A legislative amendment that would have disqualified from office an attorney general or candidate whose law license was suspended for 30 days or more has been stripped of key language removing disciplined AGs from office.
A conference committee on Senate Bill 178 met Wednesday to consider Rep. Tim Wesco’s amendment to the bill, which was overwhelmingly endorsed by the Indiana House. The original version of the bill would have required sitting AGs to leave office if they were suspended for 30 days or more, and would have disqualified AG candidates who were suspended for 30 days or more within five years of the election.
Notably, Wesco’s original language had the potential to remove incumbent AG Curtis Hill from office or from the November ballot if the Indiana Supreme Court upholds a recommendation that he be suspended for 60 days without automatic reinstatement for allegations of battery against four women.
But the language put forth by Sen. Mark Messmer, the Republican who chaired the conference committee, would only disqualify AG candidates who have been suspended without automatic reinstatement within five years of an election, or who have been disbarred. The conference language does not address discipline of incumbent officeholders.
That language still has the capability of removing Hill from the November ballot if the Indiana justices agree that he should be suspended without automatic reinstatement. That decision would have to come before the November election to have an impact on Hill.
But if Hill – or any of the four other AG candidates – were suspended during the election cycle with automatic reinstatement, they could remain on the ballot. Democratic Rep. Ryan Dvorak noted in committee that a candidate could receive a one-year suspension with automatic reinstatement and remain on the ballot, potentially impacting the beginning of their term as attorney general.
Aside from Hill, Indianapolis attorney John Westercamp and former Revenue Commissioner Adam Krupp are seeking the GOP nomination for attorney general. Democratic State Sen. Karen Tallian and former Evansville Mayor Jonathan Weinzapfel are seeking the Democratic nod.
Both Wesco and Rep. Brian Bosma, the Indianapolis Republican who just ended his term as House Speaker, said they preferred the House version of SB 178, which also addressed incumbent discipline. Bosma said the case law on the issue of a disciplined attorney general is “extraordinarily unclear” on what the requirement for an AG to have an “active” law license means.
“But this is better than no clarity at all,” Bosma added.
Sen. Lonnie Randolph, D-East Chicago, raised constitutional and due process questions about the implications of the language for AG Hill.
Randolph noted a special prosecutor declined to charge Hill, while the Indiana Southern District Court dismissed a federal lawsuit against him related to the underlying sexual misconduct accusations. If he were removed from the ballot pursuant to SB 178, would that constitute an additional punishment?
Both Bosma and Messmer said no.
They also disagreed with Randolph’s suggestion that removing Hill from the election would be a removal without a hearing. Similarly, they rejected Randolph’s contention that passage of the legislation would influence the Supreme Court’s disciplinary decision.
“I doubt they’re waiting with bated breath,” Messmer said of the justices.
Randolph drew on this year’s impeachment proceedings when he offered his suggestion on how to handle Hill’s situation. Like the U.S. Senate said of President Donald Trump, Randolph said the Legislature should “let the people decide” if Hill should remain in office.
Randolph also asked why the General Assembly would intervene in the case of a disciplined attorney general when three southern Indiana judges were permitted to return to the bench after serving 30- and 60-day suspensions.
In response, Bosma said there had been similar questions within the House Republican caucus.
There are two key differences between the discipline of the three judges – Clark Superior Judges Andrew Adams and Bradley Jacobs and Crawford Circuit Judge Sabrina Bell – and the discipline of an attorney general. First, the judges showed “genuine remorse,” a factor considered in reinstatement decisions, and second is that the Supreme Court has total control over the qualification of judges. The Legislature, conversely, has control over the statutory qualifications of the state attorney general.
Dvorak said he sees loopholes in SB 178 given that the language doesn’t address what would happen if an incumbent AG holds a suspended license. He also expressed concerns about the fact that the Office of the Attorney General met with Messmer to discuss the language in SB 178, though Messmer said Hill gave no opinion or suggestions.
The General Assembly has a self-imposed Wednesday deadline to finish all 2020 legislative business, so final action on SB 178 is expected Wednesday evening.