As of this writing Curtis T. Hill, Jr. is midway though his 30-day disciplinary suspension from the practice of law. On June 18, 2020 he will be reinstated automatically to the practice of law. Presumably, he will resume on that date his role as the duly elected Attorney General of the State of Indiana. AG Hill’s disciplinary suspension was declared by the Indiana Supreme court on May 11, 2020 effective May 18, 2020. Hill appointed a staffer to fill in as interim Attorney General from May 18, 2020 through June 17, 2020.
The day after the SCOTSI disciplinary ruling Gov. Holcomb filed (through his own lawyers) a Motion to Intervene in the disciplinary case (cause no. 19S-DI-156) and a request for clarification. The Governor was looking for a go-ahead to declare a “vacancy” in the office of the AG that the Governor might fill, thus ending the Hill era as AG and thereby relieving state Republicans of a political embarrassment in an election year.
I have to keep reminding myself that there is no office of Attorney General mentioned in the Constitution of the State of Indiana. Rather the Office of Attorney General was created by statute. The statutory origin of the AG is now codified at IC 4-6-1-2, the current version of the law dating back to 1941, before which the State of Indiana somehow survived without an AG. Within the statutory scheme there is IC 4-6-1-3 requiring that the AG must be “duly licensed to practice law” in Indiana.
What Governor Holcomb had in mind (I think) is that Curtis Hill could not be AG while suspended from the practice of law. It seems that Hill agreed to the effect that he appointed his own fill-in for the 30-day suspension. But Holcomb would prefer (I think) to declare a “vacancy” in the office of the AG and to appoint a replacement to serve out Hill’s unexpired term.
It was May 18, 2020 when the SCOTSI answered the Governor’s request for clarification by declining to give “an advisory opinion.” This result was certainly predictable. The Governor is believed to be suing Curtis Hill to challenge his claim to resume the Office of Attorney General on the 18th of June. There will likely be an injunction of some kind in advance of that date.
The real point of this Article involves deputies from the moment on May 11, 2020 of service the SCOTSI Opinion though the end of the day on May 17, 2020. Though Curtis Hill was still the AG for that week he was ordered by the SCOTSI to “not undertake any new legal matters” within that time. That prohibition is common in non-emergency disciplinary suspensions and ought to mean the same in the case of Curtis Hill as it would in the case of a lawyer in private practice.
The “lag” time between disciplinary ruling and the effective date of suspension will vary. For instance, John P. Wilson was the respondent in the disciplinary case no. 18S-DI-365. By agreement he faced a term of suspension. The disciplinary ruling on March 23,2020 stayed the suspension until May 4, 2020, a “lag” time of six weeks for Wilson to wrap up as many pending legal matters as possible before serving the same suspension (30 days) as Curtis Hill. The apparent reason for such lag time is to avoid harm to the interests of clients.
Curtis Hill was prohibited from undertaking any new legal matters starting around 10:58 a.m. (Eastern) on May 11, 2020 through the end of the day on May 17th. But Hill had plenty of deputies . . . right? Weren’t they at liberty to file the new cases or enter appearances in defense of the State during that “lag-time” week? The position of the CLB is that the deputies or “DAG’s” were not authorized to do anything that their boss could not do during that week. In other words, the CLB theory is that a Deputy Attorney General has no official authority other than the authority duly held by the AG and delegated to the Deputy. The AG cannot delegate authority that he does not possess.
Looking back at the statutes one finds IC 4-6-1-4 allowing the AG to select and hire deputies. Then IC 4-6-5-2 pertaining to the representation of state agencies provides that a deputy of the AG will act “under the direction and control” of the AG.
For that “lag-time” week Curtis Hill (still AG at the time) had no authority to undertake anything new. Though he had deputies, there is no law granting them authority exceeding that of their boss.
What to look for? Let’s say a client walks in with a Complaint from a State agency. Signed by a DAG, and filed the week of May 11, 2020. You should challenge the Complaint for being unauthorized. Let’s say that you sued the State or a State Agency and a DAG files an appearance, ( a new matter) during the “lag-time” week. Feel free to object. Let’s say a DAG files a summary judgment motion in a case that is a year old. That would not be a new, prohibited matter.
ADDENDUM: I did some more checking. As of June 3, 2020 the pending suit of mention was brought by four Marion County residents (alleging public standing) naming Gov. Holcomb as a defendant (most likely a friendly one) along with Curtis Hill and Hill’s temporary replacement appointee. The cause number in the Marion Superior Court Civil Division 7 is 49D07-2005-PL-016774. The Complaint is styled as a Complaint for Declaratory Relief. The Complaint asserts that Curtis Hill’s suspension creates a vacancy in the Office of the AG to be filled by Gov. Holcomb and that Hill’s “purported” appointment of his temporary replacement was without authority and therefore void. The chaos continues.
Leave a Reply