INDIANAPOLIS – Under Indiana law, only the attorney general may determine and advocate the legal position of all of state government. And that exclusive authority exists for good reason – so that Indiana speaks in court with a single legal voice.
In creating the Office of the Attorney General, the General Assembly resolved precisely this sort of situation – where two parts of the state government disagree on a legal question. And as the Indiana Supreme Court recognized more than forty years ago, the Attorney General exists to resolve such disagreements and “to establish a general legal policy for State agencies.” State ex rel. Sendak v. Marion Cty. Superior Ct., 268 Ind. 3, 6–7, 373 N.E.2d 145, 148 (1978). In declining to authorize outside counsel to represent the Governor here, the Office of the Attorney General is not beset by a conflict of interest but is instead fulfilling its core purpose – setting a single, unified legal position for the State as a whole.
The Indiana Supreme Court has also held that no state agency or officeholder may file a declaratory judgment action. Allowing state agencies to resort to the judicial system for review of every statute passed would foster legislative irresponsibility and unnecessarily overburden the courts into issuing, essentially, advisory opinions.