WHOLE WOMAN'S HEALTH ALLIANCE et al v. HILL et al

Filing 81

ORDER - denying 37 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sarah Evans Barker on 3/28/2019. *** SEE ORDER *** (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WHOLE WOMAN'S HEALTH ALLIANCE, )
ALL-OPTIONS, INC., and
)
JEFFREY GLAZER, M.D.,
)
)
Plaintiffs,
)
)
v.
)
)
CURTIS T. HILL, JR., in his official capacity, )
KRISTINA BOX, in her official capacity,
)
JOHN STROBEL, M.D., in his official
)
capacity, and
)
KENNETH P. COTTER, in his official
)
capacity,
)
)
Defendants.
)

No. 1:18-cv-01904-SEB-MJD

ORDER ON MOTION TO DISMISS (DKT. 37)
Plaintiffs have sued Defendants under 42 U.S.C. § 1983, challenging as
unconstitutional a broad swath of Indiana’s statutory and regulatory restrictions on
providing and obtaining abortions. Dkt. 1. Now before the Court is Defendants’ motion to
dismiss Plaintiffs’ complaint with prejudice. Dkt. 37. See Fed. R. Civ. P. 12(b)(1), (6).
For the reasons given below, the motion is denied.
Background
Plaintiffs are Whole Woman’s Health Alliance (WWHA); All-Options, Inc. (“All
Options”); and Dr. Jeffrey Glazer (“Glazer”). WWHA “is a nonprofit organization
committed to providing holistic reproductive healthcare, particularly abortion care.”
Compl. ¶ 14. WWHA has applied for a license to operate an abortion clinic in South

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Bend, Indiana, a point discussed in greater detail below. Further, WWHA “engages in
advocacy, education, and community outreach to eradicate abortion stigma.” Id. ¶ 15. It
“devotes considerable time and resources to fighting restrictive abortion laws . . . and
helping patients and clients cope with their burdensome impacts.” Id.
All Options “is a nonprofit organization that . . . promote[s] unconditional,
judgment-free support for people in their decisions, feelings, and experiences with
pregnancy, parenting, abortion, and adoption.” Id. ¶ 19. It has an office in Monroe
County, Indiana. Id. ¶ 22. All Options does not itself provide abortions, but, “[w]hen a
client seeks to terminate their pregnancy, All-Options helps them [obtain an abortion] by
removing barriers to access” through financial assistance and counseling. Id. ¶ 21.
“Ultimately, some of All-Options[’s] clients must travel [outside of Indiana] to obtain
abortion care because the burdens created by Indiana law make it too difficult to obtain
timely care in Indiana.” Id.
Glazer “is a board-certified obstetrician-gynecologist licensed to practice medicine
by the State of Indiana. Dr. Glazer is an abortion provider. He intends to serve as the
Medical Director of WWHA’s prospective South Bend clinic, where he will provide
abortion care.” Id. ¶ 23.
Defendants are Curtis T. Hill. Jr., Attorney General of Indiana (“the Attorney
General”); Dr. Kristina Box, Commissioner of the Indiana State Department of Health
(ISDH); Kenneth P. Cotter, St. Joseph County, Indiana, Prosecutor; and Dr. John Strobel,
President of the Medical Licensing Board of Indiana. All Defendants are sued in their
official capacities only. Compl. ¶¶ 24–27.
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On August 11, 2017, WWHA applied to ISDH for a license to open an abortion
clinic in South Bend. See Ind. Code § 16-21-2-10(1). WWHA supplemented its
application in response to ISDH inquiries on October 6, 2017, and December 8, 2017. On
January 3, 2018, ISDH denied the application. On January 22, 2018, WWHA lodged an
administrative appeal. The administrative law judge (ALJ) issued a nonfinal order
holding the denial erroneous, but on December 18, 2018, the ISDH Appeals Panel, the
agency’s “ultimate authority” under Indiana administrative law, see Ind. Code § 4-21.5-115, reversed; held that ISDH’s denial was not arbitrary or capricious; and issued a final
order denying WWHA’s application. By statute, WWHA had until January 17, 2019, to
seek judicial review of that denial, see Ind. Code § 4-21.5-5-5, but neither the record in
this case nor our review of Indiana public records reveals whether it has been sought.
ISDH regulations provide in applicable part that it “may deny a license to operate
an abortion clinic for any of the following reasons: (1) If the licensee or licensees are not
of reputable and responsible character. . . . (7) If the application for a license to operate
an abortion clinic or supporting documentation provided inaccurate statements or
information.” 410 Ind. Admin. Code 26-2-5(1), (7). ISDH predicated its initial denial on
its determination that “WWHA failed to meet the requirement that the Applicant [be] of
reputable and responsible character and the supporting documentation provided
inaccurate statements or information.” Dkt. 43 Ex. 1, at 2. Specifically, “[i]n response to
[ISDH’s] request to list all of the abortion and health care facilities operated by WWHA,
its parent, affiliate, and subsidiary organizations, WWHA failed to disclose, concealed, or
omitted information related to additional clinics.” Id.
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The Appeals Panel elaborated that WWHA had failed to be forthcoming about its
“affiliates.” Dkt. 67 Ex. 1, at 8. WWHA argued, and the ALJ had apparently agreed, that
it had properly disclosed all of its “affiliates” as that term is used in the Indiana statutes
governing nonprofit corporations like WWHA, Ind. Code art. 23-17. Dkt. 43 Ex. 2, at 3.
Relying on those and other scattered statutes as well as a decision of the Indiana Court of
Appeals, the Appeals Panel disagreed, finding that several undisclosed abortion providers
were “affiliates” of WWHA. Dkt. 67 Ex. 1, at 9. Accordingly, the Appeals Panel held,
“[WWHA] provided inaccurate statements to ISDH in [WWHA’s] supporting
documentation and its license application should be denied pursuant to 410 [Ind. Admin
Code] 26-2-5.” Id. The Appeals Panel did not address whether, because of such
inaccuracies or for other reasons, WWHA was not “of reputable and responsible
character,” 410 Ind. Admin. Code 26-2-5(1), as ISDH initially determined.
This lawsuit was filed on June 21, 2018. The complaint attacks as violative of the
First and Fourteenth Amendments to the Constitution virtually or actually the entire
universe of Indiana abortion regulations, which, the complaint alleges, serve no medical
or other legitimate regulatory goal but instead exist solely to burden provision of and
access to abortions.
Defendants’ motion to dismiss contends that Plaintiffs’ complaint should be
dismissed with prejudice “based on well-settled abstention doctrines”; because Plaintiffs
“lack standing to bring their claims”; and because the Attorney General “is not a proper
party and should be dismissed” under Ex parte Young, 209 U.S. 123 (1908). Mot., at 2.
Plaintiffs dispute each point.
4

Standard of Decision
Defendants’ argument that the Attorney General is not a proper party under Ex
parte Young arises under Federal Rule of Civil Procedure Rule 12(b)(6). See Blagojevich
v. Gates, 519 F.3d 370, 371 (7th Cir. 2008) (citing United States v. Cook County, 167
F.3d 381 (7th Cir. 1999)). “A motion to dismiss under Rule 12(b)(6) is designed to test
the complaint’s legal sufficiency.” Blintz v. Monsanto Co., 317 F. Supp. 3d 1042, 1046
(W.D. Wis. 2018). A complaint is legally sufficient if it contains a short and plain
statement, Fed. R. Civ. P. 8(a), that gives the defendants “‘fair notice of what the claim is
and the grounds upon which it rests[,]’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(ellipsis omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and
pleads facts “sufficient . . . to ‘state a claim to relief that is plausible on its face’” by
“permit[ting] the court to infer more than the mere possibility” of actionable misconduct
by the defendants. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (quoting Twombly, 550
U.S. at 570). “The court must ‘take all factual allegations as true and draw all reasonable
inferences in favor of the plaintiffs.’” Blintz, 317 F. Supp. 3d at 1047 (alterations omitted)
(quoting Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008)).
Defendants’ challenge to Plaintiffs’ standing attacks the court’s subject-matter
jurisdiction and thus arises under Federal Rule of Civil Procedure 12(b)(1). See Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443–45 (7th Cir. 2009). As under
Rule 12(b)(6), we take as true the complaint’s factual allegations, id. at 443, except that a
“factual” (as opposed to “facial”) jurisdictional challenge permits, indeed obligates, the
court to look past the pleadings into the truth of the matter, id. at 444, without converting
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the motion into one for summary judgment. Fed. R. Civ. P. 12(d); Carter v. Doyle, 95 F.
Supp. 2d 851, 855 (N.D. Ill. 2000) (citations omitted). But Defendants’ challenge to
Plaintiffs’ standing here is largely if not entirely facial.
Defendants’ arguments for abstention or deference “do[] not fit neatly into Rule
12(b)(1) or Rule 12(b)(6).” Bolton v. Bryant, 71 F. Supp. 3d 802, 808 n.2 (N.D. Ill. 2014)
(citing Carter, 95 F. Supp. 2d at 855 n.8 (citing cases applying Rule 12(b)(12), Rule
12(b)(6), and both)). Such arguments do not deny the existence of subject-matter
jurisdiction; they presuppose it. Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir. 1983).
On the other hand, as with subject-matter jurisdiction, the interests to be safeguarded by
abstaining or deferring are not the parties’ but the court’s. Id.
More importantly, as noted above, only Rule 12(b)(1) permits the court in
appropriate circumstances to look past the complaint. Where as here the party invoking
abstention moves to dismiss rather than to stay (almost always wrongly, as explained
below), application of Rule 12(b)(6) is highly likely to prevent adjudication of the issue
on the merits, for it is highly unlikely that the predicates for abstention will have been
pleaded in the complaint. Accordingly, in keeping with our general preference for
functional approaches, Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651
F.3d 722, 727 (7th Cir. 2011), we apply Rule 12(b)(1) here, as we have in the past. E.g.,
Hoffman v. Jacobi, No. 4:14-cv-00012-SEB-TAB, 2014 WL 5323952, at *2 (S.D. Ind.
Oct. 17, 2014) (Barker, J).
I. PULLMAN ABSTENTION AND COLORADO RIVER DEFERENCE
“[F]ederal courts have a ‘virtually unflagging obligation to exercise the
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jurisdiction given them.’” Hammer v. U.S. Dep’t of Health & Human Servs., 905 F.3d
517, 530 (7th Cir. 2018) (ellipsis omitted) (quoting Colo. River Water Conserv. Dist. v.
United States, 424 U.S. 800, 817 (1976)). “There are, however, ‘exceptional
circumstances where denying a federal forum would clearly serve an important
countervailing interest[.]’” Id. (nested quotation marks omitted) (quoting Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 716 (1996)). Such exceptional circumstances may arise
under the cases of Colorado River or Railroad Commission v. Pullman Company, 312
U.S. 496 (1941).
Under Pullman, a federal court will abstain from exercising its jurisdiction “‘only
when (1) there is substantial uncertainty as to the meaning of the state law and (2) there
exists a reasonable probability that [a] state court’s clarification of state law might
obviate the need for a federal constitutional ruling.’” Wis. Right to Life State Political
Action Comm. v. Barland, 664 F.3d 139, 150 (7th Cir. 2011) (quoting Int’l Coll. of
Surgeons v. City of Chicago, 153 F.3d 356, 365 (7th Cir. 1998)). Under Colorado River,
a federal court will defer to concurrent proceedings in state court if the proceedings are
“parallel” and if a “careful[] weighing [of] ten non-exclusive factors” shows deference is
warranted. Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th Cir. 2014)
(citing AAR Int’l Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001)).
Defendants urge us to abstain under Pullman from exercising our jurisdiction over
this case in light of the administrative proceedings on WWHA’s license application, or in
the alternative, to defer to those proceedings under Colorado River.

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As an initial matter, even if their application were merited, neither Pullman nor
Colorado River would entitle Defendants to the relief they seek here, that is, dismissal of
the entire complaint with prejudice. Mot., at 2. If Pullman or Colorado River apply, they
apply by hypothesis only to so much of Plaintiffs’ complaint as overlaps with the
administrative proceedings before ISDH. But those proceedings, at most, relate only to
the “reputable and responsible character” provision of Indiana’s abortion-clinic licensing
regulations. 410 Ind. Admin. Code 26-2-5(1). That requirement is but one target, Compl.
¶ 203, of the sweeping challenges Plaintiffs’ complaint advances.
Further, “a court abstaining under Pullman does not dismiss the action; it retains
jurisdiction of the federal claim pending the state court’s decision on the state law issue.”
Moses v. Kenosha County, 826 F.2d 708, 710 (7th Cir. 1987). Similarly, under Colorado
River, “a federal court may stay or dismiss . . . .” Freed, 756 F.3d at 1018. See Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 28 n.37 (1983). “[The
Seventh Circuit], however, has consistently held that the proper procedure is to stay. . . .
[A] stay, not a dismissal without prejudice, [not to mention a dismissal with prejudice,] is
the appropriate procedural mechanism for a district court to employ . . . under the
Colorado River doctrine.” Lumen Constr., Inc. v. Brant Constr. Co., 780 F.2d 691, 698
(7th Cir. 1985).
Persisting in their demand for dismissal under Pullman, Defendants in reply raise
a belated argument for a stay under Colorado River, but “[r]eply briefs are for replying,
not for raising . . . arguments that could have been advanced in the opening brief.”
Autotech Techs. Ltd. P’ship v. Automationdirect.com, 249 F.R.D. 530, 536 (N.D. Ill.
8

2008) (citations omitted). Defendants’ failure to show their entitlement to the relief they
seek independently justifies denial of their motion.
That failure notwithstanding, neither Pullman nor Colorado River applies on the
merits. As for Pullman, its second element is not satisfied because there is no reasonable
probability that a state court ruling will obviate the need for a federal constitutional
ruling. See Wis. Right to Life, 664 F.3d at 150. “The main purpose of the Pullman
doctrine is to avoid, if possible, declaring a state statute unconstitutional, by giving the
state courts a chance to interpret it narrowly.” Mazanec v. N. Judson-San Pierre Sch.
Corp., 763 F.2d 845, 847 (7th Cir. 1985). As a general matter, facial vagueness
challenges of the type Plaintiffs raise here, Compl. ¶¶ 203–05, 1 are poor candidates for
such treatment because there is little a state court’s interpretation can do to save the
challenged statute. “If a statute is attacked as being excessively vague on its face,
meaning that it is susceptible of being misapplied in a variety of possible situations, the
state court is unlikely to be able to give it an interpretation that will prevent any of these
possible misapplications, so probably abstention would not enable the constitutional issue
to be avoided.” Waldron v. McAtee, 723 F.2d 1348, 1354–55 (7th Cir. 1983) (citing
Baggett v. Bullit, 377 U.S. 360, 378 (1964)). Also Wynn v. Scott, 449 F. Supp. 1302, 1313
(N.D. Ill. 1978) (three-judge panel op.) (“[A]bstention is required if the statute is

1

We understand Paragraph 203 to raise a facial challenge to the “reputable and responsible
character” requirement, notwithstanding the “As applied by [ISDH]” incipit, because Plaintiffs
appear to seek its general invalidation, see Six Star Holdings, LLC v. City of Milwaukee, 821
F.3d 795, 803 (7th Cir. 2016), and because as-applied challenges attack the application of a
statute to specific persons or specific conduct, see Ctr. for Individ. Freedom v. Madigan, 697
F.3d 464, 475 (7th Cir. 2012), which Paragraph 203 does not.
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ambiguous in that it is capable of two or more meanings. If it is vague in that it simply
has no precise meaning, then the federal court need not forbear.”).
Moreover, no part of ISDH’s final order denying WWHA’s license application
rested on the challenged “reputable and responsible character” requirement. See Dkt. 67
Ex. 1, at 9. Thus, even if a petition for judicial review has been timely filed by WWHA
(as noted above, we have found no record of one), any decision on such petition is highly
unlikely to construe that requirement, narrowly or otherwise. And if the requirement were
to be addressed at all, it is highly likely to be addressed only to the extent of determining,
first, whether inaccuracies in documentation supporting a license application are
sufficient to sustain a finding of no reputable and responsible character, and, second,
whether WWHA actually submitted inaccurate documentation—which depends in turn
on the meaning of “affiliates” as a matter of state corporations law. However these
questions may be answered, their answers will in no wise obviate the constitutional
questions presented by Plaintiffs’ lawsuit.
As for Colorado River, assuming it may apply to administrative proceedings, its
threshold requirement of parallelism is not met. “For a state court case to be parallel to a
federal court case . . . there must be ‘a substantial likelihood that the state litigation will
dispose of all claims presented in the federal case.’” Freed, 756 F.3d at 1018 (quoting
Lumen, 780 F.2d at 695). Put differently, “[s]uits are parallel if ‘substantially the same
parties are litigating substantially the same issues simultaneously in two fora.’” AAR Int’l,
250 F.3d at 518 (quoting Schneider Nat’l Carriers, Inc. v. Carr, 903 F.2d 1154, 1156 (7th
Cir. 1990)). It is a “‘serious abuse of discretion’ to abstain under Colorado River if ‘there
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is any doubt’ ‘that the parallel litigation will be an adequate vehicle for the complete
resolution of the issues between the parties,’” id. at 520 (quoting Moses H. Cone, 460
U.S. at 28), and “any doubt regarding the parallel nature of the [other] suit should be
resolved in favor of exercising jurisdiction[.]” Id. (citing Allen v. Bd. of Educ., 436 F.3d
401, 403 (10th Cir. 1995)).
As already noted, it is not clear on this record that the denial of WWHA’s license
application is still being litigated in the state forum. There may therefore be no
concurrent state-federal litigation at all. Even if there is, the two actions are not parallel
because substantially the same issues are not being litigated in the two fora. As explained
above, the issue in the administrative case is whether WWHA submitted inaccurate
documentation in support of its license application. See Dkt. 43 Ex. 2 (WWHA’s petition
for administrative review). That issue is no part of the federal lawsuit before us now.
As for weighing Colorado River’s “ten non-exclusive factors,” Freed, 756 F.3d at
1018, Defendants have made no attempt to do so (indeed, they go so far as to deny that
there are ten, citing only two in their opening brief and insisting in their reply brief that
the proper number is four). We will not undertake that multifactor slog in their stead. In
any event, the state and federal actions are not parallel, as we have explained, and “[i]f
the actions are not parallel, . . . the court need not address the second part of the
analysis.” Id. (citing Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1287
(7th Cir. 1988)).
II. ARTICLE III STANDING
Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’
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and ‘Controversies[.]’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992) (quoting
U.S. Const. art. III, § 2). One of the principal mechanisms for identifying justiciable cases
or controversies is the doctrine of standing. Id. at 560. The “irreducible constitutional
minimum” of standing is injury-in-fact traceable to the conduct complained of and
redressable by a favorable ruling from a federal court. Id.
“Injury in fact” is “an invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id.
(quotation marks and citations omitted). Traceability requires that the injury complained
of be “fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Id. (quotation marks,
ellipses, alterations, and citation omitted). Redressability requires that it be “likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Id. at 561 (quotation marks and citation omitted). The burden of proving these three
elements rests with the litigant invoking federal jurisdiction by the same quantum of
proof as is required generally at each stage of the litigation. Id.
Defendants contend that Plaintiffs have not alleged injury-in-fact redressable by a
favorable ruling. “‘Where at least one plaintiff has standing, jurisdiction is secure and the
court will adjudicate the case whether the additional plaintiffs have standing or not.’”
Korte v. Sebelius, 735 F.3d 654, n.8 (7th Cir. 2013) (alteration omitted) (quoting Ezell v.
City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011)). We therefore restrict our
discussion to Glazer’s standing. See Ezell, 651 F.3d at 696 n.7 (“The district court’s

12

emphasis on the organizational plaintiffs’ standing is puzzling. As we have noted, it’s
clear the individual plaintiffs have standing.”).
As the Seventh Circuit has explained,
The cases are legion that allow an abortion provider, such as
Planned Parenthood of Wisconsin or AMS [or Glazer here],
to sue to enjoin as violations of federal law (hence litigable
under 42 U.S.C. § 1983) state laws that restrict abortion.
These cases emphasize not the harm to the abortion clinic of
making abortions very difficult to obtain legally, though that
might be an alternative ground for recognizing a clinic’s
standing, but rather “the confidential nature of the physicianpatient relationship and the difficulty for patients of directly
vindicating their rights without compromising their privacy,”
as a result of which “the Supreme Court has entertained both
broad facial challenges and pre-enforcement as-applied
challenges to abortion laws brought by physicians [such as
Glazer] on behalf of their patients.”
Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 910 (2015) (quoting Isaacson
v. Horne, 716 F.3d 1213, 1221 (9th Cir. 2013)).
Defendants contend that Glazer’s “patients do not exist because he does not allege
that he provides abortions in Indiana at this time.” Br. Supp. 9. That is simply wrong.
“Jeffrey Glazer, M.D., is a board-certified obstetrician-gynecologist licensed to practice
medicine by the State of Indiana. Dr. Glazer is an abortion provider. . . . Dr. Glazer sues
on behalf of himself and his patients.” Compl. ¶ 23. If this leaves any room for doubt,
obligating us to look into the truth of the matter, such doubt is swiftly dispelled: “I
currently provide both surgical and medication abortions to patients at the Indianapolis
Clinic for Women . . . in Indianapolis, Indiana. . . . On average, I provide abortions to
approximately twenty-five patients per week at the Indianapolis Clinic for Women.”

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Glazer Decl. (Dkt. 43 Ex. 4) ¶¶ 5–6. As to the challenged licensing regulations,
specifically, the complaint adequately alleges that new abortion clinics, which would
operate in Indiana but for the challenged licensing regulations, would reduce the severity
of the burdens on obtaining abortions for Glazer’s patients and allow Glazer to expand
his professional practice. Compl. ¶¶ 69, 70, 82–89, 187–88, 190–91, 194–95. Glazer’s
and his patients’ injuries would be addressed by a ruling invalidating and enjoining the
challenged statutes. Glazer thus clearly has standing to bring this lawsuit.
III. EX PARTE YOUNG
The Attorney General is sued here in his official capacity, which is equivalent to a
suit against the state of Indiana, the entity of which the Attorney General is an agent. See
Sow v. Fortville Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011) (citing Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985)). An unconsenting state is immune from suit in
federal court except, as relevant here, under the doctrine articulated by Ex parte Young,
209 U.S. 123 (1908). Council 31 of the Am. Fed’n of State, Cty., & Mun. Emps. v. Quinn,
680 F.3d 875, 881–82 (7th Cir. 2012).
“The Ex parte Young doctrine ‘allows private parties to sue individual state
officials for prospective relief to enjoin ongoing violations of federal law.’” Id. at 882
(quoting MCI Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 337 (7th Cir. 2000)).
But the state official sued must have “‘some connection with the enforcement’ of an
allegedly unconstitutional statute for the purpose of enjoining that enforcement.” Doe v.
Holcomb, 883 F.3d 971, 975 (quoting Ex parte Young, 209 U.S. at 157). Otherwise, he is
immune. See id. And the connection must be to enforcement specifically, not merely
14

defense of constitutionality. Id. at 976–77 (citing Mendez v. Heller, 530 F.2d 457, 460
(2d Cir. 1976)).
In Doe, the Seventh Circuit held that the Attorney General did not have a
connection with the enforcement of Indiana’s name-change statute sufficient to bring a
lawsuit challenging the statute on constitutional grounds within Ex parte Young. He
“ha[d] not threatened to do anything, and [could] not do anything, to prosecute a
violation” of the statute. Id. at 977.
The Attorney General, with limited exceptions, see Ind. Code §§ 4-6-2-1.1, 12-1523-6(d), “cannot initiate prosecutions; instead, he may only join them when he sees fit.”
Doe, 883 F.3d at 977 (citing Ind. Code § 4-6-1-6). The Attorney General also “shall
consult with and advise the several prosecuting attorneys of the state in relation to the
duties of their office[.]” Ind. Code § 4-6-1-6. Finally, the Attorney General “shall
represent the state in all criminal cases in the Supreme Court[.]” Id. § 4-6-2-1(a). “With
the assumption of criminal jurisdiction in 1972 by the Court of Appeals, the same
principles heretofore applicable to the Supreme Court are equally binding upon the Court
of Appeals . . . and the Attorney General.” State v. Market, 302 N.E.2d 528, 531 (Ind. Ct.
App. 1973). Thus, today, “[t]he Attorney General has the exclusive right and duty to
represent the State in all criminal appeals.” State v. Harper, 8 N.E.3d 694, 698 n.4 (Ind.
2014) (citing Ind. Code § 4-6-2-1; Market, 302 N.E.2d at 534)).
The name-change statute challenged in Doe carried “no criminal penalties” for its
violation. Doe, 883 F.3d at 977. Thus, no matter whether the Attorney General could
initiate prosecutions, in Doe there was simply nothing to prosecute. The Doe court
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conceded that “the Attorney General could assist a local prosecuting attorney in a perjury
prosecution” if a petitioner were to perjure himself on a name-change petition, but it
found “that connection . . . too attenuated” to bring the plaintiff’s claim within Ex parte
Young, “especially considering that the Attorney General could not initiate the
prosecution himself.” Id.
We do not read Doe to hold that, because the Attorney General cannot initiate
criminal prosecutions, the Attorney General is never a proper party to a lawsuit which, as
here, see Compl. ¶¶ 83, 102, 115, 131, 149, 152–58, challenges the constitutionality of
criminally enforceable statutes. If that were so, the Seventh Circuit’s discussion would
have begun and ended there. Rather, we read Doe to hold that possible participation in a
collateral criminal prosecution is insufficient to establish a connection with the
enforcement of the underlying civil regulatory statute. Many such statutes require
submission to public authorities of statements under penalty of perjury. See, e.g., Ind.
Code §§ 3-11-4-5.1(b)(1) (application for absentee ballot); 7.1-3-1-27(b) (affidavit of
compliance with alcohol retailer regulations); 22-15-5-8(a)(6) (application for initial
elevator contractor license); 31-19-5-21(c)(2) (application for copy of putative father’s
ISDH registration form). If the possibility of a collateral perjury prosecution were a
sufficient connection to the enforcement of such statutes, it would indeed “extend Ex
parte Young past its limits.” Doe, 883 F.3d at 977.
Here, by contrast, the challenged statutes are directly criminally enforceable. And
the Attorney General is intimately bound up with criminal enforcement at every stage
after the initial charges are laid—at his option at trial, and by statutory command on
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appeal. We particularly emphasize the Attorney General’s complete and exclusive control
over the criminal appeals process, a point that was not raised or considered in Doe
(unsurprisingly, since, as noted, there was nothing to prosecute there). It seems incredible
and unsustainable to hold that the state officer responsible for defending criminal
convictions secured under a statute does not have “‘some connection’” with the statute’s
enforcement. Doe, 883 F.3d at 975 (quoting Ex parte Young, 209 U.S. at 157).
Thus, it is not the case that the Attorney General “would have no power to carry
out” an injunction invalidating the challenged statutes. Br. Supp. 12–13. To the contrary,
the Attorney General could “consult with and advise” local prosecuting attorneys not to
bring a prosecution under the statutes, Ind. Code § 4-6-1-6 (another power of the
Attorney General not raised or considered in Doe); he could intervene in the trial of the
case, if a prosecution were brought, id.; and he could confess error before the
intermediate and high courts on appeal from a conviction. Id. § 4-6-2-1(a). That is
sufficient to bring Plaintiffs’ claims against him within Ex parte Young.
Conclusion and Order
For the reasons given above:
Defendants’ motion to dismiss, Dkt. 37, is DENIED.
IT IS SO ORDERED.

Date:

3/28/2019

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Amanda Lauren Allen
LAWYERING PROJECT
[e-mail]
Christopher Michael Anderson
INDIANA ATTORNEY GENERAL
[e-mail]
David Patrick Brown
LAWYERING PROJECT
[e-mail]
Paul M. Eckles
ATTORNEY AT LAW
[e-mail]
Thomas M. Fisher
INDIANA ATTORNEY GENERAL
[e-mail]
Bradley H. Honigman
ATTORNEY AT LAW
[e-mail]
Kathrine D. Jack
LAW OFFICE OF KATHRINE JACK
[e-mail]
Diana Lynn Moers Davis
INDIANA ATTORNEY GENERAL
[e-mail]
Julia Catherine Payne
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Michael M. Powell
ATTORNEY AT LAW
[e-mail]

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Juanluis Rodriguez
LAWYERING PROJECT
[e-mail]
Rupali Sharma
LAWYERING PROJECT
[e-mail]
Erin A. Simmons
ATTORNEY AT LAW
[e-mail]
Dipti Singh
LAWYERING PROJECT
[e-mail]
Stephanie Toti
LAWYERING PROJECT
[e-mail]

19