INDIANA’S ATTORNEY TOO GENERAL: A CONSTITUTIONAL
AND POLICY ANALYSIS ON THE NEED

FOR STATUTORY REFORM

CHRISTOPHER T. RUPERT*

“‘[T]he executive power is more easily confined when it is one’; that it is far
more safe there should be a single object for the jealousy and watchfulness of the
people; and, in a word, that all multiplication of the Executive is rather
dangerous than friendly to liberty.”1

INTRODUCTION

In April 2021, Governor Eric Holcomb employed outside counsel to bring a
lawsuit against the Indiana General Assembly alleging a recently enacted bill was
an unconstitutional infringement on his expressly granted powers in the Indiana
Constitution.2 Attorney General Todd Rokita subsequently filed a motion to strike
Governor Holcomb’s private counsel in the suit on grounds that, pursuant to
Indiana statutes, the attorney general alone represents the State in matters
concerning the state and the attorney general must give consent before outside
counsel is employed.3 The trial court rejected the Attorney General’s procedural
argument regarding outside counsel and, nearly a year later, the Indiana Supreme
Court subsequently affirmed the ruling that the Governor could retain outside
counsel without the attorney general’s consent.4

This lawsuit is a recent example highlighting a constitutional dilemma
involving Indiana’s attorney general position and its overall authority within the
state government.5 This case is far from an anomaly; Indiana courts have long

* J.D. Candidate, 2023, Indiana University Robert H. McKinney School of Law; M.B.A.

2013, B.A. 2011, Baylor University – Waco, Texas. Thank you to Professor Joel Schumm for his

guidance throughout this topic, Professor Frank Sullivan, Jr. for his insight and inspiration, and to

my friends and colleagues on the Indiana Law Review for their thoughtful edits and support.

1. THE FEDERALIST NO. 70, at 430 (Alexander Hamilton) (Clinton Rossiter ed., 1961)

(quoting J.L. DE LOLME, THE CONSTITUTION OF ENGLAND 209 (Gilbert Stuart trans., 1800) (1784)).

2. Complaint for Declaratory Judgment and Injunctive Relief, Holcomb v. Bray, No. 49D12-

2104-PL-014068 (Marion Co. Super. Ct. Apr. 27, 2021).

3. Memorandum in Support of Motion to Strike and for Alternative Relief, Holcomb v. Bray,

No. 49D12-2104-PL-014068 (Marion Co. Super. Ct. Apr. 30, 2021).

4. Order Denying Motion to Strike and for Alternative Relief, Holcomb v. Bray, No. 49D12-

2104-PL-014068 (Marion Co. Super. Ct. July 3, 2021); Holcomb v. Bray, 187 N.E.3d 1268, 1288

(Ind. 2022).

5. See Marilyn Odendahl, Holcomb’s Lawsuit Draws Rebuke from Attorney General, IND.

LAW. (Apr. 27, 2021), https://www.theindianalawyer.com/articles/holcombs-lawsuit-draw-rebuke-

from-attorney-general [https://perma.cc/L66T-VUJ7]; Marilyn Odendahl, Lawyers Question

Rokita’s Actions in Lawsuit Filed by Governor, IND. LAW. (Apr. 29, 2021), https://www.

theindianalawyer.com/articles/lawyers-question-rokitas-actions-in-lawsuit-filed-by-governor

[https://perma.cc/6UPV-N8YK]; Marilyn Odendahl, Holcomb Claims Rokita Seeking to Expand

Power of Attorney General’s Office, IND. LAW. (May 18, 2021), https://www.theindianalawyer.



466 INDIANA LAW REVIEW [Vol. 56:465

wrestled with the scope of the attorney general’s authority and its implication on
the separation of powers outlined in Article III of the Indiana Constitution.6 The
attorney general is a statutorily elected position and is not found in the Indiana
Constitution.7

Though the Indiana Supreme Court’s decision clarified the question of
whether a governor may hire “outside counsel to protect the interests of the state
in a suit, particularly in one he has initiated,”8 the court left open the
constitutional separation-of-powers implication. That is, just how far the attorney
general’s overall authority with respect to governor involvement in state lawsuits
goes, particularly in cases dealing with state agencies or certain enforcement
actions. Under the rationale of allowing the governor to hire private counsel in
this instance, why should the Indiana Constitution tolerate a limitation to
governor action in other instances?

Currently, the Indiana statutes concerning the attorney general provide no
mechanism for oversight or control by the head of the executive branch.9 The
legislature has created an unimpeded ability to define and expand the scope of an
executive officer’s power with no accountability reserved for the chief executive.
This poses problematic implications on separation of powers as the attorney
general can essentially act as an independent position with limitless authority.

Based on the current statutes pertaining to executive officials, the executive
branch in Indiana appears loosely based on an “unbundled executive” structure,
or a “plural executive regime in which discrete authority is taken from the
[governor] and given exclusively to a directly elected executive official.”10 The
“unbundled” theory contrasts with the “unitary executive,” as found in the federal
executive branch.11 The “unitary” theory allows for a single official to wholly
preside over and control all aspects of the executive branch.12

As Alexander Hamilton discusses in The Federalist No. 70, the framers of the
United States Constitution expressly rejected a plural executive system.13 Rather,
a plural legislature was seen as ideal because it would lead to discussion that
reflects the people’s will; legislative factions were an inconvenient but necessary

com/articles/holcomb-claims-rokita-seeking-to-expand-power-of-attorney-generals-office

[https://perma.cc/2B62-VJ2G].

6. See IND. CONST. art. III, § 1; see discussion infra Section II.C.

7. IND. CODE § 4-6-1-2 (2022); see also State v. Rankin, 294 N.E.2d 604 (Ind. 1973).

8. Holcomb, 187 N.E.3d at 1289.

9. See discussion infra Section II.B.

10. Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV.

1385, 1386 (2008); see also infra Part IV.

11. Berry & Gersen, supra note 10, at 1385-86.

12. See Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK.

L. REV. 23 (1995); Richard J. Pierce Jr., Saving the Unitary Executive Theory from Those Who Would

Distort and Abuse It: A Review of the Unitary Executive by Steven G. Calabresi and Christopher S.

Yoo, 12 U. PA. J. CONST. L. 593 (2010).

13. See THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 1, at 425.



2023] INDIANA’S ATTORNEY TOO GENERAL 467

aspect of free government.14 But plurality in the executive would “lessen the
respectability, weaken the authority, and distract the plans and operations of those
whom they divide.”15 Unity in the executive was thought to be necessary for
energy of action and accountability of the chief officer.16

Many aspects of the “unitary executive” theory are applicable to this issue,
but this Note does not investigate the particular aspect of whether the attorney
general should be elected or appointed. Many states have elected attorneys
general while retaining express oversight power for the governor.17 While Indiana
certainly has a history of changing positions from elected to appointed (even with
regard to the attorney general position itself), this Note simply analyzes the
constitutional and policy arguments regarding statutory power and authority.18

Further, this Note does not advocate for a complete overhaul to a unitary system
based on The Federalist No. 70 or its aspects discussed infra in Part IV. The
discussion of the unitary system is meant to highlight why statutory reform in this
specific area will be effective and in accordance with the Indiana Constitution.

It should be noted that, above all else, the Indiana Constitution’s express view
of the executive branch is what informs how statutes can affect the department
and its officers. This Note argues that, because the Indiana Constitution gives full
power of the executive branch to the governor, the governor must have increased
input over representation of the state. While the state attorney general position
becomes more of a proactive entity, rather than simply the defender of the State,19

it is important to ensure the constitutional doctrine of separation of powers
remains intact and that unchecked power is not placed in the wrong hands. 

Part I discusses the Indiana Constitution’s construct of the executive branch,
its separation of powers doctrine, and several Indiana cases examining the
executive branch and implications on separation of powers between branches.
Part II examines Indiana’s attorney general position and notable Indiana court
interpretations of the position and its scope of power. Part III analyzes the
problems present as a result of the current attorney general structure. Part IV
discusses the unitary and unbundled executive models in more detail, arguments
for and against each, and implications on the chief executive versus lower-level
officers. Part V explores comparable state constitutional and statutory structures
for other state attorneys general, as well as various state court holdings, for the
purpose of identifying a possible solution. Finally, Part VI proposes a solution
that revolves around repealing the statute requiring attorney general consent for

14. Id. at 426-27.

15. Id. at 426.

16. Id. at 423-24, 427-28.

17. See infra Part V.

18. See Arika Herron, Indiana Has Its Last Elected Education Leader, as Holcomb Signs Bill

to Make It an Appointed Job, INDYSTAR (Mar. 19, 2019, 2:26 PM), https://www.indystar.com/story/

news/politics/2019/03/19/indiana-statehouse-jennifer-mccormick-last-elected-education-

leader/3213172002/ [https://perma.cc/EE5D-GZ6T]; see also infra Parts I-III.

19. See generally Jason Lynch, Federalism, Separation of Powers, and the Role of State

Attorneys General in Multistate Litigation, 101 COLUM. L. REV. 1998 (2001).



468 INDIANA LAW REVIEW [Vol. 56:465

outside counsel and replacing it with a provision that gives the governor
discretion to appoint outside counsel. Part VI also discusses counterarguments to
reform and reasons why they fall short.

I. INDIANA CONSTITUTION AND COURT INTERPRETATION

A. Relevant Constitutional Provisions

A state’s “constitution serves as a charter of law and government for the
state—the supreme law of the state—and prescribes in more or less detail the
structure and functions of state . . . government.”20 More specifically, the state
constitution’s role is “to protect the people . . . from governmental intrusions on
their freedoms” through its reflection of that same people’s “fundamental
values.”21

The Indiana Constitution outlines the three branches, or departments, of
government and expressly holds for the separation of powers doctrine.22 “The
powers of the Government are divided into three separate departments; the
Legislative, the Executive including the Administrative, and the Judicial: and no
person, charged with official duties under one of these departments, shall exercise
any of the functions of another, except as in this Constitution expressly
provided.”23

The Indiana Constitution specifically vests executive power to the governor
and the governor alone; this section could be considered a “vesting clause.”24

Further, the Indiana Constitution states the “Governor shall take care that the laws
are faithfully executed.”25 This section could likewise be considered as a “take
care clause.” Referring to the United States Constitution’s “vesting clause,”
Justice Antonin Scalia noted that the vesting of executive power in the President
“does not mean some of the executive power, but all of the executive power.”26

20. ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 3 (2009).

21. Loretta H. Rush & Marie Forney Miller, A Constellation of Constitutions: Discovering &

Embracing State Constitutions as Guardians of Civil Liberties, 82 ALB. L. REV. 1353, 1355 (2019);

Randall T. Shepard, The Maturing Nature of State Constitutional Jurisprudence, 30 VAL. U. L. REV.

421, 430 (1996).

22. IND. CONST. art. III, § 1.

23. Id.

24. Compare IND. CONST. art. V, § 1 (“The executive power of the State shall be vested in a

Governor.”), with U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President

of the United States of America . . . .”).

25. Compare IND. CONST. art. V, § 16 (“The Governor shall take care that the laws are

faithfully executed.”), with U.S. CONST. art. II, § 3 (“[The president] shall take Care that the Laws

be faithfully executed . . . .”).

26. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting).



2023] INDIANA’S ATTORNEY TOO GENERAL 469

B. Indiana Supreme Court Interpretation of Executive Branch Power,
The Governor’s Role, and Legislative Encroachment

Indiana courts have been clear and consistent on interpreting both of the
above sections and their practical implications. Tucker v. State is a seminal case
outlining the executive role and power in Indiana state government.27 The court’s
holding in this case outlines the general executive power vested in the governor
with regard to other statutorily elected positions.28 “The executive power is vested
not in the ‘Executive including the Administrative’ department, but in one man,
one officer, the Governor.”29 The court noted that if it were subsequently thought
that the Indiana Constitution had vested too much power in the governor through
this clause, the remedy would be to amend the Constitution.30

French v. State ex rel. Harley dealt with the executive and administrative
“subdivisions” in relation to the governor and provides a clear view of the court’s
approval for the governor’s involvement in the affairs of all aspects, executive
and administrative, of the executive branch.31

[T]hat the relation of the executive and the administrative subdivisions
are not to be so separated as to deny to the former all participancy in the
affairs of the latter. Not only is there no expressed inhibition against the
association of the governor with administrative state officers in the
discharge of any duty . . . but, in our opinion, such association is proper,
and within the spirit of the provisions of the constitution just referred
to.32

Separation of powers requires each branch be kept independent from the
other “in the sense that the acts of each shall never be controlled by, or subjected,
directly or indirectly, to, the coercive influence of either of the other
[branches].”33 Notwithstanding this notion, “[a]ny office . . . which had its duties
set out by statute, is not immune from further legislative enactments which might
increase or diminish the duties of that office.”34 Thus, if the act itself is
constitutionally permissible, the legislature is able to change the scope of the
duties of an office, like the attorney general, to grant or take away power of an
executive or administrative office so long as doing so does not allow the
legislature to either control or influence the executive branch. However, if the

27. Tucker v. State, 35 N.E.2d 270 (Ind. 1941).

28. Id.

29. Id. at 279.

30. Id. at 280.

31. French v. State ex rel. Harley, 41 N.E. 2 (Ind. 1895).

32. Id. at 7 (emphasis added).

33. Book v. State Off. Bldg. Comm’n, 149 N.E.2d 273, 294 (Ind. 1958) (ruling that part of the

legislative’s State Office Building Act violated separation of powers because of attempts to confer

executive-administrative duties upon legislators).

34. State v. Market, 302 N.E.2d 528, 533-34 (Ind. Ct. App. 1973) (citing State ex rel. Hench

v. Morrison, 64 Ind. 141 (1878)).



470 INDIANA LAW REVIEW [Vol. 56:465

legislature attempts to expressly define an administrative officer’s role within the
executive, pertaining specifically to carrying out executive functions in place or
with respect to the governor, that action will run afoul of the Indiana Supreme
Court’s holding in Book v. State Office Building Commission.35

“[T]here is significant authority in other states emphatically rejecting
legislative attempts to dilute the powers of constitutional officers by statutorily
assigning the officers’ core constitutional duties to another individual or entity.”36

An interesting parallel to the Indiana legislature defining the scope of the attorney
general’s power in relation to the governor is found in a Virginia Supreme Court
case that dealt with a similar application to separation of powers.37 That court
recognized that the “legislature does not have the power to take duties away from
the constitutional office of Attorney General and give them to one whose office
is created by mere statute.”38 That rationale reaches the same conclusion
regarding the constitutional office of governor and statutory office of attorney
general.39

The implications of these particular Indiana Supreme Court holdings are
unambiguous: the governor’s vested executive power cannot be encroached on
by either of the other branches of government or another executive or
administrative officer. Conversely, the governor himself has the right to be
involved in all aspects of the executive branch.

C. The Indiana Constitution with Respect to the Federal Constitution

Two important distinctions for interpreting the Indiana Constitution with
regard to the executive branch and separation of powers involve interpreting state
constitutional provisions relative to their similar federal provisions and
considering the limiting purpose of the state constitution.

The Indiana Constitution, like other state constitutions, shares similar
language to the United States Constitution despite stark differences.40 “The state
constitutions are constrained by, and constitute integral parts of, the federal
Constitution.”41 This does not mean that a state’s constitution cannot be

35. Book, 149 N.E.2d at 293.

36. Patrick C. McGinley, Separation of Powers, State Constitutions, & the Attorney General:

Who Represents the State?, 99 W. VA. L. REV. 721, 763 (1997).

37. See id. at 759; Blair v. Marye, 80 Va. 485 (1895).

38. Id. (citing Blair, 80 Va. at 491).

39. See State ex rel. McGraw v. Burton, 569 S.E.2d 99, 110 (W. Va. 2002) (“[T]he Legislature

cannot create offices that will conflict with or curtail the constitutional powers of the offices provided

for by the Constitution; and to transfer the inherent functions of a constitutional office to another

office is to curtail the former. Therefore, a legislative act that attempts to accomplish such a transfer

is unconstitutional.”).

40. WILLIAMS, supra note 20, at 3, 18. 

41. Id. at 18; see also Rush & Miller, supra note 21, at 1354 (“[T]he ultimate goal is for state

constitutional law to better facilitate the beneficence of federalism while enhancing the development

of constitutional law throughout the United States.”).



2023] INDIANA’S ATTORNEY TOO GENERAL 471

“independently decisive” nor does it mean the “state constitution will always
produce a result different from the federal constitution—only that the result will
derive from a different source of sovereign authority.”42 While certain provisions
of a state constitution may be distinct or similar to other constitutions, a
comparison of these provisions can “shed additional light on the meaning of the
charters’ provisions” and “if a provision closely resembles those of other
constitutions, that resemblance may indicate kinship with them.”43 

The states are left to ultimately determine how they will use the broad power
given to them from the United States Constitution’s Tenth Amendment.4 4 A state
constitution “provides limitations on the otherwise plenary, residual, sovereign
power of states to make law and govern themselves. . . . By contrast, the federal
Constitution is a grant of enumerated powers upon which all exercises of federal
power must be based.”45

From this important distinction—that a state’s constitution operates as a
limitation of the state’s plenary power—it reasonably follows that these
limitations do not extend past any implied, unstated limitations as “the purpose
of such provision[s] is to define the limitations” themselves.4 6 Thus, there is no
implication that the “vesting” and “take care” clauses under the Indiana
Constitution’s executive branch article are subject to any implied limitations
(particularly any limitations of those powers imposed by the legislature or another
executive officer). Certainly, a simple “plain meaning” interpretation should
prevail; when “decid[ing] between two interpretations of a constitutional
provision, we must favor a natural reading which avoids contradictions and
difficulties in implementation, which completely conforms to the intent of the
framers and which reflects the views of the ratifying voter.”4 7 Considering the
attorney general position was never included in the Indiana Constitution, the
executive provisions discussed supra cannot be interpreted with the position’s
inclusion.

A separation of powers clause is not expressly mentioned in the United States
Constitution, but the Supreme Court has nonetheless spoken to the clear and
practical need for separation of powers between branches. “The fundamental
necessity of maintaining each of the . . . departments . . . entirely free from the
control or coercive influence, direct or indirect, of either of the others, has often
been stressed and is hardly open to serious question.”48 

42. Rush & Miller, supra note 21, at 1358.

43. Id. at 1361; see also infra Part V.

44. See U.S. CONST. amend. X.

45. WILLIAMS, supra note 20, at 3.

46. Id. at 332 (quoting Idaho Press Club, Inc. v. State Legislature, 132 P.3d 397, 399-400

(Idaho 2006)). “Had [the framers] wanted to impose limitations in addition to those stated, they could

easily have done so. Therefore, the rule of construction expressio unius est exclusio alterius applies

to provisions of the [constitution] that expressly limit power, . . . but it does not apply to provisions

that merely enumerate powers.” Idaho Press Club, Inc., 132 P.3d at 399-400 (citations omitted).

47. WILLIAMS, supra note 20, at 324.

48. Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935).



472 INDIANA LAW REVIEW [Vol. 56:465

The inherent political nature of state constitutions causes them to be “much
more reflective of current local values than the federal charter and much more
responsive to changes in those values.”49 As explained supra in Tucker, the State
should amend the constitution if there is a provision contrary to the current values
of the state’s constituents.50

II. HISTORY AND CURRENT STRUCTURE OF THE OFFICE OF ATTORNEY
GENERAL IN INDIANA

A. History of Indiana’s Attorney General Position

The first attorney general statute in Indiana was created in 1855.51 While
some states have the attorney general position explicitly written in their
constitutions, Indiana’s has always been only a statutory position having not been
included as one of the constitutional officers.52

In 1933, Indiana Governor Paul McNutt presented a plan called the Executive
Reorganization Act of 1933 which received bipartisan support for enactment and
gave the governor expansive power as head of the executive department.53 At the
time, the attorney general was within the executive department, but the new act
made it an appointive position to be filled by the governor rather than elected by
popular vote as under the previous statute.54

In 1941, the political environment shifted, and the legislature repealed the
Executive Reorganization Act on partisan grounds, thus eliminating this
appointing power.55 

In his first message to the Republican-dominated legislature, [Democrat

49. Shepard, supra note 21, at 442 (quoting Robert F. Utter, Freedom and Diversity in a

Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, in

DEVELOPMENTS IN STATE CONSTITUTIONAL LAW 239, 242 (Bradley D. McGraw ed., 1985)).

50. Tucker v. State, 35 N.E.2d 270, 280 (Ind. 1941); see also Shepard, supra note 21, at 442

(stating “states have certainly responded to the changing society by amending their constitutions far

more regularly than the federal government”).

51. Hord v. State, 79 N.E. 916, 920 (Ind. 1907) (citing 1855 Ind. Acts 16., c. 3, § 5656, Rev.

St. 1881).

52. See infra Part V; State v. Rankin, 294 N.E.2d 604 (Ind. 1973); Emily Myers, Origin and

Development of the Office, in STATE ATTORNEYS GENERAL POWERS AND RESPONSIBILITIES 7 (Emily

Myers & Lynne Ross eds., 2nd ed. 2007) (noting thirty-four of the fifty states created or otherwise

provided for an attorney general in their first state constitution); Emily Myers, Status in State

Government, in STATE ATTORNEYS GENERAL POWERS AND RESPONSIBILITIES 38 (Emily Myers &

Lynne Ross eds., 2nd ed. 2007) (noting forty-four of the fifty states now have constitutional

provisions).

53. JAMES H. MADISON, INDIANA THROUGH TRADITION AND CHANGE 1920-1945, at 91 (1982).

54. Id. (citing Robert R. Neff, The Early Career and Governorship of Paul V. McNutt 231-32

(1963) (Ph.D. dissertation, Indiana University) (located at Auxiliary Library Facility, Indiana

University, Bloomington)).

55. Id. at 398-99. 



2023] INDIANA’S ATTORNEY TOO GENERAL 473

Governor] Schricker . . . promised that he did “not crave dictatorial
power.” In direct repudiation of his Democratic predecessors, he called
for repeal of McNutt’s [act]—arguing that the measure gave too much
power to the governor. . . . In one of the most thoroughly partisan
ventures in Indiana history, [the legislature] set about to dismantle the
gubernatorial power McNutt had created and to reduce Schricker to a
figurehead. The Republican majority passed some two dozen bills that
were chiefly designed to deprive Schricker of his power to make
executive appointments to departments and agencies of state
government.56

The legislature abolished the old office and then re-established the new Office of
Attorney General as an elected position.57 This history indicates the inherent
political nature of executive officer positions, particularly the attorney general,
and how there has long been a power struggle dealing with their respective
powers.

B. Current Statutory Structure

Following the 1941 change that effectively made the position what it is today,
courts have ruled using the statutory language set forth by the legislature.58 Aptly
noted in Rankin, as the attorney general is absent from the Constitution, its scope
of authority is wholly derived by statute and not by common law.59 “[T]he Office
of Attorney General was created by statute and is not a constitutional office . . .
[and] can therefore only derive authority via statute.”60

Indiana Code article 4-6 assigns various responsibilities to the attorney
general; Indiana Code section 4-6-1-2 creates the Office of Attorney General and
requires the position to be elected to a four-year term while Indiana Code chapter
4-6-2 encompasses “Powers and Duties” of the office.61 Specifically, in the first
section of the “Powers and Duties” chapter, titled “Prosecuting and defending
suits by or against state and state officers,” “[t]he attorney general shall prosecute
and defend all suits instituted by or against the state of Indiana,” “represent the
state in all criminal cases in the Supreme Court,” “defend all suits brought against
the state officers in their official relations, except suits brought against them by
the state,” and “attend to the interests of the state in all suits, actions, or claims in
which the state is or may become interested in the Supreme Court of this state.”62

The statute further provides that the attorney general shall prosecute or

56. Id. at 398.

57. 1941 Ind. Acts 291, ch. 108, § 3; 1941 Ind. Acts 292, ch. 109, § 4; see also Tucker v. State,

35 N.E.2d 270, 277 (Ind. 1941).

58. See State v. Rankin, 294 N.E.2d 604 (Ind. 1973); Indiana State Toll-Bridge Comm’n v.

Minor, 139 N.E.2d 445 (Ind. 1957); State ex rel. Young v. Niblack, 99 N.E.2d 839 (Ind. 1951).

59. Rankin, 294 N.E.2d at 605.

60. Id.

61. IND. CODE ch. 4-6-2 (2022).

62. Id. § 4-6-2-1.



474 INDIANA LAW REVIEW [Vol. 56:465

defend a suit “whenever the governor or a majority of the officers of state require
the attorney general in writing, with reasonable notice, to prosecute or defend a
suit.”63 However, there is no consideration of when there might be a conflict of
interest for the attorney general or a judgment by the governor that the attorney
general’s office is not able to adequately represent the state in a particular
matter.64 Further, this provision provides no guidance or requirement to the
attorney general on how he is to proceed in this action; requiring the attorney
general to simply bring or defend a certain suit is not sufficient oversight of the
officer’s scope of responsibility as there is nothing governing the process once the
written and timely request is made.65

The broad, and most overarching, statutory authority is found in the provision
that “[the attorney general] shall represent the state in any matter involving the
rights or interests of the state, including actions in the name of the state, for which
provision is not otherwise made by law.”66

The statutory provision bolstering the attorney general’s general duty to
represent the state states “[n]o agency . . . shall have any right to . . . hire any
attorney . . . to represent it or perform any legal service in behalf of the agency
or state without the written consent of the attorney general.”67 While never
confronting its constitutionality, the Indiana Supreme Court has affirmed this
statute as applied to certain facts, particularly in Sendak.68

Although the legislature saw the apparent need to impose upon the executive
branch the obligation to obtain the attorney general’s consent before hiring
outside counsel, they nonetheless exempted the legislative branch from a similar
obligation.69 The argument that the consent provision is due to the attorney
general’s statutory responsibility to represent the state in all suits is inconsistent
with the legislature’s own exemption from this provision.

C. Indiana Supreme Court Interpretations of the Attorney General’s
Statutory Power

Sendak is an example providing a clear application of the consent statute as
well as an important policy consideration with which to view it.70 In Sendak, a
complaint was filed against the Alcoholic Beverage Commission for which the
governor requested an outside attorney to represent the agency.71 The attorney
general also entered an appearance to represent the agency and subsequently filed

63. Id.

64. See infra Part V; see also supra INTRODUCTION.

65. See infra Part III.

66. IND. CODE § 4-6-1-6.

67. Id. § 4-6-5-3. This Note refers to this statute as the “Consent Statute.”

68. See State ex rel. Sendak v. Marion County Superior Court, Room No. 2, 373 N.E.2d 145

(Ind. 1978).

69. IND. CODE §§ 2-3-8-1; 2-3-9-2, -3; see also infra Part VI.

70. Sendak, 373 N.E.2d 145.

71. Id. at 147.



2023] INDIANA’S ATTORNEY TOO GENERAL 475

a motion to strike the outside attorney’s appearance.72 The argument supporting
the motion to strike was that, by statute, the agency must first obtain consent from
the attorney general before hiring another attorney for representation, and it had
not done so in this case.73 To the extent a statute giving the governor “power to
employ counsel in litigation” and the consent statute are in “irreconcilable
conflict,” the statute with the latter enactment will hold.74 

The Indiana Supreme Court recognized, per the consent statute, that an
agency must first obtain consent from the attorney general before hiring another
attorney for representation.75 This interpretation in favor of the attorney general
limited the governor from acting as he did in this case.76 

The Sendak opinion closes by recognizing there could be a different outcome
if an attorney general were engaged in policymaking or otherwise infringing on
the “execution of executive power.”77

We recognize that the executive power of the government is vested not
in the various departments and agencies, but in the Governor alone. . . .
However we see no relationship between the execution of executive
power and the legal defense of a lawsuit . . . the Attorney General is not
dictating policy or directing the State, but is merely defending the State.78

It is through this last thought from Sendak that the attorney general’s duties
and responsibilities, generally, can be bounded to determine their current
compatibility or incompatibility with the separation of powers and executive
authority provisions in the Indiana Constitution.79

In addition to the policymaking limitation expressed in Sendak, French also
discusses the role that administrative officers should play regarding deference to
the governor. “[S]uch officers should have the power to perform such duties as
should be required of them by law . . . where such requirement in no wise
conflicted with the powers delegated to the governor alone.”80

No other official is delegated both executive power and the power to ensure

72. Id.

73. Id. at 148.

74. Id. at 148-49 (noting the statute giving the Governor such power was “inconsistent with the

Attorney General’s duties as prescribed by law”).

75. Id.

76. As there was no constitutional challenge in this case, it should be emphasized the court did

not squarely address the constitutionality of the consent statute but merely interpreted its application.

See also Holcomb v. Bray, 187 N.E.3d 1268, 1288 (Ind. 2022) (noting the court’s decision in Sendak

was limited to whether “the Governor could hire private counsel on behalf of a state agency without

the Attorney General’s consent.”).

77. Sendak, 373 N.E.2d at 149.

78. Id. (citing Tucker v. State, 35 N.E.2d 270 (Ind. 1941)).

79. See IND. CONST. art. III, § 1; id. art. V, §§ 1, 16.

80. French v. State ex rel. Harley, 41 N.E. 2, 6 (Ind. 1895); see also State ex rel. Young v.

Niblack, 99 N.E.2d 839, 842 (Ind. 1951) (recognizing the attorney general’s office is one of

“delegated powers” by statute).



476 INDIANA LAW REVIEW [Vol. 56:465

faithful execution of the laws; the governor retains both powers alone. It is
apparent that the attorney general is performing a duty “belonging to the
governor”81 by being the gatekeeper in deciding which cases are ultimately
brought on behalf of the executive branch or, more specifically, when the
governor may employ outside counsel in an attempt to ensure faithful execution
of the laws, even with regard to counsel for an executive agency.

III. POLICY ISSUES ARISING FROM THE CURRENT STRUCTURE

Many problems stem from an attorney general’s aims for higher office. If an
attorney general aspires for higher office, namely the office of governor, their
actions—right or wrong—as attorney general will likely influence both their
political future as well as the current governor’s.82 With full independence and the
ability to directly affect the perceived success of the current administration, the
possibility and temptation to choose that route is facilitated by the current
statutory landscape.

[I]f the attorney general’s actions cause poor performance . . . or
interference with implementation of the governor’s policy objectives, the
governor may nonetheless by held politically accountable as the leading
political figure in the executive branch. “The fact is that people look to
the governor to get the job done.”83

Before becoming President, Woodrow Wilson wrote, “[t]here is no danger
in power if only it be not irresponsible. If it be divided, dealt out in shares to
many, it is obscured and if it be obscured, it is made irresponsible.”84 This quote
can be easily applied to the concept that the public votes for elected officials but
does not always have sufficient knowledge regarding down ballot candidates.
“Public knowledge of the performance or even the identities of subgubernatorial
statewide elected officials is ‘shockingly low.’”85 The implications of this nature
of state-wide elections means that certain officials’ actions will not always
translate to negative political consequences for that relatively unknown position
relative to a higher-profile candidate.86

Elected attorneys general, by their nature, pay more attention to their political
base’s preferences and needs than the “institutional or political interests of other

81. French, 41 N.E. at 6.

82. Neal Devins & Saikrishna Bangalore Prakash, Fifty States, Fifty Attorneys General, and

Fifty Approaches to the Duty To Defend, 124 YALE L.J. 2100, 2144-53 (2015).

83. Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U.

FLA. J.L. & PUB. POL’Y 1, 16 (1993) (quoting former Governor Reubin Askew of Florida).

84. Id. at 18 (quoting Woodrow Wilson, The Study of Administration, 56 POL. SCI. QTRLY. 497-

98 (1941) (reprinting 1887 article from volume 2 of same quarterly)).

85. Id. (quoting LARRY J. SABATO, GOOD-BYE TO GOOD-TIME CHARLIE 64 (2d ed. 1983)).

86. Id. at 18 (noting respondents to a 1990 survey who were asked to identify Virginia officials,

seventy-six percent could name the governor while only thirty-seven percent were able to name the

attorney general).



2023] INDIANA’S ATTORNEY TOO GENERAL 477

parts of the executive branch, including the governor.”87 Relating to their ability
to choose what suits to bring on behalf of the state, attorneys general are
conscious of expanding their base of support through the publicity of the legal
challenges with which they choose to engage.88 One example of such publicity
includes the filing of amicus briefs to the United States Supreme Court.89 A
dilemma exists on what authority the attorney general is acting on when
presenting Indiana’s stance on a given issue when Indiana is not a named party
in the matter.90 The question becomes, should the governor be able to have any
input in such official state action?

Thirty-seven percent of elected attorneys general seek higher office and
twenty-six percent end up running for governor.91 On average, during typical
four-year election cycles, over eleven attorneys general run for governor of their
state.92

There are differences of opinion on how much discretion the attorney general
should have in the duty to defend the constitutionality of a statute as well as in the
duty to enforce a statute.93 Since 2008, attorneys general have increasingly
refused to defend laws that do not align with their political base.94 This inevitably
results in attorneys general consciously choosing not to bring certain cases that
they might otherwise be able to bring.

In some applications, the attorney general is the sole entity that can bring a
case to court.95 By choosing to bring or not bring certain cases, this effect could
be a way of propping himself up for future political aspirations or attempting to
hinder the governor’s success. In other cases, the attorney general may not be the
sole entity able to bring the case, but their involvement in favor or against one
position could have the same effect.96 

87. Devins & Prakash, supra note 82, at 2143.

88. Id. at 2145.

89. See Greg Zoeller, Indiana Has Important Interest in Court Case on Prayer, INDYSTAR

(Aug. 9, 2013, 3:17 P.M.), https://www.indystar.com/story/opinion/readers/1/01/01/indiana-has-

important-interest-in-court-case-on-prayer/2636409/ [https://perma.cc/47X4-RMEY]; Margaret H.

Lemos & Kevin M. Quinn, Litigating State Interests: Attorneys General as Amici, 90 N.Y.U. L. REV.

1229 (2015).

90. Zoeller, supra note 89 (“As Indiana’s attorney general, I serve as lawyer for state

government and argue on the side of state authority and in defense of state officials’ actions.”).

91. Devins & Prakash, supra note 82, at 2144 (noting elected attorneys general are twice as

likely to seek higher office as compared to appointed attorneys general).

92. Id.

93. See Gregory F. Zoeller, Duty to Defend and the Rule of Law, 90 IND. L.J. 513, 519, 524-29

(2015) (differentiating the duty to defend and the duty to enforce).

94. Devins & Prakash, supra note 82, at 2138.

95. See IND. CODE § 24-5-0.5-4(c) (2022) (carving out enforcement of certain provisions of

the Indiana Deceptive Consumer Sales Act pertaining to debt collection for only the attorney

general).

96. See id. § 5-11-5.5-3 (granting attorney general jurisdiction to investigate and bring civil

actions for violations of Indiana Code section 5-11-5.5-2 concerning persons making false claims or



478 INDIANA LAW REVIEW [Vol. 56:465

This discretion in choosing whether or not to prosecute particular cases,
vested solely in the attorney general, is a precise example of the policymaking the
Indiana Supreme Court, in Sendak, indicated would not stand.97 Attorneys general
have “wide-ranging policymaking discretion stemming from their ability to sue
on behalf of the state.”98 Consequently, because of the ability to “sue state
instrumentalities and . . . private parties, [they] increasingly function as an
omnicompetent regulatory agency.”99 This implication clearly goes against what
the Sendak court recognized would require different consideration.100

IV. THE UNITARY VS. UNBUNDLED EXECUTIVE

A. Unitary Executive

The issue of defining the attorney general’s authority within the executive
branch invariably rests on the debate between the unitary and unbundled
executive models.

The unitary executive, in its clearest sense, is the structure found in the
federal executive branch.101 Under a strictly unitary system, there is no emphasis
placed on giving officers independence. A strict unitary model also will involve
all ultimate power and authority going to the head executive that oversees the
entire branch and appoints each position within it.102

Arguments in favor of the unitary theory point to energy of action,
accountability, and separation of powers.103 Energy refers to a steady
administration of laws and protecting its citizens in an active and nimble way.104

Unity helps avoid “‘the most bitter dissentions’ which ‘lessen the respectability,
weaken the authority, and distract the plans and operations of those whom they
divide.’”105

As indicated in The Federalist No. 70, the framers consciously “swept the
hereditary and plural executive forms into the ash bin of history” and the system
has increasingly been adopted by many other countries in the world.106 In
confirming the unitary system, there was no concern for one person wielding such
power because that individual would be elected and accountable to the public.

attempting to defraud the state).

97. See discussion supra Section II.C.

98. Devins & Prakash, supra note 82, at 2145.

99. Id.

100. See supra text accompanying notes 77-79.

101. Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled

Executive, 93 MINN. L. REV. 1696 (2009); Calabresi, supra note 12, at 25-26.

102. Note, Appointing State Attorneys General: Evaluating the Unbundled State Executive, 127

HARV. L. REV. 973 (2014).

103. Calabresi, supra note 12, at 37.

104. Id. at 37-42.

105. Id. at 41.

106. Id. at 25-26.



2023] INDIANA’S ATTORNEY TOO GENERAL 479

“[T]he whole Nation has a part, making him the focus of public hopes and
expectations.”107

B. Unbundled Executive

The unbundled executive distributes power to the officials which comprise
the executive department membership and typically involve each official
operating independently from the others; they do not answer to the chief
executive, nor are they appointed by it.108 Proponents of the unbundled executive
contend that the “unbundled executive outperforms the single unitary executive”
due to it resulting in outcomes closer to the general will of the people and
enhancing accountability of officers.109 However, the issues discussed supra in
Part III strongly relate to the issues of the unbundled system. 

This assumption of achieving outcomes closer to the will of the public
presupposes that a particular official can determine that will in the first place and
then achieve it through action. “There is no reason to assume that the attorney
general can ascertain the public interest better than the governor . . . .”110 It also
presupposes the general public will be aware of the official’s actions. The
governor attracts more interest and people are typically more knowledgeable
about the governor and his policies than the attorney general’s.111

The California Supreme Court solidified to resolve this conflict when it
provided a state constitutional interpretation that “over the faithful execution of
the laws of this state, the Governor retains the ‘supreme executive power’ to
determine the public interest.”112

Unbundled executives are meant to “check gubernatorial power and diffuse
executive authority among elected state house” officers.113 One major counter to
executive officers providing a check on the chief executive is that the Indiana
Constitution already provides a check on the chief executive in the form of article
III, section 1 and whereby the other branches can check any overreaches of
executive power.114 

An independent attorney general, with no allegiance or accountability to the
governor, purportedly serves as a check, or “watchdog,” on the executive to curb
unlawful conduct.115 This accepts that the attorney general himself is immune to
such conduct that he does not need a similar type of “watchdog.”116

107. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J.,

concurring).

108. See Berry & Gersen, supra note 10, at 1387.

109. Id.

110. Matheson, supra note 83, at 15.

111. Id.

112. Id. (quoting People ex rel. Deukmejian v. Brown, 624 P.2d 1206, 1209 (Cal. 1981)).

113. McGinley, supra note 36, at 724.

114. Matheson, supra note 83, at 11.

115. Id. at 10-11.

116. Id. at 11.



480 INDIANA LAW REVIEW [Vol. 56:465

Hamilton noted in The Federalist No. 70 that executive plurality creates an
accountability problem as it “tends to conceal faults and destroy responsibility.
. . . It often becomes impossible, amidst mutual accusations, to determine on
whom the blame or the punishment of a pernicious measure, or series of
pernicious measures, ought really to fall.”117

Many proponents of the unbundled executive, however, “agree that the
President enjoys such control over subordinate personnel who assist the President
in performing specific constitutionally enumerated tasks.”118 This supports the
notion that, even in an unbundled executive system, any attorney general’s action
performed in supporting an express constitutional grant of the governor’s power
should be met with governor control and where such control should cease when
the “subordinate personnel” act is not related to such express constitutional
grant.119

Some express a view that Indiana’s government, as well as most state
governments, is structured under that of a clear plural (unbundled) executive.120

However, it is difficult to support this notion with any express constitutional
application.121

V. STATE JURISDICTIONAL ANALYSIS

States vary on how their attorney general positions are structured. Forty-three
states have an elected attorney general, five are governor-appointed, one is
legislature-appointed, and one is supreme-court-appointed.122 This Part explores
the similar structures in Georgia, Wisconsin, Oklahoma, Virginia, and Montana,
while Texas provides a contrasting example.

A. Georgia

The Georgia attorney general is a constitutional officer.123 Through statute,
Georgia expressly limits the attorney general’s power by giving the governor “the
power to direct the Department of Law, through the Attorney General as head
thereof, to institute and prosecute in the name of the state such matters” deemed
to be in the state’s best interest.124 One notable section allows the governor “at
any time” to direct the attorney general on conducting investigations and filing

117. Id. at 17 (citing THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 1, at 427-28);

see also supra Part III.

118. Peter M. Shane, The Originalist Myth of the Unitary Executive, 19 U. PA. J. CONST. L. 323,

324 (2016).

119. Id.

120. See, e.g., WILLIAMS, supra note 20, at 303.

121. See supra Part I.

122. Attorney General Office Comparison, BALLOTPEDIA, https://ballotpedia.org/Attorney_

General_office_comparison [https://perma.cc/7X55-287A] (last visited Oct. 22, 2021).

123. GA. CONST. art. V, § 3.

124. GA. CODE ANN. § 45-15-35 (2022); see also GA. CONST. art. V, § 3, ¶ IV.



2023] INDIANA’S ATTORNEY TOO GENERAL 481

and prosecuting actions.125 However, “[i]n the event the Attorney General refuses
to take or file such action within a reasonable time after having been directed by
the Governor to do so, the Governor is authorized to appoint a special attorney
general . . . .”126

Georgia Supreme Court case Perdue v. Baker provides an important
distinction with which to view a governor’s acts with respect to an attorney
general.

[T]he executive branch generally has the power and authority to control
litigation as part of its power to execute the laws, and a law that removes
from the executive branch sufficient control of litigation may well violate
separation of powers. However, the executive branch does not have the
authority to decline to execute a law under the guise of executing the
laws . . . . Thus, even though the executive branch generally has the
power and authority to control litigation, it cannot exercise this power in
order to prevent the execution of a law.127

This ensures a level of independence for the attorney general and discretion
to bring certain prosecutions or defend the state against certain actions; the
governor will not, and should not, have power to stop such litigation, only the
power to oversee its execution.

B. Wisconsin

The Wisconsin attorney general is a constitutional officer, and the state’s
Constitution holds “[t]he powers, duties and compensation of the . .
. attorney general shall be prescribed by law.”128 Wisconsin courts have ruled the
attorney general does not have “inherent power to initiate and prosecute litigation
intended to protect or promote the interests of the state.”129 In Oak Creek, the
Wisconsin Supreme Court recognized the constitutional provision granting only
such powers as prescribed by law meant there is no common law authority.130

“[T]he powers of the attorney general are strictly limited” to what is found by
statute.131

C. Oklahoma

Oklahoma recognizes its attorney general as the “chief law officer of the
state” and the state’s Constitution includes the position as an officer vested with
“executive authority” (although providing no detail on the nature of that

125. GA. CODE ANN. § 45-15-18.

126. Id.

127. Perdue v. Baker, 586 S.E.2d 606, 615-16 (Ga. 2003).

128. WIS. CONST. art. VI, § 3.

129. State v. City of Oak Creek, 605 N.W.2d 526, 533, 540 (Wis. 2000) (quoting In re Est. of

Sharp, 217 N.W.2d 258, 262 (1974)).

130. City of Oak Creek, 605 N.W.2d at 532-33.

131. Id. at 532 (quoting State v. Milwaukee Elec. Ry. & Light Co., 116 N.W. 900 (1908)).



482 INDIANA LAW REVIEW [Vol. 56:465

authority), while the governor is vested with “[t]he Supreme Executive power.”132

As such, the governor is given express permission, through a statute enacted in
1910, to “employ counsel to protect the rights or interest of the state.”133 Thus, the
governor could appoint a special counsel in the event the governor saw fit, such
as “[i]f personal disqualification prevent[ed] the attorney general from fulfilling
the duties of his office . . . .”134 There is nothing limiting the governor’s discretion
in this area.

D. Virginia

Virginia expressly mentions the attorney general in its Constitution while also
vesting executive power in the governor.135 Virginia also has a statutory provision
allowing the governor, for himself or any other state entity under certain
circumstances, to employ special counsel “[w]hen the Governor determines that,
because of the nature of the legal service to be performed, the Attorney General’s
office is unable to render such service . . . .”136 As noted in Wilder v. Attorney
General of Virginia, the presence of an enacted statute granting the power to
appoint special counsel is both constitutional and applicable in allowing the
governor to appoint counsel at “the Governor’s judgment.”137

E. Montana

Montana is an example of broad construction providing executive discretion
to employ outside counsel; it has recognized this ability for both the governor as
well as other governing bodies.138 Like Oklahoma, Montana’s attorney general is
a member of the “executive department” under its Constitution but does not have
its specific duties defined; and, the governor is likewise recognized with
“supreme executive power.”139 The Supreme Court of Montana in Woodahl
explained their rationale in finding of broad governor authority when it
recognized “the governor with his constitutional supreme executive powers, his
statutory powers . . . and the lack of constitutionally enumerated duties of the
attorney general, has the power to either direct the attorney or may himself
employ additional counsel.”140 This reasoning also presents an interesting
perspective with which to compare Indiana’s constitutional and statutory
provisions and view Indiana’s governor and attorney general.

132. OKLA. STAT. tit. 74, § 18 (2022); OKLA. CONST. art. VI, §§ 1-2.

133. OKLA. STAT. tit. 74, § 6 (section titled “May employ counsel for state”).

134. Teleco, Inc. v. Corp. Comm’n of Okla., 649 P.2d 772, 775 (Okla. 1982).

135. VA. CONST. art. V, §§ 1, 15.

136. VA. CODE ANN. § 2.2-510 (2022).

137. 439 S.E.2d 398, 401-02 (Va. 1994).

138. MONT. CODE ANN. § 2-15-201(4) (West 2022); see also Woodahl v. State Highway

Comm’n, 465 P.2d 818 (Mont. 1970).

139. MONT. CONST. art. VI, §§ 1, 4; see also Woodahl, 465 P.2d at 819-20 (quoting MONT.

CONST. art. VII, § 5, repealed by MONT. CONST. art. VI, § 4).

140. Woodahl, 465 P.2d at 820-21.



2023] INDIANA’S ATTORNEY TOO GENERAL 483

F. Texas

Conversely, Texas is a state where the plural executive is particularly
endorsed and outlined in the state’s Constitution.141 Not only is the attorney
general listed in the Constitution as a member of the executive, but it also has a
dedicated section outlining the attorney general’s general duties and powers.142

The Texas Court of Appeals has recognized the plural nature of Texas’s executive
branch.143 “Texas is the classic example of a plural executive setup, where
executive power is not vested in a single person but is divided among six
separately elected officials . . . . This structural arrangement was not an accident,
but rather a deliberate attempt to decentralize government power . . . .”144

Predictably, there is no statutory provision granting the governor any power to
employ outside counsel in place of the attorney general.

It should be emphasized that certain states allowing for the governor to
appoint special counsels have provisions in the attorney general statutes noting
it is the duty of the attorney general to act when directed by the governor, at the
governor’s request, or from the governor’s direct power to direct the office.145 Of
course, Indiana has a similar provision in the attorney general statute for the
attorney general to act whenever the governor puts forth a request in writing.146

As discussed in this Part, there are many states with attorneys general as
constitutional officers, and with statutory status as the state's “chief legal officer,”
like Indiana’s, that allow outside counsel to be appointed without the attorney
general’s consent. The presence of this multitude of states allowing for some
process of governor involvement is this area provides clear examples of how such
statutory schemes could work in Indiana.

VI. RECOMMENDATIONS FOR REFORM

Allowing the governor to appoint the attorney general is the most direct way
to arrive at providing the governor supreme executive authority in this area.
However, it is clear among the vast majority of states that this is not the desired
method for picking this position.14 7 Absent appointment power, statutory
parameters must be clarified to fully comply with the Indiana Constitution,
reverse the negative policy implications of the current structure, and keep
unnecessary governmental disputes out of the courts.

The ultimate goal in reform is to move away from the attorney general
asserting his or “her vision of the ‘state’s legal interests.”148 The state models

141. TEX. CONST. art. IV, § 1.

142. TEX. CONST. art. IV, § 22.

143. State v. El Paso Cnty., 618 S.W.3d 812, 830 (Tex. App. 2020).

144. Id.

145. See OKLA. STAT. tit. 51, § 94 (2022); GA. CODE ANN. § 45-15-35 (2022).

146. IND. CODE § 4-6-2-1 (2022); see also discussion supra Section II.B.

147. See supra Part V.

148. Chun v. Bd. of Trs., 952 P.2d 1215, 1234 (Haw. 1998).



484 INDIANA LAW REVIEW [Vol. 56:465

discussed supra in Part VI follow a “hybrid” model whereby the governor can
exercise statutory or constitutional control over the attorney general while the
attorney general retains certain power that still gives it some independence when
carrying out its duties.149 Indeed, even states with attorneys general as
constitutional officers have held for statutory limitations to attorney general
discretion through governor involvement. The retained flexibility, along with
their elected status, ensures that the attorney general has the necessary amount of
impartiality to ensure a functional office. While this structure is not a traditional
“unitary,” this option adopts some of the benefits not found in a strictly
unbundled system.

To provide for a more effective and constitutional attorney general structure,
this Note proposes a two-part amendment to the Indiana Code. First, the General
Assembly should repeal the attorney general consent statute for employing
outside counsel.150 Second, there should be a replacement provision allowing for
the governor to employ outside counsel at his discretion, for either himself or
another executive agency. This addition will interact with the attorney general’s
duty to act when required to do so by the governor.151

These two changes will ensure a level of governor oversight while both
limiting attorney general discretion and retaining ultimate attorney general
independence regarding the actions in which he wants to represent the state. Not
only will this reform allow the governor more power to ensure faithful execution
of the laws, but it will also bring the attorney general closer to being less of a
“policymaker” in the Sendak view (where the attorney general would be
exercising executive power) and more of a defender of the state and
representative of its legal interests.152

A. Repeal the Consent Statute

As discussed throughout this Note, providing a limit on the governor’s power
to direct actions within the executive branch is both constitutionally and
practically unsound. The most immediate and direct remedy comes from
repealing the language found in Indiana Code section 4-6-5-3(a), which states no
agency may “name, appoint, employ, or hire any attorney or special” counsel for
representation without the attorney general's written consent.153

However, once this specific provision is repealed, there should still be a
statutory scheme in place in the instance the governor needs to appoint outside
counsel for himself or an agency. The absence of this additional provision could
potentially lead to ambiguity and unnecessary litigation. There still needs to be
a safeguard to ensure the attorney general is still effective in carrying out the
duties of the office.

149. See supra Part V.

150. IND. CODE § 4-6-5-3(a).

151. See id. § 4-6-2-1.

152. See supra Part II.

153. IND. CODE § 4-6-5-3(a).



2023] INDIANA’S ATTORNEY TOO GENERAL 485

B. Enact a Statute Outlining a Process for Governor-Appointed Counsel

After a repeal of Indiana Code section 4-6-5-3(a), a provision should be
added to allow for a process the governor could take in order to appoint outside
counsel for himself or another executive agency in the event the governor
determined the attorney general would not be able to properly appear in that
instance. A necessary aspect of this statutory provision would include the attorney
general’s inability to interfere or otherwise disrupt litigation pursued by special
counsel.154

This can take the form of one of two directions. The first is to adopt a broad
version similar to Oklahoma, Virginia, or Montana where the governor would
have extreme discretion to appoint counsel as he sees fit.155 The second option
would provide for a more structured approach aimed at proactively preventing
any potential abuse and subverting the attorney general completely.

Two interesting corollaries with which to reference both come from the
legislature. The first is the current Indiana statutes applying to legislature-
appointed counsel; this corollary would provide the broad structure for governor-
appointed action. The second is 2022 Senate Bill 165; this corollary would
provide an example of a more limiting process.156

Indiana Code section 2-3-8-1 expressly allows the legislature to “employ
attorneys other than the Attorney General.”157 Similarly, Indiana Code sections
2-3-9-2 and 2-3-9-3, for the house and senate respectively, expressly state the
ability of the speaker to employ attorneys “without obtaining the consent of the
attorney general.”158 Applying the language already used for the legislature, 159 the
reformed provision applying to the executive branch would read:

(a) This section applies if any of the following occurs:
(1) An individual is sued in the individual's capacity as an executive
officer.
(2) An agency is sued as a body.

(b) The governor may employ one (1) or more attorneys necessary to
defend a lawsuit described in subsection (a) without obtaining the
consent of the attorney general.
If more bounds are needed, although by no means constitutionally required,

a more structured provision could include a compulsory process whereby the
attorney general could petition the governor’s action to appoint counsel; there
would be a rebuttable presumption that the governor’s acts and judgment are

154. See Riley v. Cornerstone Cmty. Outreach, Inc., 57 So.3d 704, 739, 741 (Ala. 2010)

(holding the state attorney general cannot interfere with litigation pursued by officers acting under

the governor’s directions).

155. See supra Part V.

156. See infra notes 160-63 and accompanying text.

157. IND. CODE § 2-3-8-1.

158. Id. §§ 2-3-9-2, -3.

159. See id.



486 INDIANA LAW REVIEW [Vol. 56:465

proper.
The introduction and Senate approval of SB 165 in early 2022160 creates

precedent for legislative acceptance of this very solution: for an executive branch
officer (the attorney general) to replace an elected position (a county prosecutor)
in the event of noncompliance by that elected official.161 Here, like the attorney
general in SB 165, the governor would have similar discretion in determining if
the attorney general is either “noncompliant” on a particular issue or otherwise
finds good cause that outside counsel should be appointed in that instance.162

A process with more safeguards against abuse could very much mirror that
which SB 165 holds for allowing the attorney general to appoint a special
prosecuting attorney.163 Generally, upon the governor’s determination that outside
counsel should be appointed for a particular action, the attorney general would
have the ability to file a petition in an attempt to enjoin such appointment. In the
petition, the attorney general would set forth reasons for his decision including
why there is a belief that the attorney general should be the state's representative
in this instance and why it is in the state's best interest that the court grant the
petition. The governor would be able to file an answer to this petition, although
he would have no burden of proof in the action as the burden would rest on the
attorney general to prove the governor’s appointment is improper. Upon review,
the court can either (1) deny the attorney general’s petition and accept the
governor's choice for appointment of counsel, (2) accept the petition and deny
appointment, or (3) assign counsel directly.

Certain limits or bounds to an appointment statute have precedent. Relating
to Virginia’s special counsel statute, the Virginia Supreme Court noted, “[t]he
scope of the appointment of special counsel must, however, be limited by
objective parameters specified within the Governor’s exemption order . . . [and]
the scope of the appointment is limited in duration until such time that the

160. A version of this bill was passed in early 2021 as SB 200. See Olivia Covington, Bill

Challenging ‘Noncompliant’ Prosecutors Clears Indiana Senate, IND. LAW. (Feb. 23, 2021),

https://www.theindianalawyer.com/articles/bill-challenging-noncompliant-prosecutors-clears-

indiana-senate [https://perma.cc/BC6B-K3VC] [hereinafter Covington, Challenging] (noting

references to Marion County Prosecutor Ryan Mears’s policy of not prosecuting for possession of

small amounts of marijuana).

161. S. 165, 122d Gen. Assemb., 2d Reg. Sess. (Ind. 2022), http://iga.in.gov/legislative/

2022/bills/senate/165#document-c2904cd1 [https://perma.cc/F938-3AJL] (SB 165 “[p]ermits the

attorney general to request the appointment of a special prosecuting attorney if a prosecuting attorney

is categorically refusing to prosecute certain crimes, and establishes a procedure for the appointment

of a person to serve as a special prosecuting attorney to prosecute cases that the county prosecuting

attorney is refusing to prosecute.” As of the authoring of this Note, the Indiana House of

Representatives has not acted further on its enactment.).

162. Covington, Challenging, supra note 160; Olivia Covington, Bill Aims to Prevent Social

Justice Prosecuting, IND. LAW. (Mar. 3, 2021), https://www.theindianalawyer.com/articles/bill-aims-

to-prevent-social-justice-prosecuting [https://perma.cc/ZH3Q-9S7V].

163. See Ind. S. 165.



2023] INDIANA’S ATTORNEY TOO GENERAL 487

purported conflict of interests abates.”164

The knowledge that the governor may step in to take action would ensure the
attorney general is attentive to all potential matters needing attention as he would
rather take the action himself than have someone else step in in the event of his
inaction. Without such incentive, and with the inability of the governor to become
involved, necessary actions on important matters may not be taken at all. 

As explored supra in Part III, the policy reasons for reform include scenarios
in which the attorney general potentially chooses not to bring a case, or is not fit
to bring a particular case, that may be integral to the governor’s agenda and
necessary for public confidence in his continued future prospect as chief
executive. The dissenting opinion in Perdue explained the continuous dilemma
under the current structure.

On the other hand, when the Governor and Attorney General do disagree,
there is no longer any incentive for mutual consultation and possible
compromise. The Attorney General can flatly refuse to consider
implementing the Governor’s decision, thereby leaving the head of the
executive branch completely without legal representation. Each intra-
executive branch stalemate over policy will then escalate into a political
contest, with each constitutional officer seeking the General Assembly’s
enactment of a statute validating his or her position.165

Former Attorney General Zoeller’s recognition that outside counsel could
undoubtedly benefit the State in certain circumstances, and “ensure that [a] state
statute will receive a stronger defense,” does not take into account a scenario
where the attorney general might deny the State this benefit (whether consciously
or subconsciously).166 This level of discretion seems too great to place in the
hands of a non-constitutional executive officer.

C. In Relation to the Governor’s Written Request to Act

The attorney general’s “powers and duties” includes the requirement for the
attorney general to “prosecute and defend all suits . . . whenever the governor .
. . require[s] the attorney general in writing.”167 As noted in Part II, once the
governor makes this request, there is currently no provision allowing the governor
further action in the event the attorney general fails to act or takes a position that
would render him ineffective in acting. 

The recommendation allowing for governor-appointed outside counsel would
address certain circumstances where the attorney general does not adequately
respond to the request—particularly needed in matters where the attorney general
has exclusive jurisdiction to bring actions.168 Thus, in the event the governor

164. Wilder v. Att’y Gen., 439 S.E.2d 398, 402 (Va. 1994).

165. Perdue v. Baker, 586 S.E.2d 606, 623 (Ga. 2003) (Carley, J., dissenting).

166. Zoeller, supra note 93, at 551.

167. IND. CODE § 4-6-2-1 (2022).

168. See supra Part III.



488 INDIANA LAW REVIEW [Vol. 56:465

invokes a request for action, the appointment recommendation would then
become increasingly relevant.16 9 Broad discretion would be granted to the
governor in this instance when the attorney general fails to file within a
reasonable time or act at all relating to the governor’s request.

Certain circumstances may arise where the attorney general may be willing
to participate in an action but is subject to a conflict of interest or is otherwise
unable to adequately serve the state's interests.170 While the governor may have
the power to request the attorney general to act in a certain matter, the situation
could arise where the governor would need another option.171 The governor's
judgment in these circumstances would dictate invoking outside appointment. 

This proposal aims to ensure that the governor has further proper authority
within the executive branch; the attorney general retains the ability to bring the
cases he wants to initiate and, as long as there is genuine action on those cases
enough to withstand judicial scrutiny, the attorney general would retain
independence in his actions. Current statutory language maintaining the attorney
general’s status as representing the state and ability to initiate investigations at
will ensure a proper level of independence to carry out official duties.172

The ultimate intent and main reason behind allowing for the governor to
employ outside counsel are two-fold: its closer adherence to the Indiana
Constitution—for both the governor’s vested power and separation of powers
between executive and legislative branches—and to strengthen the outcomes of
our government. Under the Sendak aim of limiting the attorney general from
dictating policy, the repeal and replacement of the consent statute better ensures
the governor's involvement in policy decisions regarding what matters can be
prosecuted or defended rather than leaving him no say at all.

D. Rebuttal to Arguments Against Reform

An argument against giving the governor oversight authority over the
attorney general, and thus limiting attorney general independence, is that conflicts
would ensue as a result of the elected attorney general wanting to assert his
discretion and maintain his political future. A reason why more bounded attorney
general authority would not lead to increased conflict is the attorney general’s
incentive to not want to be seen as defying the popularly elected governor on a
statutory rule. While the attorney general could still have political aspirations, the
risks of “expending political capital by appearing reckless, if not lawless” are ever

169. See Zoeller, supra note 93, at 552 (citing 71 PA. CONS. STAT. ANN. § 732-303(a)-(b) (2012)

(“If the attorney general refuses to give authorization [after the governor’s request], the governor may

intervene as of right.”)).

170.

See id. at 551 (recognizing “the attorney general’s office may encounter a conflict of interest or a

statute that falls outside its area of expertise”).

171. See supra INTRODUCTION.

172. See supra Part II.



2023] INDIANA’S ATTORNEY TOO GENERAL 489

present.173

Another significant argument against reform is that it would place too much
of a political nature around the attorney general if its “independence” is to be
replaced with interference from the executive. The counter to this is that the
Constitution allows for three departments of government, each with designated
duties not to be exercised by any of the others.174 It cannot stand to reason that a
statutorily created officer can be able to exist in performing any of its duties as
if it were one of these “three separate departments” itself and bypassing Article
III of the Indiana Constitution; neither can it stand for the legislative branch to
define and outline the scope of an official while leaving the chief executive no
power over it.175 The United States Supreme Court considered this very
possibility in Myers v. United States: “It could never have been intended to leave
to Congress unlimited discretion to vary fundamentally the operation of the great
independent executive branch of government and thus most seriously to weaken
it.”176

A safeguard to the attorney general’s overall independence, as explored in
Perdue in Part V supra, rightfully prevents the governor from compelling the
attorney general to dismiss an action once he brings it.177 The governor’s
interjection would only apply to employing outside counsel for cases the attorney
general has not yet brought. The attorney general has an incentive to not simply
bring a case without serious intent to vigorously pursue its ends simply to prevent
the governor’s involvement. The attorney general would not want to be seen as
ineffective by not prevailing in all suits his office is involved; this would damage
either his prospects at reelection or future higher political aspirations.

Concerning the constitutionality of a statute allowing the governor to employ
special counsel, the Virginia Supreme Court provides an explanation. In Wilder,
the Virginia attorney general contended the special counsel statute was
unconstitutional, but the court responded that there was simply no specific
identification of any constitutional provision that could be implicated as being
violated.178 Concerning Indiana, there is likewise no constitutional provision
implicated that would indicate a violation; on the contrary, the statute requiring
the attorney general’s consent for outside counsel does clearly violate multiple
provisions of the Indiana Constitution.179

173. William P. Marshall, Break up the Presidency? Governors, State Attorneys General, and

Lessons from the Divided Executive, 115 YALE L.J. 2446, 2454 (2006). Marshall expressed this as

to why cooperation rather than conflict has been the rule regarding governor and attorney general

interaction in a divided executive. However, in a structure comporting more with the Constitution and

separation of powers, conflict that even does arise under this structure will be more tolerable than if

the governor had no statutorily available response. See id.

174. IND. CONST. art. III, § 1.

175. See id.

176. 272 U.S. 52, 127 (1926).

177. See supra note 127 and accompanying text.

178. Wilder v. Att’y Gen., 439 S.E.2d 398, 403 (Va. 1994).

179. See supra Part I.



490 INDIANA LAW REVIEW [Vol. 56:465

CONCLUSION

Following the Marion County Civil Court’s denial of Attorney General
Rokita’s procedural objections relating to the Governor’s employing outside
counsel,180 the Indiana Supreme Court first denied the emergency petition to rule
on the matter181 and then ultimately affirmed the trial court’s ruling on the
procedural matters.182 The Indiana Supreme Court supported its ruling by
recognizing “[t]he Attorney General’s authority, statutorily granted by the
General Assembly, simply cannot trump the Governor’s implied power to litigate
in executing his enumerated power under the take-care clause without violating
our Constitution’s careful distribution of powers.”183 This reasoning naturally and
logically extends to all other instances involving an attorney general’s authority
over the governor in bringing cases concerning the executive branch and the State
of Indiana.

As previously discussed, however, the issue the Indiana Supreme Court
decided specifically related to the governor’s ability to employ counsel for
himself in litigation he initiated and would not necessarily control in other
instances; these other instances would likely lead to additional adjudication in
same manner as the Holcomb case.184 The time spent on these proceedings, past
and future, cannot be considered an effective use of court and government
resources when the constitutional implications are clear and could be resolved by
a simple statutory change.

As the attorney general has certain functions that could be considered to fall
under different branches of government, the position does not always “fit neatly
within the framework described by the doctrine of separation of powers.”185 Like
the duty to defend the constitutionality of legislation, some of the attorney

180. Order Denying Motion to Strike and for Alternative Relief, Holcomb v. Bray, No. 49D12-

2104-PL-014068 (Marion Co. Super. Ct. July 3, 2021); see also Tom Davies, Judge Letting Indiana’s

Governor Sue to Block Emergency Law, AP NEWS (July 6, 2021), https://apnews.com/article/in-state-

wire-indiana-health-coronavirus-pan dem ic-law s-8 f0 8 c5 7 4df2950ac1ab845d48e1c7252

[https://perma.cc/ZF4T-G2BH].

181. Order Denying Request for Emergency Writ, Holcomb v. Bray, No. 21S-OR-00354 (Ind.

Sup. Ct. Aug. 3, 2021); see also Marilyn Odendahl, Rokita Loses First Attempt at Indiana Supreme

Court to Stop Governor’s Lawsuit Against General Assembly, IND. LAW. (Aug. 3, 2021),

https://www.theindianalawyer.com/articles/rokita-loses-first-attempt-at-indiana-supreme-court-to-

stop-governors-lawsuit-against-general-assembly [https://perma.cc/TQ3X-PWDU].

182. Holcomb v. Bray, 187 N.E.3d 1268, 1288-90 (Ind. 2022).

183. Id. at 1289 (citing Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss. 1987) (en banc)

(“We refuse to relegate to the Attorney General either the exclusive authority to bring a suit such as

this or the discretion whether and how that authority should be exercised.”)).

184. Id. (“[The attorney general] cannot prevent the Governor from bringing a suit and hiring

outside counsel to do so.”); see also supra INTRODUCTION.

185. Henry J. Abraham and Robert R. Benedetti, The State Attorney General, A Friend of the

Court?, 117 U. PA. L. REV. 795, 797 (1969)).



2023] INDIANA’S ATTORNEY TOO GENERAL 491

general’s responsibilities will creep outside of the executive branch.186 “A part of
neither the executive nor the legislative branch, he is a legal advisor to both.”187

This makes it somewhat difficult to ultimately evaluate what is best for the
position relative to the entire structure of government. However, addressing the
position regarding its specific relation and duties to the executive branch can be
done. The statutory scheme itself should squarely address the solution; the
judiciary cannot be the sole source of reconciliation to deal with issues between
the constitution and a statutory officer.

An attorney general’s blanket discretion to allow or deny the head of the
executive branch to bring a particular suit by way of outside counsel is the kind
of policymaking decried in Sendak.188 Ultimately, this is an issue of both
constitutionality and practicality. Constitutional provisions should inform and
control the structure that exists within a given branch of government; it is hard to
interpret any aspect of the Indiana Constitution as meaning for there to be a limit
on the chief executive’s actions within the executive branch itself. Outside any
express provisions to the contrary, it is also noteworthy to consider what the
founders of the United States Constitution envisioned as a sustainable system of
government when considering how a state system should be structured. The
practical aspects of the unitary executive, the Indiana Constitutional, and Indiana
Supreme Court precedent nonetheless make statutory reform most effective in
ensuring a functional and effective configuration for the attorney general within
the executive branch.

186. See Zoeller, supra note 93, at 517.

187. Myers, Status in State Government, supra note 52, at 53 (quoting Arlen C. Christenson, The

State Attorney General, 1970 Wis. L. Rev. 300). “It may be questioned whether the Attorney General

can be an officer of a branch other than the executive branch under any state constitution based upon

a separation of powers structure.” Id. at 53 n.6.

188. See discussion supra Section II.C.