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Tuesday, February 12, 2013

Ind. Law - Interesting commentary on SB 280 by 2 Indiana blogger/attorneys

Doug Masson points to SB 280, which permits an individual legislator to intervene as a party in an action where the constitutionality or enforcement of a state statute he authored is being challenged if he finds finds that the statute is not being adequately defended. Masson writes:

A member of the General Assembly, acting alone, is just an ordinary citizen. Absent the legislative process and requisite votes, the laws he writes are just words on a page. There is nothing magic about them absent the consent of the body. And, furthermore, there is nothing magic about the fact that an individual legislator came up with the idea and wrote those words on the page. He or she has no individual ownership in the legislation such that he or she should have standing to take control of the litigation beyond the right given to the rest of us citizens.

Acting in concert with the rest of the body, the legislator is entitled to exercise power. Outside of that body, he or she is just another person. This bill would undermine that notion.

Paul Ogden points to the same proposal and writes in part:
It is easy to get distracted by the underlying immigration issue and miss the bigger issue involved, an issue that extends far beyond this particular case. 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.

A similar dispute over who speaks for the State of Indiana at the national level appeared to be breaking out earlier this year.

Ogden then points to the ILB post of Jan. 11th on SB 36.

Posted by Marcia Oddi on February 12, 2013 11:50 AM
Posted to Indiana Law