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July 7, 2013

HOWEY: What is the cost of controversy?

INDIANAPOLIS —  What is the cost of controversy to you, the taxpayer?

In the past five years, legislation passed by the Indiana General Assembly has defunded Planned Parenthood and created new immigration laws, and there have been moves to amend the Indiana Constitution to prohibit same-sex marriage.

In addition, the Indiana attorney general has challenged a key provision in the Affordable Care Act, and the Indiana treasurer attempted to thwart the 2009 merger of Chrysler and Fiat.

The Republican-dominated legislature passed these controversial measures over increasingly smaller and weaker Democratic minorities. The responding Democratic battle cry often has been: See you in court.

And we’ve seen the law defunding Planned Parenthood and parts of the immigration law struck down by the federal appellate courts.

In fact, from 2008 to the present, the state has paid $916,426.37 in plaintiffs’ attorneys’ fees to American Civil Liberties Union of Indiana in 16 lawsuits where ACLU prevailed against the state.

Last week, Indiana dodged another showdown when the Bureau of Motor Vehicles reinstated the specialty plate of a gay-youth advocacy group. ACLU attorney Ken Falk agreed to dismiss yet another federal lawsuit in return for the restoration of the plates.

The irony here is that Hoosier lawmakers and officeholders - many carrying a copy of the U.S. Constitution in their pockets - routinely pass legislation that fails to pass constitutional muster.

When seeking the cost of controversy, the easiest answer comes in the Chrysler/Fiat merger challenge by Treasurer Richard Mourdock, who paid $2 million to the New York law firm of White & Case in a case the U.S. Supreme Court refused to hear.

Many of the other controversial cases did end up with Indiana Attorney General Greg Zoeller’s office. And this is where the question of how much do Indiana taxpayers spend on these cases winds up in an “apples vs. oranges” dynamic.

Since 2001, the office of attorney general has seen its budget increase from about $11.30 million in 2001, to $16.81 million in 2009 the year Zoeller took office, to $19.03 million in 2013-14. The state budget is $15 billion annually. The AG budget that went into effect on July 1 is almost $3 million more than the budget passed in 2011.

“It is hard to do billable hours because our business model is almost opposite that of the private sector,” Zoeller said of his 150 attorney office. “We have thousands of cases to manage. You move resources around and designate resources on where the work flow is. Nobody gets bonuses for running up a bunch of hours. It’s just the opposite.”

Zoeller said that in some cases the courts will award a fee. “So when we win a case and they ask for fees, they’ll ask for a billable track. We do go back and try and calculate and we always base it on the billing rate of the firm against us,” he said.

Zoeller confirmed that he intends to approve payment of $155,000 in attorney fees to ACLU of Indiana, which prevailed in Buquer v. Indianapolis, the legal challenge to the 2011 immigration statute.

The most sensational case was the 2011 defunding of Planned Parenthood that passed by wide margins in both the Indiana House and Senate and was signed into law by then-Gov. Mitch Daniels.

In October of 2012, the U.S. 7th Circuit Court of Appeals in Chicago, by a 2-to-1 decision, agreed with the lower court that had blocked enforcement of the Indiana law. The 7th Circuit panel reversed part of the lower court’s ruling of last year.

Zoeller explained, “If you pay money into a corporate structure and they’re able to use the fungibility of money so that it pays the salaries and all those kinds of things can be moved around, you really can’t avoid the indirect support of taxpayers for the abortion services that aren’t supposed to be funded at all with taxpayer money. These were unasked questions. By definition, that’s why we thought it was worthy of a Supreme Court review because there is no case that cites the unasked answers."

PPIN President and CEO Betty Cockrum saw it as a political stunt. “We’ve been fighting on behalf of our patients and their access to lifesaving, preventive care such as Pap tests, breast and testicular exams, birth control and STD testing and treatment,” she said. “While the state has been trying to score political points and wasting taxpayer dollars, we’ve been standing up for the Hoosiers who count on us every day.”

Zoeller also challenged the Affordable Care Act over the threat of loss of Medicaid funding. He called it “coercion of another sovereign” by the federal government. “We actually won that case on that point,” Zoeller said.

That could be a Pyrrhic victory for Hoosier taxpayers, if the feds turn down Gov. Pence's plan to use the Healthy Indiana Plan to expand Medicaid, leaving on the table billions of dollars. Pence, in turn, sees danger in costs once the feds reduce coverage from 100 percent to 90 percent after three years.

Zoeller makes no apologies for taking on controversial cases. “I’m not going to sit out the most important constitutional cases of the day because they might require some hard work on our part,” he said.

 

The columnist publishes at www.howeypolitics.com. Find him on Twitter @hwypol

 

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