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March 29, 2013

Judge: Indiana senators can’t defend immigration law

INDIANAPOLIS — A federal judge on Friday rebuffed three Indiana lawmakers who asked to defend parts of the state’s immigration law in court after the attorney general declined to do so.

U.S. District Judge Sarah Evans Barker, who has barred the 2011 law from taking effect until she can rule on its constitutionality, said allowing the senators to intervene would violate the state Constitution’s declaration that the attorney general’s office is state government’s sole legal representative.

“Allowing the three individual legislators to intervene here in their official capacities as State Senators not only would conflict with this well-settled state law, but would provide the legislators a trump card with respect to the Attorney General’s statutorily derived discretion in this context,” Barker wrote.

Republican Senators Mike Delph, Brent Steele and Phil Boots — who authored the immigration law — had asked Barker to let them defend parts of the law Attorney General Greg Zoeller would not.

Zoeller’s office has said it would recommend Barker strike down most of the portions of Indiana’s law that would allow police to make warrantless arrests based on certain common immigration documents. The office said last year’s U .S. Supreme Court decision striking down similar sections of an Arizona law rendered those parts of Indiana’s law invalid. However, the office said it would defend a provision allowing for local police to arrest immigrants for whom federal authorities have issued a 48-hour detention order.

The senators, who are represented by lawyers from the Immigration Reform Law Institute in Washington, had argued the warrantless arrest provisions in Indiana’s and Arizona’s laws are “vastly different,” and that Indiana’s law is consistent with the Supreme Court’s decision. They also argued they have a right to intervene as defendants because the law won’t be allowed to take effect if it isn’t defended, which they say effectively robs them of the votes they made in the Legislature.

“I take my responsibility to defend the statutes the Legislature passes from legal challenge as an important role of the office I hold. The court recognized that the Office of the Attorney General has faithfully defended all provisions of this statute until the U.S. Supreme Court last June said that state-level warrantless arrest laws are preempted as unconstitutional,” Zoeller said in a statement Friday. “We are pleased that Judge Barker’s ruling has underscored and reiterated the responsibility of my office to defend state statutes as is our solemn obligation.”

The three senators did not immediately return phone calls from The Associated Press seeking comment. A Reform Law Institute spokeswoman said the attorney who represented the senators was unavailable to comment.

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