010 ILB entry, which began:

Is the attorney general of a state and his or her office a part of the executive branch, representing the state at the behest of his client, the head of the executive, the governor?

Or is the attorney governor of a state independent of the three branches of governor, making legal, and hence policy decisions, on her own -- decisions such as when to appeal a case, when to challenge a law, when to file or join an amicus brief with the SCOTUS?

Does it matter if the attorney general is separately elected, as opposed to appointed by the governor. Does it matter if his office is created by statutes, or by the constitution of the state?

(5) In recent years, the General Assembly has, generally at the behest of the AG, enacted legislation to expand the powers of the office in nearly every session. See, for example, this ILB entry from March 3, 2010.

(6) "Attorney General Greg Zoeller is arguably Indiana’s second most-powerful elected figure." That was the headline to this Sept. 11, 2011 entry quoting from a Fort Wayne Journal Gazette story.

(7) "Who should decide Indiana's position on national legal issues? Who should know?" That was the heading to this ILB entry from August 23, 2012, re the AG authoring, or joining, numerous amicus briefs on behalf of the State of Indiana in high profile SCOTUS or Circuit Court cases. In doing so, the AG is not "defending a lawsuit," to quote a phrase from Sendak, discussed in the note below.

Note: IC 4-3-1-2, which was part of the Acts of 1852 and remains in force today, provides that the Governor:

... may employ counsel to protect the interest of the state in any matter of litigation where the same is involved; and the expenses incurred under this section, and recapturing fugitives from justice, may be allowed by him and paid out of any money appropriated for that purpose.
However, in 1978 out Supreme Court, in Sendak v. Marion Co. Sup. Ct., wrote:
Respondents also contend that the enforcement of the consent requirement here violates IC 4-3-1-2, which gives the Governor the power to employ counsel in litigation where the State has an interest. The relator contends that the 1941 Act re-creating the Attorney General as an elected officer superseded this statute.

When two statutes are in conflict the earlier statute will be impliedly repealed and the latter enactment will control. Houtchens v. Lane(1965), 246 Ind. 540, 206 N.E.2d 131. In 1852, the legislature passed what is now IC 4-3-1-2, at a time when there was no Attorney General in this State. The office of the Attorney General was created by a series of later statutes, beginning in 1889. These statutes as a whole, and particularly IC 4-6-2-11.5 and IC 4-6-5-3, must be construed as giving the Attorney General the sole responsibility for the legal representation of the State. There clearly is an irreconcilable conflict between the statute giving the Governor the power to employ counsel in litigation and the statute setting forth the duties of the Attorney General and hence the latter enactments must prevail. Therefore, to the extent that IC 4-3-1-2 is inconsistent with the Attorney General's duties as prescribed by law, it must be disregarded.

Finally, respondents contend that the consent requirement is unconstitutional because it conflicts with the Governor's constitutional responsibility to exercise executive power. We recognize that the executive power of the government is vested not in the various departments and agencies, but in the Governor alone. Tucker v. State, (1941) 218 Ind. 614, 35 N.E.2d 270. However we see no relationship between the execution of executive power and the legal defense of a lawsuit against the State. In defending a lawsuit the Attorney General is not dictating policy or directing the State, but is merely defending the State. Furthermore, the legislature has chosen to vest the responsibility for the legal representation of the State in the Attorney General. This Court cannot disregard so clear an expression of that body.

We therefore hold that the statute is constitutional and does not infringe upon the executive power vested in the Governor. [emphasis by ILB]

I remember when this case was decided and it amazed me then, and continues to do so today. I read it to mean that the General Assembly is free to create separately elected state offices and distribute various powers of the Governor amongst them. But this is the very type of action that Tucker forbad.

The issue came up again in 2009 in the dispute referred to earlier (#2) between the AG and the Indiana Gaming Commission re The Foundations of East Chicago dispute.

Posted by Marcia Oddi on September 9, 2012 10:51 AM
Posted to Indiana Courts