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.
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.
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.”