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Thursday, August 18, 2016

Ind. Courts - Still more on: Hamilton Co. judge" to hear conservatives' lawsuit challenging RFRA fix" [Updated almost immediately]

Updating this ILB post from Aug. 15th, about the lawsuit challenging the RFRA "fix" and the ordinances that the cities of Carmel and Indianapolis passed pursuant to the "fix", where the ILB noted:

Interestingly, although the Attorney General must defend in any lawsuit that challenges the constitutionality of state law, neither the AG nor the State has been made a party to this lawsuit.
This ILB post from Dec. 10, 2015 quoted from a law journal by Attorney General Zoeller that included:
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 [ILB emphasis], only erodes the rule of law.
As of this morning, a check of the docket in the case, Indiana Family Institute, et al v. City of Carmel, et al (29D01-1512-MI-010207,) reveals no efforts by the State of Indiana to intervene in the case. BTW, Judge Nation has rescheduled a motion to dismiss to Nov. 2nd.

What has the Attorney General done in other cases involving the constitutionality of a statute?

One example is Henderson et al. v. Adams et al. and Allen et al. v. Adams et al, where federal Judge Tanya Walton Pratt ultimately "found that two of Indiana’s statutes involving parental rights violate the equal protection and due process clauses of the 14th Amendment, meaning those statutes cannot be enforced."

The Attorney General's office was involved in that lawsuit. A June 30, 2016 news release, headed "Attorney General’s Office’s statement on ruling in birth certificate lawsuit case," includes this statement:

“Whenever any plaintiff challenges the constitutionality of a statute that the people’s elected representatives in the Legislature have passed, the Office of the Attorney General has an obligation to defend that statute in court. We will confer with our state government clients to ascertain the impact of the court’s ruling reinterpreting parental rights, and will determine next steps by the appropriate deadlines,” Indiana Attorney General Greg Zoeller said.
[Updated almost immediately] OKAY, I knew there was a statute, and I've finally located it, via this post from Feb. 10, 2010, headed "Bill to significantly expand authority of Attorney General up for passage today in the Senate."

The bill passed, and is now found at IC 34-33.1-1, "Authority of the AG to Intervene in Cases Challenging the Constitutionality of a Statute, Ordinance, or Franchise," where the State is not a party.

Posted by Marcia Oddi on August 18, 2016 10:20 AM
Posted to Indiana Courts