Cory Voight: Why the attorney general’s office issues advisory opinions
"As the attorney for the state of Indiana, Attorney General Todd Rokita and his deputies serve as counsel to statewide elected officials, state legislators, state agencies and 91 county prosecutors. The breadth and scope of this representation is staggering and sometimes lost, even on our own legal community.
This is unfortunate considering my daily observations of dedication and excellence exuded by the over 150 attorneys who work for the office and prosecute, defend and candidly advise in furtherance of a shared purpose—to do justice for Indiana and plainly be the best advocates for our fellow Hoosiers in state government. Letting others know about our good work and expanding the understanding of our role in state governmental affairs is one of the best parts of my job.
Recently, some have expressed concerns over an advisory opinion we issued, which the attorney general discussed at a press conference. As routinely happens, one of our elected officials, State Sen. Andy Zay, requested the opinion to clarify whether terminated pregnancy reports are confidential.
Given the questions over the press conference and my clear affinity for the office’s work, I did not want to miss the opportunity to discuss why we have an Advisory Division within the Attorney General’s Office in the first place.
It has long been the practice of state attorneys general offices across our nation to issue advisory opinions. The same is true for our federal attorney general office in Washington, which also releases official opinions under its Office of Legal Counsel. You see, our office advises and at times does so in a very public way.
The advisory opinion at issue, like many before it, was the result of work undertaken by several attorneys. The opinion concludes that TPRs are not confidential and quite reasonably advises the releasing state agency of a middle ground—to release the TPR and redact anything that reasonably could be used to identify a particular patient. This approach would address patient privacy concerns particularly where the intent of the legislature is to monitor the procedure, not the patient.
Ultimately, the opinion does what lawyers normally do. It renders candid advice on how to mitigate the risk of a lawsuit. At the press conference, prompted by questions from participants, the attorney general in his direct and unvarnished manner expressed as much, noting that a failure to heed the office’s advice could result in litigation in the form of a lawsuit against the state.
Advisory opinions serve an essential function and provide public officials a correct, legal interpretation of the law. Additionally, a question may be presented to assist a state official in determining a policy choice or future course of action. As noted by the attorney general, advisory opinions serve to help protect public officials from legal liability and lawsuits that could result from an incorrect interpretation of the law.
Of course, our Advisory Division renders sound legal advice in many other settings — at state administrative board hearings, through informal phone calls with local officials, and through careful review of state legal contracts and administrative rules.
The work is ongoing and amazingly diverse, which at times means it’s challenging and may draw scrutiny. We should be grateful for the lawyers who work in these roles. It’s an important undertaking that in the best circumstances helps government function efficiently for Hoosiers.
Finally, I’d be remiss if I did not let you know that during the Rokita administration, the office has done the difficult work to digitize and offer an online database of the office’s advisory opinions from the 1920s to today. We continue working to upload opinions dating back to 1873.
This database, which is publicly available, is a fascinating rabbit hole for the historically inclined among us and contains many opinions providing guidance to state agencies over the proper interpretation of the law. A review of these many digitized opinions will reflect that the office has often had occasion to correct a misinterpretation of an agency or official. In other words, this has happened before.
As it has for many decades, the Advisory Division of the Attorney General’s Office will continue to help the State of Indiana follow sound legal precepts for the benefit of all Hoosiers as we all work together to build a better, stronger Indiana.•
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Cory Voight is a assistant chief deputy in the Office of Indiana Attorney General Todd Rokita. Opinions expressed are those of the author."
*Posted on The Indiana Lawyer
Attorney General Todd Rokita warns local leaders: Immediately rescind illegal ‘sanctuary city’ policies
Attorney General Todd Rokita cautioned local officials in several Indiana cities and counties that he will pursue legal action against them after July 1 if they refuse to follow laws aimed at apprehending illegal immigrants.
Attorney General Rokita’s office sent a blunt message to officials in East Chicago, Gary, West Lafayette and Monroe County: Confirm you have rescinded local policies that enable illegal immigration — or face swift legal consequences starting July 1.
“The flood of illegal immigrants entering the United States is a problem that harms all of us,” Attorney General Rokita said. “The ones paying the price for this lawlessness are Hoosier taxpayers, who must bear increased costs for health care, education and other services used by illegal immigrants.”
The Indiana General Assembly passed a law this year authorizing the attorney general to file lawsuits against any Indiana colleges, universities or units of local government not enforcing current Indiana laws banning sanctuary cities.
A "sanctuary city" is a term for a local unit of government that has adopted a policy to deliberately and intentionally disregard federal law and not cooperate with federal immigration authorities.
Town hall attendees and some state representatives have decried these “immigrant welcome centers” popping up around the state, expressing worries that crime and illegal, cheap labor will displace current residents in places like Johnson and Jackson counties.
“We welcome want-to-be-patriots to the United States who will add value to our country and want to live their lives under the values this country was founded upon,” Attorney General Rokita said. “The first way they can show that is by following our laws. Those who do not follow our laws by entering our country legally should not be allowed to stay.”
Attorney General Rokita has sent letters to officials in the cities of East Chicago, Gary, West Lafayette and Monroe County — warning them of impending action if they do not repeal current policies violating Indiana law.
As an example, the letter sent to East Chicago officials is attached.
Attorney General Todd Rokita sues unlicensed Indy real estate manager for allegedly duping investors
Attorney General Todd Rokita has sued an Indianapolis man and associated businesses involved in schemes to defraud real estate investors — alleging that Herbert Whalen continued to engage in the management of property for investors despite lacking a real estate broker license, as required by law, and hiding prior convictions.
In addition to Whalen, others named as plaintiffs in the lawsuit are MBNS LLC; MBNS Invest LLC; and My Bricks and Sticks LLC (now dissolved).
“Our office has made it clear that when you break the law, we will hold you accountable,” Attorney General Rokita said. “Real estate investors and tenants should be able to trust that their property managers have the knowledge and skills necessary to protect their investments and their homes.”
Requiring property managers to hold valid real estate broker licenses helps ensure that professionals in the field meet basic standards of competence and ethical responsibility.
The lawsuit alleges that Whalen, following a guilty plea relating to a 2018 conspiracy to defraud real estate investors in the Oceanpointe Investments scheme, has continued his illegal activities using a series of LLCs and the fictitious name “Herb Francis.”
The 2018 guilty plea followed Whalen’s perpetrating of a scheme to obtain money from victim real estate investors by misrepresenting and concealing the poor condition of properties he managed as owner of a company called Oceanpointe. As part of the scam, Whalen arranged for investors to purchase dilapidated properties with the promise that after repairs and rehabilitations were completed, and tenants rented the properties, investors would receive copies of the leases and begin to receive rent payments as their return on investment. In reality, many Oceanpointe properties were not repaired and rehabilitated, and were not ready for occupancy. To conceal this fact from victim investors, Whalen and others directed Oceanpointe employees to draft fake leases, making it appear to investors that Oceanpointe properties were rented when, in fact, the properties remained vacant.
Investors have alleged that Whalen used a false name to conceal his identity and utilized various LLCs to provide property management services. None of the entities created by Whalen and his recently departed wife Natalie Bastin maintain broker licenses.
Whalen’s broker license was revoked in early 2018 by the Indiana Real Estate Commission when he failed to report a series of criminal convictions and for knowingly managing a company without a broker company license.
Attorney General Rokita’s Consumer Protection Division filed this lawsuit through its Homeowner Protection Unit, which exists to protect the rights of all individuals involved in the housing market, including tenants, homeowners, and aspiring homeowners, by investigating and redressing deceptive acts in connection with mortgage lending and violations of relevant state and federal laws.
Attorney General Rokita expressed gratitude to his team, including Deputy Attorney General Chase Haller — Section Chief for the Homeowner Protection Unit — for their work on this case.
The lawsuit demands a jury trial, costs of prosecution, and other damages against the defendants for multiple violations of the Home Loan Practices Act.
Hoosiers are encouraged to contact the Office of the Indiana Attorney General about any suspected scams or scam attempts. Consumers can file a complaint by visiting indianaconsumer.com or calling 1-800-382-5516.
The lawsuit and a related court document are attached.
Biden Admin Forcing Medical Providers to Perform Gender Transition Surgeries Under Affordable Care Act, Attorney General Todd Rokita Lawsuit Alleges
As part of a new lawsuit, Attorney General Todd Rokita is challenging a U.S. Department of Health and Human Services (HHS) rule that seeks to force medical providers to perform surgeries and administer hormones to both children and adults for the purpose of gender transition.
“The Biden administration will stop at nothing to impose its radical transgender ideology on Hoosiers and all Americans,” Attorney General Rokita said. “These HHS bureaucrats are illegally weaponizing the U.S. healthcare system in this misguided quest. With our lawsuit, we aim to protect common sense, science and the rule of law — not to mention the physical and mental health of people experiencing gender dysphoria.”
The rule redefines the Affordable Care Act’s prohibition against discrimination on the basis of “sex” to include “gender identity.” The rule deems doctors guilty of discrimination for hewing to the scientifically grounded reality that males and females have different anatomies and physiologies that require different kinds of care.
In 2016, federal courts struck down as unlawful a similar rule sought by the Obama administration.
The Biden administration’s rule could cause significant damage to Indiana and the 14 other states that signed on to the lawsuit – places where medical providers have restrictions against performing gender-transition interventions on minors.
Covered entities found non-compliant with this new HHS rule risk the loss of significant federal funding — including the loss of billions of dollars in state Medicaid funding designed to assist low-income individuals. They also risk exposure to civil liability through private lawsuits.
The 15-state lawsuit — led by Tennessee and Mississippi — is attached, along with related court documents.
Attorney General Todd Rokita races to support consumers by raising awareness of harmful household products recalled in May
Attorney General Todd Rokita is alerting Hoosiers of important consumer protection concerns for products recalled in May. The office encourages consumers to take advantage of opportunities available for those who purchase recalled items that could be harmful to their families.
“Summer is in full swing, and that means you and your family will be spending more time outdoors,” Attorney General Rokita said. “Don’t let the beautiful weather be ruined by an outdoor item breaking down. If you have one of the recalled products, stop using it immediately and pursue resolution from the manufacturer immediately.”
According to the Consumer Product Safety Commission, the following consumer products were recalled in May:
If you believe you recently purchased a recalled product, stop using it, and check its recall notice (linked above for all products). Then follow the notice’s instructions, including where to return the product, how to get the product fixed, how to dispose of the product, how to receive a refund for the product, or what steps must be taken to receive a replacement product.
To view recalls issued prior to May visit the Consumer Protection Safety Commission website.
Attorney General Todd Rokita co-leads lawsuit against federal takeover of coal mining regulations
Attorney General Todd Rokita is co-leading a multistate lawsuit against U.S. Interior Secretary Deb Haaland’s invasive federal encroachment efforts that would literally undermine state regulatory authority over surface coal mining and reclamation.
As Congress recognized in the Surface Mining Control and Reclamation Act of 1977, coal mining is essential for the health of this nation’s energy industry, economy and national security. The act gives Indiana and other states with federally approved programs exclusive jurisdiction over most aspects of surface coal mining and reclamation.
The new rule overturns the premise of the act by allowing the federal government to second-guess decisions that Congress entrusted to states’ regulators, which have superior expertise and knowledge about local coal mining operations. It also threatens to bog down coal mining operations by miring states in federal red tape.
“Simply put, this new rule is unlawful,” Attorney General Rokita said. “It intrudes on Indiana’s rightful authority under the American system of federalism. We’re suing to uphold the proper balance of power between the individual states and the federal government and to prevent another unjustified assault by the Biden administration on coal.”
The State of Indiana has a strong record in providing proper oversight of surface coal mining and reclamation operations, Attorney General Rokita noted, running programs that have won national and regional awards.
Federal officials themselves, evaluating Indiana programs in 2023, stated the Indiana Department of Natural Resources “administers its program in a way that effectively protects citizens and the environment from adverse impacts resulting from surface coal mining activities.”
The lawsuit is attached.
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