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 Post subject: AG Zoeller won't defend immigration law, Delph intervenes
PostPosted: Sun Sep 09, 2012 3:23 pm 
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I am documenting the battle over the defense of Indiana's immigration enforcement law (SEA 590) below.

Each segment of the story will be listed in a separate reply below.

1. We were shocked when Indiana Attorney General Zoeller decided not to defend portions of Senate Enrolled Act 590! We expected Judge Barker to rule on how the recent Supreme Court decision on Arizona's SB 1070 affected the ACLU lawsuit against SEA 590. We did not think
AG Zoeller would simply throw in the towel! While the 2 state bills are similar, they are not identical.

2. Since that time, Indiana State Senators Delph, Boots and Steele have filed a motion seeking to intervene and have IRLI take over the defense from the AG.

3. AG Zoeller has responded with a very long opinion piece declaring that his conscience is clear as far as his handling of the defense of SEA 590 is concerned.

4. Attorney Paul Ogden has written a blog saying that SEA 590 deserves to be defended and if the AG does not feel he can do that, then he should step aside and let someone else defend the bill.

http://www.in.gov/activecalendar/EventL ... _id=116961

[ATG] Supreme Court ruling guides final State brief in immigration suit

Start Date: 7/31/2012

Start Time: 12:00 AM

End Date: 7/31/2012
Entry Description

INDIANAPOLIS – The United States Supreme Court’s ruling striking down Arizona’s immigration law as unconstitutional means portions of Indiana’s immigration law dealing with warrantless arrests cannot be defended, Attorney General Greg Zoeller said today in a legal brief filed in federal court.

Zoeller noted that the Supreme Court’s ruling in the Arizona v. U.S. case makes it clear that state laws authorizing local law enforcement officers to make warrantless arrests of people for immigration violations are unconstitutional. Portions of Senate Enrolled Act 590, Indiana’s immigration law that is now under legal challenge, are preempted, or overridden, by federal law, Zoeller said.

"The Supreme Court made clear that immigration enforcement is a federal government responsibility. States are frustrated by the unwillingness of the executive branch to enforce current immigration laws and inability of Congress to make reforms. As Indiana’s Attorney General, I had an obligation to defend this Indiana statute passed prior to the recent Arizona decision, but I have sworn to uphold the Constitution and my legal conclusion now is that certain portions of the state law cannot stand," Zoeller said.

Shortly after the Legislature passed Senate Enrolled Act 590 into law in 2011, the ACLU plaintiffs filed a legal challenge to it, Buquer v. Indianapolis, in U.S. District Court for the Southern District of Indiana, in Indianapolis. The plaintiffs in June 2011 obtained a preliminary injunction that blocked two challenged portions of the law from taking effect. As lawyer for the State, the Attorney General’s Office defended the statute from the challenge.

Senate Enrolled Act 590 permitted local officers to make warrantless arrests based on immigration court removal orders, federal notice-of-action forms, 48-hour detainer requests or for being a foreign person who was indicted or convicted of an aggravated felony. The U.S. Supreme Court recently struck down as unconstitutional similar language in Arizona’s law. Because that is now the binding legal precedent, similar portions in Indiana’s law with one exception cannot remain standing either, Zoeller said.

In the State’s legal brief filed today in the Buquer case, Zoeller recommended the U.S. District Court strike down three of the four warrantless arrest provisions of the law that the Supreme Court has now said are unconstitutional. (The exception: Other statutes already allow local police to confine someone on a detainer for 48 hours at a federal agency’s request.)

SEA 590 also contains a provision making it an infraction in Indiana to use or accept a foreign nation’s consular identification card as ID for any public or private purpose. This portion, which the ACLU plaintiffs also challenged, remains under the U.S. District Court’s preliminary injunction of June 2011. The U.S. Supreme Court ruling in the Arizona case was silent on the use of consular ID cards. Zoeller said consular ID is a unique issue but since the Arizona decision does not apply to it, Indiana’s recommendation is that the State should have the right to define what identification is reliable and acceptable for government purposes, including licensed occupations. Indiana will leave it up to the federal court to decide the issue in the Buquer case.

The Attorney General’s Office operates the state’s Identity Theft Unit in the Consumer Protection Division. Given the concern that consular ID could be forged and used to commit fraudulent transactions, Zoeller also said he also will recommend the 2013 Legislature revise that part of the statute to improve its effectiveness.

In the Buquer case, the U.S. District Court permitted each side additional time to file legal briefs to take into account the June 25 ruling in the Arizona case. With the filing of the State’s response brief today, the State’s litigation in the Buquer case is now largely concluded and the Attorney General’s Office will await a ruling from the federal district court.

"My office has defended the Indiana law the Legislature has passed from the legal challenges the plaintiffs filed for as long as possible. But once the U.S. Supreme Court struck down the Arizona law, its decision is final; and we should defend the challenged portions only when we have a good-faith basis to do so. To disregard the Supreme Court’s guidance would not serve justice and would not be a good use of taxpayer resources, since the State could be ordered to pay the challenger’s attorneys fees," Zoeller said.

Separately, the Attorney General’s Office also is defending a second legal challenge to SEA 590, Union Benefica Mexicana v. State, in the U.S. District Court for the Northern District of Indiana in Hammond. Those plaintiffs challenged different provisions of SEA 590 that allow the State to sue employers who employ illegal workers to recoup unemployment benefits, and require that individuals seeking day-labor jobs complete individual attestation of employment forms. SEA 590 says that if police have probable cause to believe an individual has not completed this form, they are required to submit a complaint to the U.S. Immigration and Customs Enforcement (ICE) office.

The federal court stayed the Union Benefica Mexicana case after the plaintiffs filed suit so the State does not have the opportunity to respond, and that court has issued no injunction. Zoeller noted the two provisions being challenged here already satisfy the requirements of the Supreme Court’s Arizona decision and so his office will continue to defend SEA 590 in that case.

Still other provisions of SEA 590 were not challenged in either the Buquer or Union Benefica Mexicana lawsuits. E-Verify is a federal database familiar to many businesspeople. Under SEA 590, if a company wishes to do business with the State, it must use the federal E-Verify database to establish that its employees are eligible to work. The Supreme Court did not address E-Verify in the Arizona case, and in a separate case the Supreme Court has said states are permitted to require such employer verification. Zoeller said there is no legal obstacle to the State requiring state contractors to use E-Verify.

Emphasizing the State’s lawyers have devoted much time and effort into vigorously defending SEA 590, Zoeller said he will advise law enforcement and Legislature on how next to proceed.

"The people’s elected representatives in the Indiana General Assembly made a sincere effort to respond to local concerns about illegal immigration when they were faced with the federal government’s dereliction of its responsibility. Whatever its flaws, this Indiana legislation was not an ‘anti-immigrant’ bill, it was an anti-illegal-immigration bill, focused on process, not individuals, and it was consistent with Hoosiers’ decency and their respect for the Constitution and the basic rights of all people. The states are the victims of federal inaction, and I call upon those in Washington DC to fulfill their duties and stop putting states in the difficult position of attempting to enforce immigration when the Supreme Court has said that is a federal government responsibility," Zoeller said.

Noting that the Attorney General’s Office has made it a point to legally challenge the federal government in cases of federal overreach, Zoeller underscored the importance of maintaining a proper balance between federal and state authority. "We don’t want the federal government to overstep their authority, and we as the State should not overstep ours," the Attorney General added.

NOTE: The state’s response brief in the Buquer v. Indianapolis case, filed today in U.S. District Court for the Southern District of Indiana, is attached. The Attorney General’s Office defends state statutes and also appeared on behalf of its clients, the prosecutors of Marion and Johnson counties, who were named as defendants in the case.

Last edited by Cheree on Sun Sep 09, 2012 3:47 pm, edited 1 time in total.

 Post subject: Re: AG Zoeller won't defend immigration law, Delph intervenes
PostPosted: Sun Sep 09, 2012 3:30 pm 
Site Admin

Joined: Mon Apr 30, 2007 8:30 pm
Posts: 2037
http://www.azcentral.com/news/articles/ ... n-law.html

Indiana legislators want to defend immigration law

Sept. 5, 2012 02:47 PM
Associated Press.

INDIANAPOLIS -- Three state senators say Indiana's attorney general effectively nullified their votes when he opted not to defend sections of a state immigration law he said were rendered invalid when the U.S. Supreme Court struck down similar sections of an Arizona law.

Republican Senators Mike Delph, Brent Steele and Phil Boots submitted documents Wednesday in U.S. District Court asking Judge Sarah Evans Barker to allow them to defend the parts of the law the attorney general wouldn't.

The attorney general's office said in July it would recommend that Barker strike down most of the portions of the Indiana law that enable police to make warrantless arrests based on certain common immigration documents. It said the high court ruling in June rendered those sections of the Indiana law invalid. Barker already had issued a decision barring the 2011 law from taking effect until she could decide its constitutionality.

The attorney general's office said it would still seek to keep the power to arrest immigrants for whom a 48-hour detention order has been issued.

The senators, who are represented by lawyers from the Immigration Reform Law Institute in Washington, argue in the 16-page motion that the warrantless arrest provisions in the two states' laws are "vastly different." The document claims the Indiana law allows such arrests only in three specific situations that require input from the federal government, unlike the broader powers granted police by the Arizona law. They argue that Indiana's law is consistent with the Supreme Court's Arizona decision.

In the document, the senators, who authored the immigration bill, say they have a right to intervene as defendants because even though the Legislature passed it, the law won't be allowed to take effect if it isn't defended. That effectively robs the lawmakers of their vote, they argue.

Ken Falk, legal director of the American Civil Liberties Union of Indiana, said the civil rights group would oppose letting the senators enter the case.

"We do not believe there is any merit to the intervention request by the three legislators and believe that this further attempt to defend an unconstitutional and misguided law will lead to additional fees and expenses to be borne by the taxpayers of the State of Indiana," Falk said in an email Wednesday.

Attorney general's office spokesman Bryan Corbin said the office respected the senators' views but believed it was the state's sole representative in legal challenges by law and had "vigorously defended" the immigration law until the Supreme Court ruling.

"Now that the U.S. Supreme Court has ruled that warrantless arrest provisions of such laws are unconstitutional, we had a duty to notify the federal court while continuing to defend the portions of the law that are defensible," Corbin said in an email. "It is up to the court as to whether to allow others to intervene at this point."

 Post subject: Re: AG Zoeller won't defend immigration law, Delph intervenes
PostPosted: Sun Sep 09, 2012 3:34 pm 
Site Admin

Joined: Mon Apr 30, 2007 8:30 pm
Posts: 2037
http://posttrib.suntimes.com/opinions/1 ... 8accc6128b

Zoeller’s conscience clear on immigration

By Greg Zoeller Guest columnist September 7, 2012 2:36PM

In today’s politically charged environment, where accusations are leveled against a person’s character purely for political gain, the unique role of the Indiana attorney general makes the AG an easy target.

I have been proud to serve the people of Indiana as their elected attorney general, the lawyer for the state. Other people, including state officials, sometimes disagree with my legal decisions. Disagreements are healthy and are welcomed; though I have been warned that some people seeking attention might try to manufacture misleading complaints about the work 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.

Some background: When the federal government failed to enforce existing immigration laws, the Indiana General Assembly in 2011 felt public pressure to do something at the state level to deal with illegal immigration. The Legislature passed a new state law, Senate Enrolled Act 590, that — among other things — allowed warrantless arrests of some immigrants. The ACLU filed a legal challenge against it.

Though I had serious reservations about SEA 590 that I openly shared during the 2011 session, my legal obligation as attorney general required me to defend from legal challenges the statutes the Legislature had passed. My office vigorously defended SEA 590 in federal court, and we worked hard to counter the incorrect aspersion that Indiana’s law enforcement officers somehow would oppress undocumented immigrants.

In defending our Indiana statute, my office signed on to a friend-of-the-court brief supporting Arizona, whose own state immigration law was being challenged in the U.S. Supreme Court. Knowing the Supreme Court’s decision would be conclusive, we asked the federal court in Indiana to pause temporarily the litigation in our case until the Supreme Court could rule on the Arizona statute. It ruled June 25, striking down most of that law as unconstitutional.

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

Some people questioned whether this decision violated my obligation to my state clients. Some have even questioned my professional ethics as an attorney.

My answer is to make this a teaching moment to explain the unique role of the attorney general in our government. Who is the client of the Indiana attorney general? As state government’s lawyer, the AG’s Office represents multiple “clients” who all hold different views on important legal issues.

For all of us in state government, our first responsibility is to the Constitution and the people.

An officeholder is not the office, an agency head is not the agency, one justice is not the entire Supreme Court, and one elected legislator is not the entire Legislature. I have had the unenviable task of explaining this fact to government officials who disagreed with my decisions. I respect their views, but the oath I took as AG means I must acknowledge that, at times, the law is not what we might want it to be, and must shepherd state legal resources in a responsible manner.

Sometimes, my state clients mistakenly believe they are responsible for making legal decisions about a case, as a private client who hires a private lawyer might be. In fact, that responsibility rests not with the client, but solely with the attorney general.

Part of the AG’s job description is to reconcile conflicting legal views of multiple officials and harmonize our state’s legal position before the courts, so we don’t have competing viewpoints creating chaos for judges in choosing which voice to listen to. Ultimately, my true client is our justice system and the people of Indiana, rather than individuals in government positions.

Under the Rules of Professional Conduct, attorneys must maintain high standards in fulfilling our duty to represent the best interests of our clients above our own interests or those of our law firm. In government, the practice of law requires an even higher duty to the public that places additional obligations on state attorneys and the AG.

While it would be disappointing and disruptive if some try to exploit the illegal immigration issue through an ethics complaint, I have a clear conscience. I rest easily, knowing I made the right decision, to defend the parts that are defensible, to not defend the part that is clearly unconstitutional, to uphold the Constitution and to speak truthfully to the people of Indiana whom I serve.

Greg Zoeller is the attorney general
for the state of Indiana.

 Post subject: Re: AG Zoeller won't defend immigration law, Delph intervenes
PostPosted: Sun Sep 09, 2012 3:44 pm 
Site Admin

Joined: Mon Apr 30, 2007 8:30 pm
Posts: 2037
http://www.ogdenonpolitics.com/2012/09/ ... -with.html

Ogden on Politics
“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.” Haile Selassie

Saturday, September 8, 2012

Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client

A nasty dispute has broken out between at least three Republican state senators and Republican Attorney General Greg Zoeller over the AG's decision to concede that Indiana's immigration law should suffer the same fate as the Arizona law, most of which was held unconstitutional by the United States Supreme Court.

The state senators, Mike Delph, Brent Steele, both attorneys, and Phil Boots, have filed to intervene in the case. At the same time they also filed a response to summary judgment, arguing at great length how the Indiana law varies from the Arizona law and why it should be upheld as constitutional. I attempted to upload the documents onto Google Documents, but they didn't load right. So instead I am linking to the Indiana Law Blog, which has links to the documents.

Today Attorney General Greg Zoeller fired back with a letter outlining his position. Hopefully the link will get past the Indianapolis Star's paywall.

The dispute raises interesting legal questions as well as highlights an incredible claim Zoeller makes about his authority as Attorney General.

First let me outline facts leading up to the dispute. Several plaintiffs brought an action to enjoin enforcement of Indiana's Immigration law, which bill Delph, Steele and Boots co-authored. The named defendants were the City of Indianapolis, City of Franklin and the Marion County and Johnson County prosecutors. The City of Franklin was subsequently dismissed from the case.

Attorney General Greg Zoeller, on behalf of the defendants, argued that proceedings in the case should be stayed pending the outcome of the Supreme Court's consideration of the Arizona immigration statute. During the 2011 legislative session, while Indiana's immigration bill was being considered, Zoeller announced his signing of the "Indiana Compact," a joint statement by religious, business and education leaders that illegal immigration is a responsibility of the federal government and states did not have the authority to act on the issue. The legislature defied Zoeller and passed the immigration law anyway.

In June 2012, the United States Supreme Court decided Arizona v. United States, finding most of the Arizona statute to be unconstitutional. Zoeller then announced that, because of that decision, he wouldn't defend parts of the Indiana law in court. Senators Delph, Steele and Boots, however, say that Indiana's law is different from Arizona's and should at least be defended in court, a legal responsibility of the Attorney General. Zoeller thus far has refused to budge. As a result, the senators filed a motion to intervene in federal court as an interested third party.

From the outset, I voiced concerns about the immigration bill. My concern, however, was the merits of the proposal, not the legislature's authority to adopt the law. I don't believe, as some do, that the federal government has completely preempted the immigration legal arena as claimed by Zoeller in signing the Indiana Compact. Even the United States Supreme Court did not find 100% preemption, the position of Zoeller and the other signers of the Indiana Compact.

It is the duty of the Attorney General of the State of Indiana to argue to uphold the validity of the laws passed by the Indiana General Assembly. If the Attorney General feels he has a conflict, or for some other reason doesn't feel comfortable going forward with the representation, the law allows him to retain other counsel to act in his place. In taking the positions Zoeller has, he needs to do the right thing now and recuse himself, appointing legal representation that can offer a good faith defense of the statute.

That is actually a somewhat separate matter from the right of the state senators to intervene. The standards for intervening are set forth in Rule 24 of the Federal Rules of Civil Procedure. The fact that Zoeller is refusing to defend the statute does strengthen the senators' case for intervention under that rule.

The dispute though and Zoeller's letter, sheds light on the surprising view the Attorney General takes toward his powers. Let me quote from the letter:

Sometimes my state clients mistakenly believe they are responsible for making legal decisions about a case, as a private client who hires a private lawyer might be. In fact that responsibility rests not with the client but solely with the attorney general. Part of the AG’s job description is to reconcile conflicting legal views of multiple officials and harmonize our state’s legal position before the courts, so that we don’t have competing viewpoints creating chaos for judges in choosing which voice to listen to. Ultimately, my true client is our system of justice and the people of Indiana, rather than individuals who hold government positions.

Let me spell out in English what the Attorney General is saying. Zoeller takes the position that he is not only the attorney for the State of Indiana, he is also the State of Indiana. Zoeller takes the position he is not only the attorney, he is also the client. According to Zoeller, it does not matter if Governor Mitch Daniels calls him up and says he wants to settle a case involving the State. Zoeller's position is that he, and he alone, decides whether to settle a case...the Governor's position does not mattter.

The argument that because state government consists of many different entities, the AG has complete authority over state officials and agencies when it comes to litigation and doesn't have to listen to "clients" is nonsensical. Almost all of the numerous executive agencies fall directly under the administrative authority of the Governor. If the AG is unhappy that a recalcitrant agency chief won't follow his sage advice on litigation, the AG can always call the Governor and ask that the agency director be overruled. The AG mistakenly thinks he has the power to overrule his own clients and take positions contrary to their wishes, while doing so in their name in court.

It is the same thing with agencies in the other branches. There are individuals who supervise those agencies. They are the ultimate clients of the Attorney General. The Attorney General is not the client.

Zoeller's position, taken to its logical conclusion, would give him extraordinary authority in our government system. He could overrule the Governor and the Indiana General Assembly. Fortunately, our system of government is not set up like that.

Posted by Paul K. Ogden at 9:57 PM

Labels: Brent Steele, Greg Zoeller, Immigration, Mike Delph, Phil Boots 1 comment:

Guest said...
We suffer from "terminal jusisprudence" -All the while, there are people who are breaking the law by staying here illegally. Seems that all this quibling is just an excuse to not follow common sense and the laws. The state law should duplicate the fed law, how can they argue against themselves. I will say that we the taxpayers -you know the ones that follow the laws and pay the taxes are fed up with it all.

September 9, 2012 2:38 PM

About Me
Paul K. Ogden I have been active in the Marion County Republican organization since 1986. I have served as a precinct committeeman in Pike Township, a Vice Ward Chairman and Ward Chairman. I was President of the Pike Township Republican Club. I have also been a candidate for office and worked on a number of campaigns. I have worked in every branch of government, including stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and worked three sessions at the Indiana State Senate. In addition to practicing law with the firm Roberts and Bishop, I teach political science at the University of Indianapolis.

Awesome Inc. template. Powered by Blogger.

 Post subject: Re: AG Zoeller won't defend immigration law, Delph intervenes
PostPosted: Sat Sep 29, 2012 8:29 am 
Site Admin

Joined: Mon Apr 30, 2007 8:30 pm
Posts: 2037
http://journalgazette.com/article/20120 ... 3/0/SEARCH

Published: September 26, 2012 3:00 a.m.

Web letter by Cheree Calabro: Zoeller has shown unfitness to defend immigration law

In his Sept. 12 guest commentary, Indiana Attorney General Greg Zoeller claims to have a clear conscience about his defense of Indiana’s immigration enforcement law, Senate Enrolled Act 590. I disagree with his self-assessment of his performance.

Zoeller’s campaign against this legislation began in February 2011, the first day that SEA590 was debated, when he participated in the ceremonial signing of an anti-law enforcement petition, the Indiana Compact. This media event took place in the center of the Statehouse. He became a virtual poster boy for the Indiana Compact when he attached his name and office to it and had his picture on the front pages of newspapers across Indiana. This same “compact strategy” has been used in other states to prevent any state immigration enforcement. Influential businesses and organizations that benefit from illegal immigration sign these compacts hoping to intimidate state legislators from passing immigration enforcement laws.

Everyone agrees they are unhappy with the results of the federal-government-only approach to immigration enforcement. However, these compact groups and Zoeller seemingly prefer that approach instead of authorizing the states to assist with immigration enforcement the same way they assist with enforcement against other federal crimes such as illegal drug use and bank robbery.

After Indiana’s immigration bill became law, a well-known national organization that works to prevent states from passing immigration enforcement laws hailed Zoeller and the Utah attorney general (and Utah Compact-signer) as champions of a new way to stop such state legislation. This “Fly-In for Champions” forum took place in Washington, D.C., on a weekday in July. That same month, Zoeller chose not to appeal the preliminary injunction in the Buquer/SEA590 case even though his office had adequate resources to do so.

On July 31, the attorney general’s office issued a long news release explaining that Zoeller would not fully defend Indiana’s immigration law due to the recent Supreme Court ruling on a similar, but not identical, Arizona law. I’m not a lawyer, but as his constituent I was very disturbed to see Zoeller acting as judge and jury instead of our defense attorney. Since the Buquer case was already before the court, Zoeller could have continued to defend it fully and let the judge rule on the effect of the U.S. Supreme Court ruling.

Further blurring the line between the attorney general’s office and the compact groups, the July 31 news release recommended that the media contact a former state representative who is a long-time opponent of state immigration enforcement laws and spokesman for the immigration group behind the Indiana Compact. The media complied. This recommendation was eliminated from the release posted on the attorney general’s website.

In summary: Before the bill was even written, during the debate in the General Assembly and after SEA590 was signed into law, Zoeller has publicly opposed this law. He and his office have maintained an unusually close relationship with anti-SEA590 groups. He has blurred the line to such an extent that I cannot tell the difference between these groups and his office. The attorney general obviously has deeply held beliefs that differ from the majority of Hoosiers and their elected representatives. Despite evidence to the contrary, he wants us to believe that he can set aside his personal feelings and direct the vigorous defense of SEA590.

In 2004, the Kansas attorney general recused himself from defending immigration legislation with which he disagreed. Zoeller should do likewise and let others defend the law as State Sens. Mike Delph, Phil Boots and Brent Steele have offered to do in their court filing to intervene.


Co-founder, Indiana Federation for Immigration Reform and Enforcement


© Copyright 2012 The Journal Gazette. All rights reserved. Neither this material nor its presentation

 Post subject: Re: AG Zoeller won't defend immigration law, Delph intervenes
PostPosted: Wed Oct 17, 2012 7:39 pm 
Site Admin

Joined: Mon Nov 27, 2006 9:48 pm
Posts: 36
Nice job filing the articles on the forum Cheree.

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