A lawsuit challenging an Indiana abortion law has once again led to a public dispute between Indiana Attorney General Curtis Hill and Marion County Prosecutor Terry Curry.
Hill released a statement Tuesday criticizing Curry for enlisting an Indianapolis city attorney to represent the Marion County Prosecutor’s Office in a lawsuit filed last month against 2019 House Enrolled Act 1211, which largely bans the most common second-trimester abortion procedure. Curry is named as a defendant in his official capacity, and Hill says only his office has the statutory authority to represent state actors in official capacity suits.
Curry, however, told Indiana Lawyer “he is statutorily provided with the option of retaining outside counsel,” and doing so won’t infringe on Hill’s ability to defend Curry or other parties to the suit.
The case at issue is Bernard, M.D., et al., v. The Individual Members of the Indiana Medical Licensing Board, in their official capacities; the Marion County Prosecutor, 1:19-cv-01660, which alleges HEA 1211 is an unconstitutional infringement on due process rights and women’s rights to bodily integrity. The bill, which is scheduled to take effect on July 1, bans dilation and evacuation procedures — called “dismemberment abortions” in the bill — in which “living fetuses are killed during extraction by cutting or ripping off one piece of their bodies at a time,” according to Hill.
In the complaint, the American Civil Liberties Union of Indiana and ACLU National says D&E procedures are the safest and most common form of second-trimester abortions. The complaint says D&E procedures use “suction to remove amniotic fluid and the placenta and forceps or another surgical instrument to remove the fetus. Usually, because the cervical opening is narrower than the fetus, some disarticulation or separation of fetal tissue will occur.”
In a Tuesday motion, Hill asked the Indiana Southern District Court to strike the appearance of attorney Daniel Bowman, an assistant corporation counsel in the Office of Corporation Counsel for the City of Indianapolis. According to Hill, Curry enlisted Bowman because he disagrees with the litigation position Hill will take in the abortion lawsuit.
Hill cited to multiple cases in support of his motion to strike Bowman’s appearance, including Buquer v. City of Indianapolis, in which the Southern District struck the appearance of attorneys “who were attempting to impose a litigation position on the State contrary to the Attorney General’s position.”
“This Court should do the same here and strike Mr. Bowman’s appearance,” Hill’s office wrote in a Tuesday memorandum filed in Senior Judge Sarah Evans Barker’s court. “Otherwise, not only the Marion County Prosecutor, but every other state official who may disagree with the Attorney General’s litigation position, will be emboldened to designate private counsel, agency counsel, or some other lawyer to represent that official’s interests in court.
“Such a development,” Hill continued, “will not only thwart the will of the General Assembly but would also create uncertainty and inefficiency for the federal judiciary as it adjudicates cases against state officials.”
Though Hill does not explicitly say what Curry’s desired litigation position would be, the AG said Bowman’s appearance “is not the first time (Curry) has interfered with efforts by the attorney general to defend state law.” Last year Curry, along with Monroe County Prosecutor Chris Gaal and Lake County Prosecutor Bernard Carter, directed the Office of the Attorney General to concede the merits on their behalf in another abortion lawsuit, Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Dept. of Health, et al., 1:18-cv-1219.
All three prosecutors, who are Democrats, were sued in their official capacities in that case, which challenged an Indiana law that required abortion providers such as Planned Parenthood to report “all abortion complications” to the Indiana State Department of Health. In announcing that directive, the prosecutors said they were “tired of being drawn into the annual act of legislative futility to pass abortion-related bills… .”
But Republican Hill immediately hit back, saying in May 2018 that the prosecutors’ “directive” had “zero force or effect.”
In his Tuesday motion to strike Bowman’s appearance, Hill conceded that Indiana Code section 33-23-13-5 allows prosecuting attorneys and judges to “select defense counsel of the judge’s or prosecuting attorney’s own choice at the judge’s or prosecuting attorney’s own expense.” But “(t)he Indiana Supreme Court, however, has already said such language does not authorize government officials to supplant the Attorney General with outside counsel in official capacity suits …,” Hill added, citing State ex rel. Sendak v. Marion County Superior Court, Room No. 2, 373 N.E.2d 148 (Ind. 1978).
“If the prosecuting attorney were sued in his individual capacity, he would be permitted to hire an attorney to provide defense on liability issues,” Hill continued. “What the statute does not contemplate, and the Indiana Supreme Court foreclosed in Sendak, is a state official picking other counsel to litigate an official capacity case based on the official’s personal views.”
“Any appearance or statement of another attorney attempting to speak for the Marion County Prosecutor is, legally speaking, meaningless,” the OAG wrote.
Curry’s office, however, told IL that, “As he is named in his official capacity in this matter, he has requested another public agency, the Indianapolis Office of Corporation Counsel, to enter an appearance.”
Bowman has not entered an appearance on behalf of the individual members of the Indiana Medical Licensing Board.