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Defending the Defense

The Attorney General’s office addresses the responsibility of defending the state’s marriage law

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The Indiana General Assembly sets the Attorney General's budget which covers operating expenses for any and all cases worked. The AG's office says there was no "special" money used to defend the state's marriage law. - MARK A. LEE
  • Mark A. Lee

  • The Indiana General Assembly sets the Attorney General's budget which covers operating expenses for any and all cases worked. The AG's office says there was no "special" money used to defend the state's marriage law.

It has been just over two weeks since the U.S. Supreme Court rejected Indiana’s cert petition and effectively changed marriage equality in the state. Although the dust has settled and marriage rights are now recognized, Indiana Attorney General Greg Zoeller continues to field criticism and questions about the role his office played in defending the now outdated marriage law and all costs associated with that defense.

Bryan Corbin, spokesman for the AG’s office, took the time to answer specific questions about the role of the Attorney General’s office in one of the most heated debates to travel through the federal court system.

NUVO: You have stated several times that the money spent to defend the state’s traditional marriage statue was within the Attorney General’s budget.

Bryan Corbin: That is correct. The operations of the Attorney General’s Office are funded out of our annual budget of approximately $19 million that the Legislature approved in April 2013 and that funds our legal representation in all our cases.

NUVO: What part of the AG’s budget specifically does this come out of? What is it typically used for?

Corbin: Approximately $17.7 million of our overall budget is for personnel (attorneys, paralegals, law clerks, staff) who constitute state government’s law firm: the Attorney General’s Office. Another $1.2 million is for operating expenses. Together this covers our work representing the State in court in approximately 2,700 civil lawsuits and 1,300 new criminal appeals each year, including the case you asked about.

NUVO: Can you give a specific figure from the budget line item that was spent specifically on the marriage equality fight?

Corbin: As the state government’s lawyer whose budget is determined by the Legislature in advance, we do not track billable hours per case or charge our state government client billable hours like a private law firm would. Individual cases do not have dedicated or individual line items in the budget; we fund our attorneys’ salaries from the personnel budget and all non-salary expenses from the operation budget for all cases. Our in-house salaried attorney who was assigned to this case would have been paid the same salary whether plaintiffs’ lawyers filed this lawsuit or not.

NUVO: Is the budget drained of funds?

Corbin: No, neither the personnel nor operational budgets of the office are exhausted. One attorney worked on the case over a six-month period amid his caseload of many other unrelated cases that he handles. Unlike a criminal trial or a private class-action lawsuit that involves substantial discovery and lengthy depositions, legal work on a legal challenge like this is quite streamlined, as there usually is not significant discovery to obtain nor witnesses to depose. A challenge to a statute typically involves straightforward battle of legal arguments between one side’s lawyer and another side’s lawyer, and the court decides. As mentioned, our attorney is an on-staff salaried attorney who is assigned multiple cases simultaneously and whose compensation would have been the same whether this marriage case had been filed or not.

NUVO: Did the legislature approve the AG’s budget with the idea that money would be spent to defend the state’s marriage law?

Corbin: The agency’s 2014 budget was approved by the Legislature in April 2013, one year before the lawsuit was filed. We cannot speak for the 150 legislators, but when the Legislature passes a state budget allocating funds for the state government’s law firm for the next two fiscal years, it is to pay for representing the State in court on all types of future legal matters that could arise. As mentioned, at any given time we handle approximately 2,700 civil lawsuits and 1,300 new criminal appeals as lawyer for the State.

NUVO: You have also stated on several occasions stated that no outside counsel with billable hours was used to defend Indiana’s marriage law.

Corbin: Correct. No outside counsel was used.

Thomas Fisher has served as Indiana's Solicitor General since the position was created in 2005.
  • Thomas Fisher has served as Indiana's Solicitor General since the position was created in 2005.

NUVO: Were there any new hires in the department during this time to help with the workload associated with defending the state’s marriage law?

Corbin: Not specifically for this case. During the six-month duration of this case, some new law clerks joined the Attorney General’s Office to fill vacancies, but none were hired specifically to work on this case; and now that the case is over, none are being let go.

NUVO: How many people in the AG’s office were dedicated to this project? Were they exclusive or was the case a part of their regular workload?

Corbin: No one person was devoted “exclusively” to the marriage lawsuit. Solicitor General Thomas M. Fisher was the salaried attorney in our office who entered an appearance in this case, but as noted during the six-month duration of this case he continued to work on his caseload of other, unrelated cases. He was assisted by other AG’s Office staff members, amid their duties in many other cases that constitute our agency caseload.

NUVO: Was all of the work specific to the defense of Indiana’s marriage law specific to the Office of the Solicitor General or was some of the work delegated to different departments?

Corbin: The Solicitor General Division is a division of the Attorney General’s Office, not an office in itself. The Solicitor General was the attorney who entered an appearance in the Baskin litigation, with assistance by others in our office.

NUVO: The position of Solicitor General was created in 2005 in the AG administration of Steve Carter. What prompted the creation this office?

Corbin: Most state AG offices around the nation follow the model of having a Solicitor General who represents that state in the U.S. Supreme Court, federal courts and the state’s supreme court in important matters of constitutional law and complex legal challenges. The U.S. Department of Justice has its own U.S. Solicitor General who represents the federal government before the U.S. Supreme Court, and most state AG offices now follow that model in utilizing their own solicitors general.

NUVO: What changed in the Attorney General’s office, or the general landscape, that required the creation of this office?

Corbin: The development of state solicitors general in state AGs offices goes back to the mid-1980s and the view expressed by then-Chief Justice William Rehnquist that states should be represented in the U.S. Supreme Court by experienced Supreme Court appellate counsel. That led the National Association of Attorneys General — a research-training organization that works with state AGs in all 50 states — to establish the Supreme Court Project, which in turn encouraged states to develop solicitor general positions, and many states began to do so. Prior to AG Steve Carter, previous Indiana attorneys general hired lawyers with the title “special counsel” who handled U.S. Supreme Court work. Thomas M. Fisher was originally hired as special counsel in 2001. When AG Steve Carter formally created the solicitor general position in 2005, Mr. Fisher continued on in that new role.

NUVO: How has the office of Solicitor General changed in almost 10 years of existence?

Corbin: While the position might be more high-profile now, the duties have remained largely consistent over the past decade. Overall volume of cases might be somewhat greater than a decade ago as is true for the entire Attorney General’s Office caseload. Our office and AG offices in other states routinely participate in submitting amicus briefs (friend of the court briefs) that are filed in the U.S. Supreme Court and other federal courts; we routinely join briefs that other states author and occasionally author briefs that other states join, and that process is supervised by the Solicitor General. The U.S. Supreme Court has encouraged states through their state AG offices to submit amicus briefs in cases of importance to state governments.

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