Maureen Groppe has a story on some interesting wrangling between Gov. Pence and Attorney General Zoeller regarding Gov. Pence’s desire to get Indiana involved in litigation over President Obama’s executive order on immigration.
Instead of pursuing an action against the President over immigration as requested by Gov. Pence, Attorney General Zoeller has given consent to Gov. Pence to hire outside counsel. At issue seems to be IC 4-6-5-3 which I can’t quote because the General Assembly’s new online Indiana Code is terrible and only in PDF. But, it says that state agencies (defined broadly as including any instrumentality of the state) cannot hire outside counsel without consent of the Attorney General.
I wonder if it will be the Office of the Governor suing the President or if it will purport to be the State of Indiana bringing suit. If it’s the latter, I wonder what the basis would be for Gov. Pence to unilaterally bring suit against the President on behalf of Indiana while maintaining his ability to criticize the President for unilateral action on behalf of the United States.
Don’t forget the face that he criticized the President for circumventing the will of the people (Congress) on the same day that his hand-picked State Board of Education is trying to take out the elected Superintendent and, you know, circumvent the will of the voters.
He’s just trying to ennoble us and we’re not smart enough to realize it.
Highlight, right-click-copy, paste.
IC 4-6-5-3 Written consent; employment of attorneys or special general counsel Sec. 3. No agency, except as provided in this chapter, shall have any right to name, appoint, employ, or hire any attorney or special or general counsel to represent it or perform any legal service in behalf of such agency and the state without the written consent of the attorney general. (Formerly: Acts 1943, c.70, s.3.) As amended by P.L.5-1984, SEC.21.
Under IC 4-6-2-1 it appears the Governor can bring suit on behalf of the state of Indiana or at least require the AG to file a lawsuit on behalf of the state of Indiana whenever he requests it in writing…
Sec. 1. (a) The attorney general shall prosecute and defend all suits instituted by or against the state of Indiana, the prosecution and defense of which is not otherwise provided for by law, whenever the attorney general has been given ten (10) days’ notice of the pendency of the suit by the clerk of the court in which the suit is pending, or whenever the governor or a majority of the officers of state require the attorney general in writing, with reasonable notice, to prosecute or defend a suit…
Thanks for the cite. But I would say that it doesn’t quite say that the Governor could bring suit on behalf of the state. It’s a chapter talking about the Attorney General’s role. It says that he shall prosecute all suits instituted by the state of Indiana. And it further says that he shall do so when he’s given notice to prosecute by the Governor. What it doesn’t say, necessarily, is that the Governor can institute a lawsuit on behalf of the State.
I don’t disagree that the Governor can, as the state’s executive, direct suit on behalf of the state in a lot of contexts; but that can’t be unlimited. Just being silly for a second to illustrate a point, let’s say the Governor had a brother in California who he thought was being taxed unfairly. He couldn’t, I wouldn’t think, order Indiana to bring suit against California seeking a declaration that the taxes on Brother Pence were unconstitutional. He would lack standing, it’s personal business, and the state has no real interest in the matter. On the other hand, if Louisville decided to occupy Jeffersonville, Gov. Pence would probably have a good bit of authority to sue Kentucky or Louisville. Is this lawsuit closer to the plight of Brother Pence or to the Occupation of Jeffersonville?
Thanks for the quick response, I don’t think we disagree.
You’re right, the section is about the role and duties of the Attorney General. So yes, this would not be the Governor bringing suit, instead it would be the AG bringing suit on behalf of the state (or in this case outside counsel hired by the AG to bring suit on behalf of the state) because of a request of the Governor.
I guess my point is that the AG does not have discretion on whether or not to bring the suit, once the Governor requests it in writing the prosecution must be brought and brought in the name of the state of Indiana.
This would apply to your absurd example as well, if the Governor requests in writing that the AG sue California based on the unfair taxation of his brother, the attorney general must comply and file suit on behalf of the state, at least under the plain language of IC 4-6-2-1. Now obviously that’s never going to happen for any number of political and practical reasons (the main one being the lawsuit would be laughed out of court), but that’s how I read the statute.
p.s. big fan of the blog
Contrast Zoeller’s willingness to consent to Pence hiring private counsel to bring a frivolous, politically motivated suit against President Obama with his refusal last year to allow Superintendent Ritz to hire private counsel to file a meritorious Open Door Law suit against Pence’s appointees on the State Board of Education.
Well noted, Bill. Pence is either ruthlessly vengeful, wishes to run as the “education president” at all costs, or both.