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Thursday, December 10, 2015

Ind. Courts - More on: Lawsuit claims RCRA "fix" and ordinances passed pursuant thereto are invalid

In a post earlier this afternoon, the ILB wrote:

...the Attorney General must defend in any lawsuit that challenges the constitutionality of state law.
In other words, the Attorney General must defend this challenge to the RFRA "fix," even though the State is not named in the lawsuit.

Although I was unable to find such a mandate in the Indiana statutes, Attorney General Zoeller himself has written at length about this duty. See this 2015 Indiana Law Journal article by Gregory F. Zoeller, titled "Duty to Defend and the Rule of Law." From p. 515:

[This article] explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law.
A section on "Duty to Defend at the State Level" begins on p. 528.

Posted by Marcia Oddi on December 10, 2015 05:21 PM
Posted to Indiana Courts | Indiana Government