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September 16, 2012

FLASHPOINT: A clear conscience in the handling of immigration case

INDIANAPOLIS — 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 of Indiana.

Other people including state officials sometimes disagree with my legal decisions. Disagreements are healthy and are welcomed; though 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.

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; and 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 requires me to defend from legal challenges the statutes the Legislature has 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 would somehow 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 U.S. 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 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.

Some people questioned whether this decision violates 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 system.

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 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.

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.

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