Rumor has it that SB 280 introduced by Sen. Delph will get a committee hearing tomorrow.
It begins by specifying that the legislation does not apply to litigation covered under IC 2-3-8 or 9. Those chapters give the General Assembly authority to employ private attorneys (rather than the Attorney General) to defend challenges to legislative or Congressional districts; and to employ private attorneys (rather than the Attorney General) to defend lawsuits against individual legislators, agents of the General Assembly, or the General Assembly as a body.
Sen. Delph’s bill would give an individual legislator standing to intervene in an action challenging legislation if in the opinion of the legislator the legislation is not being “adequately” defended. This right is given to the legislator designated as the first author of the legislation.
If the legislator can’t get a private attorney to work on the case for free, the Attorney General has to foot the bill for the litigation.
In my mind, this is a departure from proper separation of powers and a misunderstanding of the fundamental nature of what a law is. 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.
{ 14 comments… read them below or add one }
There is actually a bigger legal issue involved. AG Zoeller has always taken the position that he has absolute authority to determine the position the State takes with regard to litigation and that not even the Governor of the State of Indiana can override that decision. He takes the position that he is not only the attorney for the State of Indiana…he is also the client.
Zoeller’s position is one that isn’t shared by a lot of attorneys. When I worked for AG Linley Pearson he would often cite a statute, which still exists, that allows the AG to opt out of representing a state agency or official when the AG, for whatever reason did not want to provide representation or make certain legal arguments. Under the statute, the AG would appoint an attorney to take his place.
Zoeller has often said, in support of his position, he has no choice when it comes to representing state agencies and state officials…he has to represent them and thus gets to make decisions regarding what direction the litigation will take.. But, as previously noted, Indiana law does provide an opt out provision for the AG when he doesn’t want to represent a state agency or official.
If AG Zoeller felt so strongly about the immigration bill, he should have simply used the opt out position and let another attorney defend the law on behalf of the State. I understand the frustration of the legislators that the AG doesn’t want to argue for the bill yet won’t withdraw from representation and appoint someone else to defend the law.
I’m not sure though about individual legislators making the decision about legal positions. The Governor is the one who executes the law and represents the State. If the Governor says he wants the law defended in court, I think the AG is obligated to defend it…or get someone else to do it.
Interestingly there is a similar battle going in with regard to the State taking positions regarding proposed federal laws and regulations. Senate Bill 36 originally allowed the AG,, through a Washington, DC based deputy to argue on behalf of the State of Indiana, for or against proposed federal laws and regulations. That would seem to me to be within the province of the Governor. The bill appears to be amended to have taken out that language.
I definitely see a more interesting question when it’s Governor versus Attorney General versus General Assembly (as a body) wanting to defend a law. (Whichever entity is seeking to do that should have to hire and pay for the attorney itself.)
But, I don’t see any justification for an individual legislator acting on his or her own initiative in a way that’s unique from what an individual citizen could do.
Agreed. I think you run into problems when you have individual legislators seeking to represent the State in litigation. I do understand their frustration though.
A legislator that lacks understanding of the constitution? Think this must be a first. Mark this date down in history.
I don’t think Doug necessarily argued it was unconstitutional. I wouldn’t go that far. Rather I think his argument was it encroaches on separation of powers from a policy perspective. The AG is a member of the executive branch, but it’s a statutory office. The legislature can take whatever power it wants away from the AG.
But, to the extent that power belonged to the Governor, I suppose it would revert back to the Governor when the General Assembly removed it from the AG.
http://indianalawblog.com/archives/2013/02/ind_law_interes_4.html
You boys got the gold star over at the ILB.
I don’t suppose that comes with groupies?
Dog, you got Kilroy, Stuart Swenson, Freedom, Mark Small and me. Isn’t that enough?
I don’t know what you guys look like, but I suspect that group is a little light on the eye candy.
You can’t have everything.
I suspect that you might have a pre-existing bias for a certain type of “eye candy”, so your judgment might fairly be called into question in this situation. Besides, Stuart is quite right.
He needs a little leeway, now that he’s a celebrity.
Paul, do you have the statute handy or a link to it? I don’t see the difference between the AG defending the law or them hiring someone else to do it. The law is still being defended by the AG’s office. Now if it allowed the AG to not defend the law then that would be different. My thinkng is that the statute was put in place so that if the AG’s office was inundated by multiple cases where they could not handle everything themselves it gives them the ability to bring in outside help. Just my thoughts without actually seeing the statute.