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.