Prosecutors cite ethics rules to Hill in abortion lawsuit

Olivia Covington for www.theindianalawyer.com

Three Indiana prosecutors are renewing their calls for Indiana Attorney General Curtis Hill to concede on their behalf the merits of lawsuit that blocked a 2018 abortion law and told the AG’s staff in an email that Hill is obligated under the Indiana Rules of Professional Conduct to follow their directive as his clients. Hill, however, maintains he is authorized to defend the statute on behalf of his “ultimate client:” the people of Indiana.

Planned Parenthood of Indiana and Kentucky sued the commissioner of the Indiana State Department of Health, the members of the Indiana Medical Licensing Board and the prosecutors of Marion, Lake and Monroe Counties in April after Gov. Eric Holcomb signed Senate Enrolled Act 340 into law the previous month. SEA 340 required abortion providers to report all “abortion complications” and to submit to annual inspections. A judge issued an injunction enjoining the law from taking effect, but Hill filed an answer a day later in which the prosecutors are named despite their objections.

Marion County Prosecutor Terry Curry again asked Hill’s office to admit the allegations of the complaint on behalf of him, Lake County Prosecutor Bernard Carter and Monroe County Prosecutor Chris Gaal. In an email sent Thursday to Aaron Negangard, Hill’s chief deputy, Curry said the prosecutors asked Hill’s office May 2 to admit the allegations on their behalf and file an amended answer that admits the allegations of the complaint on behalf of the prosecutors.

“In response on May 3, you sent a copy of the Attorney General’s press release which stated in part: ‘While prosecutors Curry, Gaal and Carter share the opinion that this case should not be defended, they also share no authority to make that call,’” Curry wrote in the email, which was provided to Indiana Lawyer.

“… Contrary to the AG’s release, we did not state that the ‘case should not be defended,’” Curry continued. “We fully expected that the AG would defend the constitutionality of the abortion-related bill on behalf of the other state defendants.

“By statute, the AG is our attorney in such civil actions. We are the client of the AG as named defendants,” he said. “Pursuant to Rule 1.2(a) and Comment (1) of the Indiana Rules of Professional Conduct, an attorney must abide by the client’s ‘ultimate authority’ to decide the objectives of the attorney’s representation.”

But in a statement to Indiana Lawyer, Hill held his ground.

“The Attorney General is authorized to defend state statutes in court as he works on behalf of his ultimate client, the people of Indiana,” Hill’s office wrote in an email to IL. “Prosecutors cannot unilaterally veto legislation passed by the General Assembly.

“If these prosecutors choose not to enforce the statute, they are accountable to their voters,” he said.

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According to the complaint, which the ACLU of Indiana filed on behalf of PPINK, SEA 340 violated constitutional protections under the 14^th Amendment’s Due Process and Equal Protection clauses. That’s because the “abortion complications” reporting requirements was vague and the annual inspection requirement was not imposed on other medical facilities, PPINK said.

Shortly after the complaint was filed in the U.S. District Court for the Southern District of Indiana, Curry, Carter and Gaal — all Democrats — released a statement saying they had directed Hill, a Republican, to concede the merits of the case on their behalf. The three prosecutors are named as defendants in the suit because PPINK operates abortion clinics in their counties.

“We are tired of being drawn into the annual act of legislative futility to pass abortion-related bills, which inevitably results in lawsuits at taxpayer expense,” Curry said in May, referencing the fact that every abortion-related bill passed in Indiana since 2016 has been struck down by federal courts.  Curry also said in May that Indiana had paid nearly $300,000 in legal fees to the ACLU of Indiana after courts struck state abortion legislation as unconstitutional.

“When we took office, we swore a duty to uphold both the federal and state constitutions, and this law appears just as unconstitutional as the last few attempts to impose such restrictions,” Carter said in May.

Hill immediately hit back, claiming the three prosecutors “share no authority” to make the decision not to defend the state against the lawsuit. “Mr. Curry’s ‘directive’ to me to concede the constitutionality of an Indiana statute has zero force or effect,” Hill said at the time.

Southern District of Indiana Judge Richard L. Young granted PPINK’s motion for a preliminary injunction against SEA 340 – which was scheduled to take effect on July 1 – on June 28, and the next day the AG’s office filed an answer to complaint that denied the allegations against the bill. The answer was filed on behalf of all of the named defendants, including the three prosecutors.

Online court records show little substantive action has been taken in the case of Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, et al., 1:18-cv-01219, since the state filed its answer on June 29. A pretrial phone conference has been scheduled for Aug. 31 before Magistrate Judge Doris L. Pryor.

In a separate case, Hill has come under fire from Indiana Secretary of State Connie Lawson for his intervention in the Marion County early voting case. Hill is seeking to appeal a consent decree entered by parties in that case while Lawson, whose office is charged by law with overseeing elections, has asked Hill to withdraw. He said he would not.

The embattled Hill has been asked to resign by Gov. Eric Holcomb and Democratic and Republican leaders over allegations he groped a lawmaker and legislative aides. Hill has denied the allegations.