Fallout from Attorney General Groping Case or “Thirty Days in the Hole”

Indiana’s Attorney General, Curtis Hill, had a big night out on March 15, 2018. He seems to have gotten drunk and groped a state representative and several interns in addition to making some inappropriate comments. This was at a sine die party at an Indianapolis bar the night the General Assembly adjourned. If he’d responded with something along the lines of “I had too much to drink, I behaved badly, and I’m very sorry” there would have been some embarrassment, but it seems likely that things would have blown over. Instead he went with the Shaggy “wasn’t me” defense. Technically, his response was, “At no time was my behavior inappropriate nor did I touch anyone in an inappropriate manner.” Then he attacked the accusers, saying their accusations were “false” and “vicious.”

A special prosecutor who looked into the matter declined to prosecute, citing the standard of proof and that such a prosecution would not be in the public interest. However, the disciplinary case against him had legs. It had a lower standard of proof (clear and convincing) and lawyers are held to a higher standard than simply “not committing a crime.” The Hearing Officer found that the Disciplinary Commission carried its burden of proof that Hill had committed battery against the women. The touching had taken place, met the standard for “rude” or “insolent,” and was done knowingly or intentionally. The Supreme Court agreed and has suspended Hill’s license for 30 days. Where the Supreme Court and the Hearing Officer parted ways, however, was as to whether Hill should be entitled to automatic reinstatement. The Hearing Officer did not think so. In my view the Hearing Officer’s recommendation to not allow automatic reinstatement was a function of Hill’s attacks on the process and the witnesses after the allegations came to light. The Supreme Court did not find these actions laudable but reasoned that those actions did not entail “the type of wholesale lack of insight or lack of remorse that ordinarily would prompt us to require a respondent attorney to undergo the reinstatement process in order to prove his fitness to resume the practice of law.” He also got some leeway because people working on his behalf did some of the objectionable conduct rather than Hill doing it himself.

The automatic reinstatement is a fairly big deal. The process to petition for reinstatement is fairly burdensome, and you have to convince the Court that you learned your lesson. I think we have a pretty solid Supreme Court, and I agree with them more often than not, but the decision on reinstatement feels political to me. Not in the sense that I think they particularly care whether it’s a Republican or Democrat doing this, but rather that they wouldn’t be particularly excited to be involved with the reinstatement process for such a high profile position. If a private attorney had attacked witnesses and the process in such a public fashion, I think the penalty would have been harsher.

But, light as the penalty was, there are still repercussions. The Governor has filed an “emergency motion to intervene and request for clarification.” He wants the Supreme Court to tell him whether the suspension means that Hill is no longer “duly licensed” as required for the Attorney General under [cite] and, if not, whether his resulting lack of qualification for the office means that there is a vacancy such that the Governor must appoint a new Attorney General. IC 4-6-3-1 requires that the Attorney General be “duly licensed to practice law in Indiana.” The language of the order suspending him suggests that he is no longer “duly licensed” as it provides that, subject to certain conditions, he will be “reinstated to the practice of law” after the suspension period. The fact that he must be “reinstated to the practice” strongly suggests that, at the moment, he is not “duly licensed to practice.”

That being said, the pragmatist in me suggests that, if the Court declined to get entangled with the reinstatement process, it won’t let semantics force Hill out of office.  However, in his petition, the Governor cites to a case involving a Prosecutor in Washington County, Indiana who was suspended for 120 days in 2005 for taking a defendant’s note paper when the defendant and his attorney left the deposition room, then attempted to conceal the paper from defendant’s counsel. Thereafter, the Supreme Court determined that the Prosecutor should be suspended from her duties as Prosecutor and her pay suspended during her period of suspension. The Supreme Court appointed her replacement.

The Governor argues that the Attorney General cannot perform his duties while suspended any more than could the Prosecutor in Washington County could. However, there is a wrinkle in that the Washington County case also involved a suspension of the chief deputy. Hill apparently takes the position that his deputy can step into his shoes. The power of a deputy flows from the power of the occupant of the office. I think the Governor can make a strong argument that the deputy cannot have authority exceeding that of the officeholder, meaning that if Hill can’t practice law, the deputy shouldn’t be able to practice law in his place.

But, if Hill can’t perform the duties of the office, does that mean it’s “vacant” in the sense necessary to authorize the Governor to make an appointment for the rest of the term? He cites Article 5, sec. 18 of the Indiana Constitution and IC 3-14-4-3, both of which give him the authority to appoint replacements for vacancies in state offices until the next election.  But note that in the Washington County case, that is not what happened. The Supreme Court rather than the Governor appointed a “temporary prosecuting attorney” for the period of the suspension. The appointment does not address the issue of vacancy or really even set forth the basis of its authority to make the temporary appointment. So, if they don’t just figure out a way to avoid the question or allow the deputy to work in Hill’s absence, I suppose precedent would be that the Court appoint someone for a couple of weeks.

And, as luck would have it, Todd Rokita would like the job. Grateful Hoosiers rejoice.