Lawmakers Fight Against Illegal Immigration Might Be Illegal
Three Indiana lawmakers say they want to defend parts of the state’s immigration law in federal court because Attorney General Greg Zoeller won’t. And while they are asking a federal judge to intervene on the state’s behalf, Indiana law may not allow them to do so.
Republican State Senators Mike Delph of Carmel, Phil Boots of Crawfordsville, and Brent Steele of Bedford have filed motions in federal court to intervene and defend the portions of Indiana’s illegal immigration law which Zoeller’s office says have been made unconstitutional by the recent Supreme Court decision regarding Arizona’s immigration law, particularly the provision allowing for warrantless arrests.
The three lawmakers are being represented by the Immigration Reform Law Institute in Washington. However there are several provisions of state law which may make that illegal.
IC 2-3-8-1 – Private attorneys
Sec. 1. The House of Representatives and Senate of the Indiana General Assembly are hereby authorized and empowered to employ attorneys other than the Attorney General to defend any law enacted creating legislative or congressional districts for the State of Indiana.
(Formerly: Acts 1972, P.L.17, SEC.1.)
IC 2-3-9-2 – Lawsuits against state representatives; employment of attorneys to defend; costs
Sec. 2. (a) This section applies if any of the following occurs:
(1) An individual is sued in the individual’s capacity as a state representative.
(2) An individual is sued in the individual’s capacity as an agent of the Indiana house of representatives.
(3) The Indiana house of representatives is sued as a body.
(b) Notwithstanding IC 4-6, the speaker of the house of representatives may employ one (1) or more attorneys necessary to defend a lawsuit described in subsection (a) without obtaining the consent of the attorney general. If a member or an agent of the minority party of the house of representatives is a defendant in the lawsuit, the speaker shall consult with the minority leader of the house of representatives before employing an attorney under this section.
(c) The costs of employing an attorney under this section shall be paid from appropriations made to the house of representatives and shall be considered a necessary expenditure of the house of representatives.
As added by P.L.2-1994, SEC.1.IC 2-3-9-3 – Lawsuits against state senators; employment of attorneys to defend; costs
Sec. 3. (a) This section applies if any of the following occurs:
(1) An individual is sued in the individual’s capacity as a state senator.
(2) An individual is sued in the individual’s capacity as an agent of the Indiana senate.
(3) The Indiana senate is sued as a body.
(b) Notwithstanding IC 4-6, the president pro tempore of the senate may employ one (1) or more attorneys necessary to defend a lawsuit described in subsection (a) without obtaining the consent of the attorney general. If a member or an agent of the minority party of the senate is a defendant in the lawsuit, the president pro tempore shall consult with the minority leader of the senate before employing an attorney under this section.
(c) The costs of employing attorneys under this section shall be paid from appropriations made to the senate and shall be considered a necessary expenditure of the senate.As added by P.L.2-1994, SEC.1.
IC 4-6-5-3 – Written consent; employment of attorneys or special general counsel
Sec. 3. No agency, except as provided in this chapter, shall have any right to name, appoint, employ, or hire any attorney or special or general counsel to represent it or perform any legal service in behalf of such agency and the state without the written consent of the attorney general.
(Formerly: Acts 1943, c.70, s.3.) As amended by P.L.5-1984, SEC.21.
The lawmakers argue that by refusing to defend portions of the law, the Attorney General is effectively robbing them of their votes.
The AG’s Office would not formally comment on the intervention, but spokesman Bryan Corbin did release the following statement via e-mail…
“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. It is up to the court as to whether to allow others to intervene at this point.”
