AG finds no caselaw that answers same-sex amendment question

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Nearly 13 minutes into a press conference touting the accomplishments of his office in 2013, Indiana Attorney General Greg Zoeller got a question on a topic he may have been hoping to avoid – same-sex marriage.

State legislators have been grappling privately with the proposed amendment to the Indiana Constitution banning marriage between two people of the same gender. Their concern is the second sentence of the amendment which some view as too broad and possibly removing legal protections from unmarried heterosexual couples.  

Zoeller said his office has fielded questions and had conversations with elected officials who are actively in favor of the amendment getting a second approval from the Statehouse as well as with elected officials who are opposed. Pointing to recent decisions by federal judges striking down same-sex marriage statutes in other states, Zoeller described the issue as a “very volatile area of the law.”

To the question of whether the Legislature could alter the second sentence and still go forward with getting the issue before voters in the November 2014 general election or if any rewrite would force the amendment process to start all over again, the attorney general had no definite answer.

There have been no cases directly on point that has provided a response to that question, he said.

“I think the fact that it’s not been fully addressed leaves it open to a supposition as to what a federal court might do or a state court might do when it comes to changing language or altering it,” Zoeller said. “So it’s an open question.”

Zoeller devoted most of the press conference to highlighting what he called “an extraordinary year” for himself as well as the Office of the Attorney General. He noted, specifically, the work on getting more resource officers into schools, battling prescription drug abuse and providing extra consumer protection for senior citizens.

The Indiana General Assembly approved legislation proposed by Zoeller and Sen. Pete Miller, R-Avon, that clarified the duties of school resource officers and established a state grant program to help schools pay for these officers. The measure appropriated $10 million in 2013 and again in 2014 for the grants.

In 2013, 116 school corporations, out of a total of 290, received grants.

Zoeller is now turning his efforts to securing additional funding for more officers. He is eyeing a federal appropriations bill which includes monies for these law enforcement personnel.

If Congress approves the bill and develops a competitive grant program to award the funds, the attorney general believes Indiana will be well-positioned to get federal support. The partnerships between local communities, law enforcement and the Indiana Criminal Justice Institute along with Miller’s bill puts Indiana in a leadership role, showing the state has prepared for greater use of school resource officers.

Zoeller also pointed to another piece of legislation, the Senior Consumer Protection Act, recommended by his office and authored by Sen. Tim Lanane, D-Anderson. Approved by the General Assembly, the new law increases civil penalties for those who financially exploit state residents who are 60 and older.

The attorney general’s office filed its first lawsuit under the new statute in September against an Indianapolis-based tree service company. Zoeller’s office claims that Steve Spaulding and his company, Spaulding’s Tree Experts, bilked a 93-year-old homeowner out of $7,500 in exchange for minimal and faulty work.

While the case is still pending in Marion County, the attorney general plans to seek a default judgment against the defendant.   

Also in 2013, the attorney general filed disciplinary complaints with the Indiana Medical Licensing Board against 15 doctors for overprescribing painkillers. Zoeller credited the state’s Prescription Drug Abuse Prevention Task Force with making an “emergency effort” to try to stem prescription drug abuse, which has reached epidemic levels.

The task force, of which Zoeller is a co-chair, brought together more than 80 people from different agencies to examine the problem of “pill mills” and the growing dependence on opiate painkillers. During the 2014 legislative session, the task force plans to recommend the state speed up the process that requires pharmacists report their dispensing of certain amounts of opioids.

Zoeller said he has met with physicians who are concerned about new regulations.

“I told them that they should watch the actions taken to date against physicians who have overprescribed,” he said, “and if they see their own practice looking like that, then they should probably worry.”



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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?