Monday, October 28, 2013
Ind. Courts - Still more on: Morgan County Prosecutor to challenge expungement
Updating this ILB post from this morning, and looking again at Tim Evans Star story about the Morgan county prosecutor's challenge to the constitutionality of a state statute, and looking again at this quote:
Regardless of how Morgan Circuit Judge Matthew Hanson rules on Sonnega’s challenge, the verdict is likely to be appealed.This seems odd. In 2010 the Attorney General had introduced changes to the statutes which the ILB wrote about at least twice. A Feb. 2, 2010 post discussed SB 394, which would significantly expand the authority of the attorney general. The bill added a new chapter to the law regarding the "Authority of the Attorney General to Intervene in Cases Challenging the Constitutionality of a Statute, Ordinance, or Franchise." It stated in part:
So far, the attorney general, who typically defends state laws, has stayed out of the case. An appeal would set up an interesting scenario because the attorney general also represents prosecutors in cases that go to the Indiana Court of Appeals or state Supreme Court.
Schumm said that is one of the oddest things about the case — basically pitting one arm of the state against another.
Bryan Corbin, a spokesman for the attorney general, said the office would step in to defend the law if Hanson rules in favor of the prosecutor.
“It is the duty of the Office of the Attorney General to defend a statute passed by the Legislature if it is found unconstitutional by a trial court,” Attorney General Greg Zoeller said in a statement to The Star.
If the constitutionality of a state statute, ordinance, or franchise affecting the public interest is called into question in an action, suit, or proceeding in any court to which any agency, officer, or employee of the state is not a party, the court shall certify this fact to the attorney general and shall permit the attorney general to intervene on behalf of the state ...This March 3rd, 2010 post, reporting that the bill was on its way to the governor, quoted the new SEA's digest:
Authorizes the attorney general to intervene in a declaratory judgment action in which a statute, ordinance, or franchise is alleged to be unconstitutional. Provides that a court must notify the attorney general if the constitutionality of a state statute is called into question, and permits the attorney general to intervene in the case to present evidence and arguments concerning the constitutionality of the statute. Permits the attorney general to intervene in a case in which a claim or defense is based on a statute or executive order administered by a state officer or agency. Authorizes the attorney general to file an amicus curiae brief without the leave of the parties or the court.The post also quotes the bill's sponsor as saying:
This is an Attorney General's bill, it's a notice of the Attorney General any time the state law is claimed to be unconstitutional. In the past year there have been at least six cases when they didn't receive notice.The resultant law is now found at IC 34-33.1-1.
Presumably, the attorney general might elect not to step in when a constitutionality of a law was challenged in a trial court where he believed his county prosecutor could adequately defend it. But in this case, it is the prosecutor who is challenging the constitutionality of a state law the attorney general is sworn to defend ...
Posted by Marcia Oddi on October 28, 2013 12:46 PM
Posted to Indiana Courts