ILNews

Zoeller, senators at odds over immigration law

Back to TopCommentsE-mailPrintBookmark and Share

Three Republican state senators seeking to defend parts of Indiana’s immigration law that Attorney General Greg Zoeller deemed unconstitutional have backing from a statewide elected official in the capitol – of Kansas.

Secretary of State Kris Kobach in Topeka, Kan., is among submitters of a motion to intervene filed in federal court in Indianapolis on behalf of Indiana immigration law sponsor Mike Delph of Carmel, as well as Phil Boots of Crawfordsville and Brent Steele of Bedford.
 

kobach-kris-mug.jpg Kobach

The senators argue that U.S. District Judge Sarah Evans Barker should let them defend parts of the law that Zoeller, also a Republican, advised the court were unconstitutional under the Supreme Court of the United States’ June decision in Arizona v. U.S., which struck down major parts of that state’s immigration law.

Kobach was elected in 2010, but before that, he was a legal driving force at the Immigration Reform Law Institute in Washington, D.C., where he helped draft and advocate for the laws in Arizona and Indiana. IRLI’s website still lists Kobach “of counsel.”

Zoeller said that as a result of the Arizona decision, he no longer would defend warrantless arrest provisions in Indiana’s law, Senate Enrolled Act 590. That provision and others are challenged in Buquer v. Indianapolis, 1:11-CV-0708.

It is unclear what led IRLI to draft the motion to intervene on behalf of the senators, or who initiated it, because no one with direct knowledge would speak about it. Senate staff members said the senators could not comment on matters of pending litigation. Reached individually, Boots and Delph said they could not comment, and Steele did not return a phone message.


zoeller-greg.jpg Zoeller

Boots, Delph and Senate staffers directed requests for comment to Kobach and IRLI director Garrett Roe, who drafted the motion to intervene. Neither Roe nor Kobach responded to requests seeking comment.

The kerfuffle over the fate of Indiana’s immigration law led Zoeller to write a guest column that appeared this month in many Indiana newspapers.

“I have been warned that some individuals seeking attention might attempt to manufacture a misleading complaint about the work that my office and I have done in representing Hoosiers. That would be disappointing; such political stunts are the height of cynicism and help create further public distrust,” Zoeller wrote.

Zoeller went on to say that he had a clear conscience in defending the immigration law as he did; that he properly deferred to the SCOTUS decision; and that he saw his action as a “teaching moment” regarding the role of the attorney general.

“It was clear Indiana’s attempts to enforce our law would be similarly struck down,” Zoeller wrote. “My duty to the U.S. Constitution and my obligation to speak truthfully to the federal court required me to announce that we could no longer defend certain portions of SEA 590 calling for warrantless arrests. We continue to defend other parts of the state immigration law, however.”

Zoeller spokesman Bryan Corbin said the guest column was written before the senators moved to intervene. “Directed primarily at comments on the blogosphere from individuals who misunderstood the attorney general’s role in determining legal policy of the state, the op-ed sought to set the record straight,” Corbin said in an email.

The senators asked to intervene under Federal Rule of Civil Procedure 24(a)(2). They said the provisions of SEA 590 were distinct enough from the Arizona law to warrant consideration of their arguments. They claim, among other things, that they have an interest in the case to prevent the nullification of their legislative votes.

“After the attorney general declined to defend all of SB 590, the proposed intervenors remain the only interested parties who are ready and willing to defend their core legislative interests in the full implementation of the duly enacted law,” their motion says.

Jeff Cooper, an associate professor at Indiana University Robert H. McKinney School of Law with a focus in civil procedure, said the senators have a tough claim to make and that legislative standing is a complicated doctrine.

“They’re not going to be able to say, ‘I voted for this, the court struck it down, so I’m affected,’” Cooper said. “On its face, I would be very surprised if the court would recognize standing.”

Zoeller has moved to strike the request to intervene, and the American Civil Liberties Union of Indiana, which brought the Buquer case, also objected to the senators’ filing.

“The proposed interveners seek to intervene in their official capacities to present their personal views on the constitutionality of Senate Bill 590,” the AG’s motion to strike says. “Indiana law does not permit a state senator in his official capacity to hire private counsel to intervene in a matter already being handled by the attorney general.”

Jeff Papa, chief of staff and legal counsel for the Indiana Senate, said the senators’ filing was made independently and that the Senate isn’t retaining outside counsel in the matter. He said he was unaware of any prior case in which lawmakers similarly had sought to intervene.

“I think the question comes down to whether once the attorney general has decided he doesn’t want to pursue (defending a statute), whether anyone else can pursue that,” Papa said. “I think it’s an open question.”

Indiana ACLU legal director Ken Falk disagreed.

“Legislators do not have the ability to do this,” he said. “Under Indiana law, the attorney general represents the state and the state’s interest, and we believe there’s no authority for three legislators to claim an interest because they are not happy about how he is interpreting the law.

“When you think about what kind of door this opens up for legislators to second-guess the attorney general,” he said, “it’s fairly open-ended.”

Dawn Johnsen, a constitutional law professor at Indiana University Maurer School of Law, said issues of who represents federal law often arise when a president declines to defend a statute. In such cases, interveners typically have the consent of a body of Congress, she said. Such is the case now with the Defense of Marriage Act, which is being defended by a bipartisan legal advisory group of the U.S. House with the consent of Attorney General Eric Holder.

“There’s a big difference there with the Defense of Marriage Act,” Johnsen said. “The constitutionality is a lot less clear; the Supreme Court has never decided the issue. Here, the Supreme Court in the Arizona case made clear what Indiana is trying to do is unconstitutional.”





Johnsen said Zoeller’s column “was very convincing and correct in his view of his obligation to enforce the Constitution and not invariably defend state statutes that are unconstitutional.”

She said Kobach’s name on the brief signifies his involvement in issues that are aligned nationally. “I don’t see anything improper there, I think it’s just political,” Johnsen said. “I’m not sure it’s a good idea.”

I.U. McKinney School of Law professor and immigration clinic director Linda Kelly Hill said she’s dubious of the senators’ intentions and Kobach’s involvement.

“I don’t consider myself really politically savvy, but it just strikes me as a little odd that someone from another state in a state office is involved in signing off on or directly supporting legislators in other states in a lawsuit,” Kelly Hill said.

She noted that many parts of SEA 590 stand, including denial of in-state tuition to non-citizens and consideration of immigration status as a factor in setting bond.

“One really has to wonder what the point is of filing such a type of action,” Kelly Hill said. “There’s not going to be any practical impact; it’s entirely a political statement.”•
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT