SB 270 – State consent required to settle local litigation (Updated)

Sen. Koch has introduced SB 270 which, among other things, requires that local government get the consent of the State to settle certain kinds of local litigation. (“Unit” refers to a unit of local government).

Sec. 8.7. A unit does not have the power to compromise or settle a claim by agreeing, in whole or in part, to:

(1) adopt, refuse to adopt, or refuse to enforce an ordinance; or

(2) the terms of an injunction, restraining order, or consent decree;

without the consent of the attorney general

The legislation imposes similar restrictions on school corporations (except that — weirdly to my eyes — charter schools are specifically carved out of this restriction). “[A school corporation does not have the] power to compromise or settle a claim by agreeing, in whole or in part, to: (A) adopt, refuse to adopt, or refuse to enforce a policy; or (B) the terms of an injunction, restraining order, or consent decree; without the consent of the attorney general.”

Not only does this legislation call for the Attorney General to second guess school corporations, local units of government, and their legal counsel who are going to be far more familiar about the facts on the ground with respect to the pending litigation. This legislation would also let the State gamble with other people’s money. If the proposed settlement has an injunction with respect to a policy or ordinance, a lot of times the litigation is going to be associated with some kind of civil rights action that results in the defendant paying the plaintiff’s attorneys fees if the plaintiff wins. Those expenses can add up fast. If the Attorney General vetoes a proposed settlement and the school or local government loses, this legislation does not have the State offering to pick up the tab. Under local expenditures the fiscal note states that “the bill could potentially cause a unit or school corporation to incur additional expenses due to delayed settlements, injunctions, restraining orders,or consent decrees.” It should add “potentially catastrophic legal fees” if some local township or small, rural school corporation has to pay an Indianapolis civil rights attorney his or her rate of $400 or $500 per hour because the Attorney General had a philosophical difference of opinion about a bathroom case or something.

Update: I think I’ve stumbled across the “ripped from the headlines” issue that led to this legislative proposal. Olivia Covington, reporting for the Indiana Lawyer, has a story about Attorney General Curtis Hill’s effort to intervene to protest a consent decree entered into between Marion County and Antonio Lopez-Aguilar concerning Lopez-Aguilar’s lawsuit claiming that he was illegally detained by Marion County in cooperation with the Immigration & Customs Enforcement (“ICE”). The result of the lawsuit was that Marion County entered into a consent decree. The prohibiting “the Marion County Sheriff’s Office from detaining illegal immigrants on behalf of U.S. Immigration and Customs Enforcement unless ICE can produce a signed warrant or other probable cause.”

I haven’t read the underlying facts for this case, but I am familiar with the general framework of what’s often at issue. Someone suspected of being an illegal immigrant will be arrested for a non-immigration related crime. The person will be serving a sentence or awaiting trial or whatever. ICE will ask the jailer to let ICE know when the person’s sentence is up and then hold them until ICE can come pick them up. I believe case law is still percolating a bit, but courts have been holding that the jailer doesn’t have the authority to honor the hold request unless there is a warrant or some particularized basis giving them probable cause to believe there is a basis for detaining the individual. In 2016, a District Court in Illinois issued an opinion in Moreno v. Napolitano, 213 F.Supp. 3d 1999 (N.D. Ill. 2016) holding that detaining an individual on an ICE hold (after the basis for imprisoning the person under state or local law has passed) was basically the same as a warrantless arrest and that ICE was permitted to “dispense with a warrant only when one cannot be obtained before the subject will likely escape.” 

The Attorney General is correct that IC 5-2-18.2 requires local law enforcement to cooperate with the federal government’s immigration efforts. But, if the local law enforcement agency cooperates in a way that violates the 4th Amendment, that will expose the local government to liability for that constitutional violation. Because my bias is in favor of local control, I’m obviously not a fan of this legislation. But, if the General Assembly proceeds with this legislation, I would definitely urge a provision that requires the State to reimburse the local school or governmental unit for any expenses added by the State’s decision.