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By Marilyn Odendahl

The Indiana Citizen

May 31, 2024

Indiana Attorney General Todd Rokita is threatening four municipalities across the state with legal action if they do not rescind local policies that, he says, enable illegal immigration, but state Senate Democrats assert this is a ploy for his own political gain.

The four letters – sent to the common councils of East Chicago and Gary, the West Lafayette Police Department and the Monroe County Sheriff – cited the state statute prohibiting so-called sanctuary cities that was amended during the 2024 session of the Indiana General Assembly. Authored by Indiana Sen. Eric Koch, R-Bedford, the new provision gave the attorney general the power to bring a lawsuit against any governmental body or any Indiana college or university that is deemed as not complying with the statute.

Although the amended law does not take effect until July 1, the attorney general is demanding the four municipalities reply to his letter by June 14. The letters to each municipality said they had local policies that violated the law and they had to be rescinded if those policies were still in effect.

In the letters, Rokita pointed to the amended statute and said he would proceed to file a lawsuit against the four municipalities, if they do not revoke their policies by July 1.

“The flood of illegal immigrants entering the United States is a problem that harms all of us,” Rokita said in a press release issued Friday. “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.”

However, Indiana Senate Minority Leader Greg Taylor, D-Indianapolis, and his Democratic colleagues, Sens. Lonnie Randolph, of East Chicago; David Vinzant, of Gary; and Shelli Yoder, of Bloomington; criticized the attorney general’s threats against East Chicago, Gary and West Lafayette, all of which are led by Democratic mayors, and Monroe County Sheriff Ruben Marte, who is also a Democrat.

“Time and time again, Attorney General Todd Rokita proves himself to be a hammer in search of a nail,” the Democratic senators said. “The letters and statement issued this morning targeting municipalities in Northwest Indiana as well as Monroe County are simply the latest ploy from our Attorney General to take advantage of Hoosiers, threaten minority groups, and misrepresent our communities for his own political gain – just as members of our Caucus predicted during floor debate on the law he is threatening to invoke.”

Questions about the standard of evidence and damages

In 2011, the Indiana General Assembly passed Senate Enrolled Act 590, a large immigration bill that, among other things, prohibited local governments from limiting or restricting information on the immigration status of an individual and the enforcement of federal immigration laws. Koch’s SEA 181 added language in response to an Indiana Supreme Court decision, which found individuals could not bring any legal action, themselves, to enforce the statute.

The state Supreme Court case originated shortly after the city of Gary adopted a welcoming ordinance in 2017. Four individuals subsequently sued the municipality, asserting four sections of the ordinance violated the state statute barring sanctuary cities. The Lake County Superior Court agreed and enjoined Gary from enforcing those sections.

However, in 2022, a unanimous Indiana Supreme Court reversed the lower court in City of Gary v. Jeff Nicholson, et al., 22S-MI-252. The justices ruled the plaintiffs did not have standing to sue Gary, because they could not show how the ordinance injured them, personally.

Koch’s amendment to the law gives standing to the Indiana attorney general. SEA 181 states that if the attorney general determines that probable cause exists that a local government or institution of higher education has violated the law against sanctuary city policies, then the attorney general “shall bring an action to compel” compliance.

In presenting the bill for a third reading in the Senate, Koch said SEA 181 was only giving the attorney general enforcement powers and not creating any new policy about sanctuary cities.

“We’ve set the policy,” Koch said. “We set the policy in 2011 and that’s been decided. This is simply being able to enforce it.”

Koch defended the amendment, saying the attorney general already has standing to act on behalf of Indiana in many instances. In particular, he said, the state’s top lawyer has standing to bring actions for election violations, price gouging, tax evasion, unlawful operations of child care homes, dissolution of public benefit corporations, and trade violations.

Looking deeper into the bill, minority leader Taylor highlighted another change that, he said, lowered the standard by which an entity could be found to have violated the statute. SEA 181 states that if a court finds “by a preponderance of the evidence” that the governmental body or postsecondary school has “knowingly or intentionally violated” the prohibition against implementation of sanctuary city policies, then the court shall block the policy.

Taylor argued, during the Indiana Senate debate, that because the law, right now, does not include any language about the standard of evidence, it defaults to the higher level of clear and convincing evidence. Koch did not agree with Taylor’s argument, but he said the attorney general would have to find probable cause that a local government or higher-ed institution violated the statute and then prove the violation by a preponderance of evidence.

Taylor also questioned “who wins” under SEA 181. He said the amended language was unclear as to what damages the attorney general could claim in any lawsuit he filed.

“This doesn’t create a new right of action,” Taylor said, adding the bill allows the attorney general to take the place of Hoosiers in filing a lawsuit, and lowers the standard of evidence to prove the case. “And, there’s no damages he can claim. … The only thing that Attorney General Todd Rokita can actually get from this is political gain. It’s not to benefit any of us.”

Letters in response to concerns

The press release from Rokita’s office said that East Chicago, Gary, West Lafayette and Monroe County had to confirm their local policies had been rescinded or they would “face swift legal consequences” starting July 1. Also, he defended the letters, pointing to concerns raised at town halls and by “some state representatives” that these “immigrant welcome centers” are bringing crime and illegal, cheap labor.

“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,” Rokita said in the press release. “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.”

In their joint statement, Taylor, Randolph, Vinzant and Yoder dismissed Rokita’s explanation.

“If the AG finds probable cause that the law is not being followed after July first, he is welcome to prove his case in a court of law,” the Democratic senators said Friday. “Until then, this is nothing but further posturing before the court of public opinion. We believe Hoosiers can see right through AG Rokita, and so do the lawmakers elected by the communities he’s threatened today.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org