Indiana House - brief in support re [29] motion to intervene , filed by interven...

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NIKI DASILVA, SAMANTHA
LOZANO, GABRIELLE MCLEMORE
and MARA REARDON,
Plaintiffs,
v.
STATE OF INDIANA and CURTIS T.
HILL, JR., individually and in his capacity
as the Indiana Attorney General,
Defendants.
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Case No.: 1:19-cv-2453-JRS-DLP
THE INDIANA HOUSE OF REPRESENTATIVES’
BRIEF IN SUPPORT OF MOTION TO INTERVENE
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24
By naming the State of Indiana, but not the Indiana House of Representatives, as a
Defendant, Plaintiff Samantha Lozano seeks to hold her employer, the Indiana House, liable under
Title VII for sexual harassment by Attorney General Curtis Hill while at the same time deny the
House the ability to defend the actions it took to prevent acts of alleged harassment. Further, Ms.
Lozano seeks an order requiring the House to change its policies without giving the House an
opportunity to defend its current policies.
Naming the State as a whole, but not the House, disregards established Seventh Circuit
precedent defining the “employer” (the proper defendant in a Title VII suit) in claims against state
entities as the particular part of the state apparatus with actual hiring and firing responsibility.
More fundamentally, naming the State as a whole, but not the House, disregards constitutional
separation of powers, making it possible for Ms. Lozano to argue legislative leaders should have
done more by inserting themselves into the affairs of the executive branch. Bound by the Indiana
Case 1:19-cv-02453-JRS-DLP Document 30 Filed 07/22/19 Page 1 of 18 PageID #: 260

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Constitution, legislative leaders acted appropriately – including calling for resignation of an
elected executive – within the limitations of their own, separate legislative branch of government.
The House should be permitted to intervene to defend its policies and actions as to Ms. Lozano’s
Title VII claims.
For these reasons, as outlined more fully below, the Court should grant the House leave to
intervene as of right, or in the alternative, intervene by permission pursuant to Rule of Civil
Procedure 24.
I. FACTUAL BACKGROUND
Ms. Lozano alleges she was subjected to sexual harassment and retaliation in violation of
Title VII, § 1983, and Indiana state law during an unofficial, unsanctioned post-sine die 2018
gathering, subsequent investigation, and public and private responses by various elected state
officials.
Ms. Lozano is currently a Legislative Assistant to the Indiana House of Representatives
Democratic Caucus since January 2018, as well as the Executive Assistant to the Indiana
Democratic Caucus Chair since December 2018. (ECF No. 1 at ¶ 30.) Ms. Lozano alleges Attorney
General Hill called her “really hot,” grabbed her around the waist, and pulled her close to him
during an unofficial, unsanctioned post-sine die 2018 gathering at AJ’s Lounge. (ECF No. 1 at ¶¶
64-66.)
Legislative leadership first learned of Attorney General Hill’s alleged conduct
approximately two months later. (See ECF No. 1, ¶ 92.) The House immediately initiated an
internal investigation, including engaging outside counsel to review each chamber’s respective
investigation and response to the complaints about Attorney General Hill. (See ECF No. 1, ¶¶ 91-
93, 96-97.) The investigation included interviewing Ms. Lozano. (See ECF No. 1, ¶ 93.)

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Notwithstanding the outcome of the investigation (which concluded no sexual harassment
rising to the level of a violation of Title VII had occurred), President Pro Tempore of the Senate
David Long and Speaker of the House Brian Bosma arranged to speak with Attorney General Hill
to inform him of the allegations and warn him such conduct would not be tolerated. Senator Long
and Speaker Bosma spoke with Attorney General Hill via telephone on June 29, 2018. During that
call, the legislators informed Attorney General Hill his alleged behavior was unacceptable and
would not be tolerated. Senator Long and Speaker Bosma admonished Attorney General Hill to
discontinue any contact with legislative staff members, other than inevitable casual interactions.
They specifically instructed Attorney General Hill not to contact any members of the legislature
or staff concerning this matter and that any attempts to do so would be viewed by Senator Long
and Speaker Bosma as retaliation. During a subsequent meeting with Attorney General Hill on
July 2, 2018, Senator Long and Speaker Bosma reiterated their disapproval of Attorney General
Hill’s alleged actions.
On approximately July 2, 2018, Speaker Bosma, House Minority Leader Terry Goodin,
Chief Counsel Jill Carnell, and Chief of Staff Tyler Campbell met with Ms. Lozano to provide her
with an update of actions that had been taken since learning of the allegations against Attorney
General Hill. Ms. Lozano was advised of the engagement of outside counsel, the subsequent
memorandum, and outside counsel’s conclusion the investigation had been conducted properly.
She was also advised of the follow-up conversations between legislative leaders and Attorney
General Hill, wherein legislative leadership warned Attorney General Hill to refrain from
interacting with or retaliating against General Assembly employees. Speaker Bosma and Leader
Goodin thanked Ms. Lozano for reporting her concerns and instructed her to report any future

4
concerns of harassment or retaliation immediately. Ms. Lozano indicated she was satisfied with
the outcome and appreciated how the situation was handled.
In a statement released on July 5, 2018, Speaker Bosma called for Attorney General Hill’s
resignation and requested the Office of the Indiana Inspector General open an investigation
into the allegations about Attorney General Hill. Thereafter, the Office of the Indiana Inspector
General conducted an investigation. (ECF No. 1, ¶ 142.)
Ms. Lozano also alleges state officials and staff have since harassed and retaliated against
them for reporting their allegations. (ECF No. 1, ¶¶ 104, 211-218.) With the revelation of these
allegations in the filing of this lawsuit, House leadership investigated these previously undisclosed
concerns as well.
On October 23, 2018, Ms. Lozano filed Charges of Discrimination with the EEOC
regarding events at an unofficial, unsanctioned post-sine die 2018 gathering and subsequent
actions by Attorney General Hill, allegedly in retaliation. Although she named the State of Indiana
as a whole as her employer, the House timely responded to her Charge, explaining it was the proper
party because it was her employer under Title VII. On May 14, 2019, the EEOC terminated its
investigation and issued Ms. Lozano a Notice of Right to Sue. (ECF No. 1, ¶ 16.)
On June 18, 2019, Plaintiffs filed this lawsuit against the State of Indiana and Curtis T.
Hill, Jr., in his individual and official capacities. Plaintiffs assert the following claims:
I – Title VII, Sexual Harassment against the State of Indiana
II – Title VII, Retaliation against the State of Indiana
III – § 1983, Sexual Harassment and Discrimination in violation of the Equal Protection
Clause against Curtis T. Hill, Jr., Individually
IV – § 1983, Retaliation in violation of the Equal Protection Clause against Curtis T.
Hill, Jr., Individually
V – § 1983, Substantive Due Process Clause against Curtis T. Hill, Jr., Individually

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VI – § 1983, Sexual Harassment and Discrimination in violation of the Equal Protection
Clause against the State of Indiana
VII – § 1983, Retaliation against the State of Indiana
VIII thru XI – Battery, Sexual Battery, Defamation, and False Light Invasion of Privacy
against Curtis T. Hill, Jr., Individually
Plaintiffs seek judgment in their favor, an order declaring Defendants’ actions
unconstitutional, a permanent injunction requiring the State of Indiana to adopt “appropriate
policies” related to sexual harassment, retaliation, and protection of individuals’ constitutional
rights, compensatory and punitive damages, costs, and fees. (ECF No. 1, “Wherefore” clause at p.
37.)
On June 18, 2019, the Attorney General Hill’s office, by and through three deputy attorneys
general, filed appearances on behalf of all Defendants, including Curtis T. Hill, Jr., in his individual
and official capacities. (ECF Nos. 5-7.) On July 11, 2019, the deputy attorneys general filed
amended appearances, clarifying they represented the State of Indiana and Curtis T. Hill, Jr., in his
official capacity only. (ECF Nos. 12-15.) Private counsel has since appeared for Curtis T. Hill, Jr.,
in his personal capacity. (ECF Nos. 18, 21-24.)
Also on July 11, 2019, the State of Indiana and Hill (in his official capacity) moved to
dismiss certain claims against them. In pertinent part, the State claims the Title VII claims against
the State must be dismissed because Plaintiffs DaSilva, McLemore, and Lozano (the “staff
Plaintiffs”) are not “employees” entitled to the protections of Title VII. Rather, the State claims,
the staff Plaintiffs are excluded from Title VII and must proceed separately under the
Governmental Employee Rights’ Act of 1991 (“GERA”). (ECF No. 17 at 8-13.)
II. ARGUMENT
In spite of the House’s response to Ms. Lozano’s Charge explaining the House is the proper
defendant to her Title VII claims because it was her employer, Ms. Lozano has filed this lawsuit

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against the State of Indiana, not the House, seeking compensatory damages and injunctive and
equitable relief under Title VII. Yet, the House is a proper defendant in this matter, because the
conduct of the House, its elected officials, its investigation(s) and its policies are key elements of
Ms. Lozano’s claims. For example:
1. Plaintiffs claim the House’s policies and procedures are “deficient.” (ECF No. 1,
¶¶ 181-198.) Further, Plaintiffs seek an order requiring the institution of new
policies. (Id., “Wherefore” clause at p. 37.)
2. Plaintiffs suggest the House’s investigation was insufficient. (Id., ¶¶ 93-95.)
3. Plaintiffs suggest the House’s response was inadequate. (Id., ¶¶ 102, 124, 141.)
4. Plaintiffs suggest the House and staff have subsequently harassed or retaliated
against them for reporting their claims. (Id., ¶¶ 125-130, 135, 137-138.)
The House is the proper defendant to the Title VII claims, as it was Ms. Lozano’s employer.
The House plainly has an interest in defending its actions and policies as alleged in this lawsuit,
and disposition of this action will include deciding whether its actions and policies were and are
proper. Yet, the House has not been named as a Defendant in this suit, and the current parties (the
State of Indiana and Curtis Hill) are not adequate representatives of the House’s interests. In the
alternative, the House should be permitted to intervene because its defenses share with the main
action a common question of law or fact. For these reasons, the Court should grant the House leave
to intervene.
A. The House is a proper Title VII Defendant in this matter because it is
Plaintiff Samantha Lozano’s employer as a matter of law.
With respect to Ms. Lozano’s Title VII claims, the House is a proper defendant as a matter
of law because it is Ms. Lozano’s employer.
Title VII actions must be brought against the “employer,” a term defined in Title VII.

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Hearne v. Bd. of Educ., 185 F.3d 770, 777 (7th Cir. 1999). Recognizing the separation of powers,
the Seventh Circuit has held that in Title VII suits against state entities, the term “employer”
“mean[s] the particular agency or part of the state apparatus that has actual hiring and firing
responsibility.” Id.; see also Holman v. State of Indiana, 211 F.3d 399, 401 n.1 (7th
Cir. 2000)
(noting INDOT employees could not maintain Title VII sexual harassment and retaliation claims
against the State of Indiana because INDOT, and not the State of Indiana generally, had actual
hiring and firing responsibility as to the INDOT employees). Thus, in Hearne, the Seventh Circuit
held the “State of Illinois as a whole” was not a proper Title VII defendant because the state entity
with hiring and firing responsibility was the local school district. 185 F.3d at 777.
Here, as a separate branch of government and chamber of the legislature, the House has
hiring and firing responsibility over Ms. Lozano, and it is the proper defendant in a Title VII action
by her. IND. CONST. art. 3, § 1. Pursuant to Article 4 of the Indiana Constitution, the legislative
authority of the state is vested in the General Assembly, which is comprised of the Senate and the
House of Representatives. IND. CONST. art. 4, § 1. Each chamber is given “all powers necessary”
for a legislature of a free and independent State. Id. at § 16; see also Common Cause v. State, 691
N.E.2d 1358, 1360 (Ind. Ct. App. 1998) (“The Indiana Constitution expressly grants the General
Assembly the power to regulate its own operations.”). Accordingly, “the legislature has the ability
to appoint officers and employees whose duties are an incident to its legislative function.” Id.
(internal quotation omitted); see also Indiana House of Representatives Personnel Handbook
(“Most personnel issues (hiring, promotions, discipline, etc.) are handled within each caucus by
the appropriate Chief of Staff. However, the Speaker retains the ultimate authority over hiring
decisions, should he or she wish to exercise it.”)

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Under this framework, Ms. Lozano is employed by the House as a Legislative Assistant to
the House of Representatives Democratic Caucus. (ECF No. 1, ¶¶ 29-30.) Although the job duties
of Legislative Assistants vary, they typically involve providing administrative support to the
legislators to whom the Legislative Assistant is assigned, including facilitating communications
between constituents and their representatives, researching legislative issues, attending legislative
sessions and committee hearings, preparing reports and memoranda on proposed and enacted
legislation, and assisting with other daily tasks to support the legislative functions of the assigned
legislators. In addition to serving as a Legislative Assistant, Ms. Lozano was promoted to the
position of Executive Assistant for the House of Representatives Democratic Caucus Chair in
December 2018.
As shown above, Ms. Lozano’s employment encompasses duties incident to the legislative
function, and the House is her employer. As a result, only the House is a proper defendant to Ms.
Lozano’s Title VII action, and it should be permitted to intervene to defend its interests.
B. The House should be granted leave to intervene as of right under Rule 24(a).
The Court should grant the House’s motion for leave to intervene as of right. Rule
24(a)(2) of the Federal Rules of Civil Procedure states, in pertinent part:
On timely motion, the court must permit anyone to intervene
who claims an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant’s
ability to protect its interest, unless existing parties adequately
represent that interest.
To qualify for intervention under Rule 24(a)(2), an intervenor must show (1) timely application
for leave to intervene; (2) an interest relating to the property or transaction which is the subject of
the action; (3) disposition of the action may as a practical matter impair or impede the intervenor’s
ability to protect that interest; and (4) existing parties are not adequate representatives of the

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intervenor’s interests. Lopez-Aguilar v. Marion Cty. Sheriff’s Dep’t, 924 F.3d 375, 391 (7th Cir.
2019).1
“Preclusion is not a condition of intervention under Rule 24(a) and analysis under that rule
also includes consideration of the practical effect of denying intervention.” City of Chicago v.
FEMA, 660 F.3d 980, 987 (7th Cir. 2011). In deciding whether to permit intervention, the court
accepts as true all non-conclusory allegations of the intervenor’s motion. Reich v. ABC/York-Estes
Corp.¸ 64 F.3d 316, 321 (7th Cir. 1995).
First, the House’s motion to intervene is timely. The timeliness of a motion to intervene is
determined from “all the circumstances,” including four factors: (1) the length of time the
intervenor knew or should have known of his interest in the case; (2) the prejudice caused to the
original parties by the delay; (3) the prejudice to the intervenor if the motion is denied; and (4) any
other unusual circumstances.” Lopez-Aguilar, 924 F.3d 375. Here, the House seeks to intervene
just 34 days after this matter was filed, before the named defendants have even answered and
before any discovery or case management deadlines have been set. There is no prejudice to the
original parties by the delay, but the prejudice from denying the House’s motion is great, as
explained more fully below. Moreover, Plaintiffs and Defendants were on notice the House
intended to defend Plaintiffs’ claims, as the House responded to Ms. Lozano’s Charge at the
1
An intervenor need not demonstrate Article III standing, so long as it does not expand the relief requested or pursue
an appeal in the absence of an existing party. Va. House of Delegates v. Bethune-Hill, 2019 U.S. Lexis 4174, *8 (June
17, 2019); accord City of Chicago v. FEMA, 660 F.3d 980, 983 (7th Cir. 2011). Here, the House seeks only to defend
the Title VII claims that should have been brought against it. However, to avoid waiving any argument about standing
at later stages of the case, the House notes it has independent Article III standing. Were Ms. Lozano to prevail and
recover monetary and injunctive relief on her Title VII claims, the House would suffer injury-in-fact because it would
be responsible for her compensatory damage award. See City of Chicago, 660 F.3d at 984 (intervenors’ “ability to
retain almost $6 million may depend on whether the court sides with FEMA”). Further, the injunctive relief requested
includes invalidating the House’s policies and requiring the implementation of new policies. See Lopez-Aguilar v.
Marion Cty. Sheriff’s Dep’t, 924 F.3d 375, 391 (7th Cir. 2019) (State of Indiana had standing to appeal Stipulated
Judgment negating its interpretation and application of law). Ms. Lozano’s claims in this Court will cause this injury-
in-fact, and the House’s participation in this suit will afford it the opportunity to defend its interests and redress this
injury. Therefore, the House has Article III standing. See also City of Chicago, 660 F.3d at 985 (noting “so little is
required for Article III standing”); Reich v. ABC/York-Estes Corp., 64 F.3d 316, 323 (7th Cir. 1995) (intervention
permitted because suit would determine, as a matter of law, the contractual nature of intervenors’ relationship with
defendant).

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administrative stage. The House’s motion is timely and satisfies the first prong of the Rule 24(a)(2)
analysis.
Second, the House has a sufficient interest in the litigation. The applicant’s interest must
be “direct, significant, and legally protectable,” but at the same time the Supreme Court has
encouraged “liberality in the definition of an interest.” Lopez-Aguilar, 924 F.3d at 391-92.
Ultimately, analysis of the applicant’s interest is highly fact-specific, “making comparison to other
cases of limited value.” Id. at 392. The focus is on the issues to be resolved by the litigation and
whether the intervenor has an interest in those issues. Reich, 64 F.3d at 322 (“the resolution of this
issue will define, as a matter of law, the contractual nature of the relationship between the
[intervenors] and ABC”).
The House indisputably has an interest in the subject matter of this action, as it is the proper
defendant to Title VII claims. Hearne v. Bd. of Educ., 185 F.3d 770, 777 (7th Cir. 1999). As the
House is the entity possibly liable under Title VII, the Court will necessarily analyze the House’s
actions in assessing liability. Importantly, the House is only liable for any actionable harassment
by the Attorney General, a third party, if the House was negligent in responding to the harassment.
Chaib v. Indiana, 744 F.3d 974, 986 (7th Cir. 2014). The EEOC guidelines state “an employer
may be responsible for the acts of non-employees [such as Attorney General Hill], with respect to
sexual harassment of employees in the workplace, where the employer . . . knows or should have
known of the conduct and fails to take immediate and appropriate corrective action,” depending
on “the extent of the employer’s control and any other legal responsibility which the employer
may have with respect to the conduct of such nonemployees.” 29 C.F.R. § 1604.11(e) (emphasis
added). Importantly, an employer is not negligent where it “takes prompt and appropriate
corrective action reasonably likely to prevent the harassment from recurring.” Vance v. Ball State

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Univ., 646 F.3d 461, 471 (7th Cir. 2011), aff’d, 570 U.S. 421 (2013). A prompt investigation is the
“hallmark of reasonable corrective action.” Id. at 473.
Here in particular, the distinction between the State of Indiana and the House makes a
difference. The State of Indiana (really, the people of Indiana) have a relationship with and control
over Attorney General Hill through the electoral process. The House, on the other hand, has no
control over Attorney General Hill, an elected official of the Executive branch. It should go without
saying Attorney General Hill is not an employee of the House, a supervisor or a co-worker of Ms.
Lozano. As the EEOC guidelines demonstrate, the House’s liability under Title VII must be
assessed with this framework in mind, and only the House is in a position to defend its actions in
this regard.
Third, for largely the same reasons, if this Court does not permit the House to intervene,
its interests will be impaired or affected. The Seventh Circuit has approved intervention where a
suit offers the only opportunity to assert an interest before it is fully and finally decided. E.g.,
Lopez-Aguilar, 924 F.3d at 393 (stipulated judgment required sheriff’s department to disregard
what State of Indiana believed was legislative command to cooperate with federal government);
Reich, 64 F.3d at 322 (intervenors’ “one and only opportunity to define their employment status”).
On the other hand, additional opportunities in the future to litigate a claim do not bar intervention.
City of Chicago, 660 F.3d at 987 (“preclusion is not a condition of intervention under Rule 24(a)”).
Rather, courts “allow intervention as a matter of right when an original party does not advance a
ground that if upheld by the court would confer a tangible benefit on an intervenor who wants to
litigate that ground.” Id.
Here, the House’s interests in defending its actions in this particular matter will be impaired
or affected by disposition of Ms. Lozano’s Title VII claims. In addition, the House has a long-term

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interest in defending its policies and investigative actions from attack for the purposes of future
investigations and claims, if any. A ruling regarding whether the House took prompt and
appropriate corrective action reasonably likely to prevent the harassment from recurring will
confer a tangible benefit on the House in this matter (a finding of no liability) and in potential
future matters by approving the reasonableness of the House’s actions. In addition, the House has
an interest in the Court’s accurate, fact-based determination whether the staff Plaintiffs are subject
to Title VII or GERA; yet, as described below, the House’s interests are not being adequately
represented regarding this issue.
Fourth, the requirement of inadequate representation is “satisfied if the applicant shows
that representation of his interest ‘may be’ inadequate; and the burden of making that showing
should be treated as minimal.” Lake Invs. Dev. Group, Inc. v. Egidi Dev. Grp., 715 F.2d 1256,
1261 (7th Cir. 1983) (citing Trbovich v. United Mine Workers of Amer., 404 U.S. 528, 538 n.10
(1972)). Representation by existing parties is inadequate when there is a conflict of interest
between the intervenor and existing parties. City of Chicago, 660 F.3d at 986; see also Lopez-
Aguilar, 924 F.3d at 393.
Here, Attorney General Hill, as a party, has a demonstrable conflict of interest with the
House. Indeed, according to Plaintiffs’ Complaint, Attorney General Hill has claimed he was not
present at the event at AJ’s Lounge on the night in question, a key fact upon which the investigation
is based. (ECF No. 1, ¶ 99.) More importantly, Attorney General Hill has attacked the House’s
investigation in the media. See, e.g., Ryan Martin, Tony Cook, & Kaitlin Lange, ‘I stand before
you a condemned man’: AG Curtis Hill says he’s been unfairly judged, INDY STAR (July 9, 2018,
10:01 AM), https://www.indystar.com/story/news/2018/07/09/curtis-hill-attorney-general-
indiana-addresses-allegations-inappropriate-touching/767151002/. When the House’s liability

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depends on the reasonableness of its investigation and corrective action, public statements by the
Attorney General attacking the investigation demonstrate the Attorney General will not adequately
represent the House’s interests.
The Attorney General’s Office, appearing on behalf of the State of Indiana, as a whole, is
also unable to adequately represent the House’s interests. As a practical matter, under the
circumstances, it is not even clear who the decisionmaker is for the State, as a whole, with regard
to strategy and resolution; in other words, for purposes of this suit, it is not clear who is akin to the
client in a normal lawyer-client relationship. Under normal circumstances, the Attorney General
defends suits instituted against the State of Indiana, Ind. Code § 4-6-2-1, and it may be the Attorney
General retains ultimate decisionmaking power regarding strategy and resolution. In that case, as
described above, the Attorney General has a conflict of interest with the House, which means he
will not adequately represent the House’s interests when exercising that decisionmaking power on
behalf of the State of Indiana.
The recent Motion to Dismiss filed by the State of Indiana and the Attorney General (in his
official capacity) further demonstrates the State of Indiana, as represented by the Attorney
General’s Office, is unable to adequately represent the House’s interest because it is not involving
the House in the defense of these claims. The State claims the staff Plaintiffs are not “employees”
entitled to Title VII protection; instead, they must proceed under GERA. (ECF No. 17 at 8-13.) As
the employer, the House (with respect to Ms. Lozano) and the Senate (with respect to Ms. DaSilva
and Ms. McLemore) have a superior knowledge and understanding of the relationship between the
staff Plaintiffs and elected officials and the duties and responsibilities of the staff Plaintiffs. Yet,
the House has no knowledge of anyone from the Attorney General’s office contacting the House
to investigate the facts or even confirm their independent analysis was correct. Instead, despite

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explaining a court may consider evidence outside the pleadings to rule on jurisdictional issues, the
State of Indiana relies on the admittedly “sparse” details in the Complaint to speculate regarding
whether the staff Plaintiffs “could be” personal staff excluded from Title VII. (ECF No. 17 at 9-
10.) In doing so, the State of Indiana has drawn inaccurate inferences regarding facts relevant to
the Court’s determination of subject-matter jurisdiction. As a result, the House’s interests are not
being adequately represented by the State, as represented by the Attorney General’s Office.
The Attorney General’s Office may argue it will adequately represent the House’s interests
because the State of Indiana, as a whole, encompasses the House and, as demonstrated above, its
liability under Title VII is no greater than the House’s liability for its actions as employer. In this
way, the House may be akin to the client with regard to this suit because the suit concerns the
House’s actions. However, the State as a whole will not adequately represent the House’s interests
regarding the Title VII claims,2
because it is represented by the Attorney General in his capacity
as attorney. Indeed, the Attorney General has already appeared, by four deputy attorneys general
under the Attorney General’s name and signature block, without consulting the House. (ECF Nos.
12-15.) The Attorney General has a disqualifying ethical conflict of interest under Rule 1.7 of the
Indiana Rules of Professional Conduct governing attorneys and, by extension, so does his entire
office. Attorney General Hill’s demonstrated personal interest in protecting his own reputation,
including by attacking the House’s investigation, disqualifies him from representing the State or
the House. Rule of Prof. Cond. 1.7(a)(2) and Comment [10] (“if the probity of a lawyer’s own
2
At the current time, the House has no reason to believe the State will not adequately represent its interests regarding
the § 1983 claims, as currently pled against the State. As explained in the State’s brief in support of its motion to
dismiss, the § 1983 claims fail as a matter of law because, even if Plaintiffs seek only equitable and injunctive relief
against the State, the State is immune from suit under the Eleventh Amendment, and the State is not a “person” under
§ 1983. U.S. CONST. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commence or prosecuted against one of the United States….” (emphasis added)); Ill. Ass’n of Mortg.
Brokers v. Office of Banks & Real Estate, 308 F.3d 762, 765 (7th Cir. 2002) (dismissing state agency defendant from
§ 1983 suit for injunctive relief because “[t]he Association contends that as long as it seeks prospective relief the
Eleventh Amendment melts away. This is wrong.”).

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conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to
give a client detached advice”). Assuming without conceding continued representation were
consentable under Rule 1.7(b), the House does not consent to Attorney General Hill’s
representation under Rule 1.7(b)(4). Further, the House is not required to obtain Attorney General
Hill’s consent before retaining other attorneys to represent its interests in this matter. Ind. Code §
2-3-9-2(a)(3), (b).
Moreover, deputy attorneys general are likewise disqualified from representing the State
and/or House as matter of law, because deputy attorneys general answer to and speak for Attorney
General Hill. See Banton v. State, 475 N.E.2d 1160, 1164 (Ind. Ct. App. 1985) (“it is well settled
that once the prosecuting attorney is disqualified, his whole office is disqualified from representing
the State in a particular case,” as recusal in favor of a deputy is “pro forma at best”); see also State
ex rel. Goldsmith v. Superior Court of Hancock Cty., 270 Ind. 487, 491 (1979) (“if the elected
prosecutor himself … is disqualified by reason of having an interest in the outcome, his entire staff
of deputies must be recused”).3
As a result, the State of Indiana’s representation of the House’s
interests will be inadequate, and the fourth prong is satisfied.
Because the House has established all four prongs entitling it to intervention as of right
under Rule 24(a), the Court should grant the House’s motion for leave to intervene.
C. The House should be granted permissive leave to intervene under Rule 24(b).
In the alternative, the House should be granted permissive intervention under Rule
24(b)(2). Rule 24(b) of the Federal Rules of Civil Procedure states, in pertinent part:
On timely motion, the court may permit anyone to intervene who has a claim
or defense that shares with the main action a common question of law or fact.
3
Comment [2] to Rule of Professional Conduct 1.11 notes conflicts are not imputed within governmental agencies
but advises “it would be prudent to screen [conflicted] lawyers.” As the signature blocks on the deputy attorneys’
general appearances most obviously demonstrate, the Attorney General cannot truly be screened from this matter any
more than a disqualified, elected county prosecutor could be.

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A motion for intervention pursuant to Rule 24(b)(2) requires only the applicant’s claim or defense
and the main action have a question of law or fact in common. E.g., Flying J, Inc. v. Van Hollen,
578 F.3d 569, 573 (7th Cir. 2009). As such, Rule 24(b) is “just about economy in litigation,” and
the standard of appellate review for permissive intervention is abuse of discretion. City of Chicago,
660 F.3d at 987.
Rule 24(b)(2)’s goal of consolidating common legal or factual issues will be served by
intervention in this case. The House, as Ms. Lozano’s employer, shares a defense with the main
action; in particular, it is not liable under Title VII because, upon learning of Plaintiffs’ claims, it
took prompt, appropriate corrective action based on reasonable policies. The House’s defenses are
directly responsive to Plaintiffs’ claims, as demonstrated by the Complaint itself, which seeks to
impose liability based on the House’s actions and policies. The Title VII claims are the House’s
claims to defend. Therefore, the House should be granted permissive intervention as its defenses
respond to the causes of action alleged by Plaintiffs.
III. CONCLUSION
For these reasons, the House should be permitted to intervene in this action, as of right
pursuant to Fed. R .Civ. P. 24(a)(2), or in the alternative, granted permissive intervention pursuant
to Fed. R. Civ. P. 24(b)(2), as to the Title VII claims brought by Ms. Lozano against the State of
Indiana.

17
Respectfully submitted,
/s/ Susan M. Zoeller
Susan M. Zoeller
Caitlin S. Schroeder
Jackson Lewis P.C.
211 North Pennsylvania Street, Suite 1700
Indianapolis, Indiana 46204
Tel: (317) 489-6930
Fax: (317) 489-6931
E-mail: susan.zoeller@jacksonlewis.com
caitlin.schroeder@jacksonlewis.com
Attorneys for Intervenor-Defendants

18
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on July 22, 2019, I filed the foregoing Brief in
Support of Motion to Intervene electronically with the Clerk of the Court. Notice of this filing will
be sent to participants who are registered CM/ECF users by operation of the Court’s electronic
filing system. Parties may access this filing through the Court’s system.
William J. Brinkerhoff
bbrinkerhoff@kkclegal.com
Kimberly D. Jeselskis
kjeselskis@kkclegal.com
Hannah Kaufman Joseph
hjoseph@kkclegal.com
Jefferson S. Garn
Jefferson.Garn@atg.in.gov
Parvinder Kaur Nijjar
Parvinder.Nijjar@atg.in.gov
Patricia Orloff Erdmann
Patricia.Erdmann@atg.in.gov
Winston Lin
winston.lin@atg.in.gov
Alyssa Durell Stamatakos
astamatakos@eichhorn-law.com
David Charles Jensen
djensen@eichhorn-law.com
John P. Twohy
jtwohy@eichhorn-law.com
Michael Roth
mroth@eichhorn-law.com
Robert J. Feldt
rfeldt@eichhorn-law.com
/s/ Susan M. Zoeller
Susan M. Zoeller
4833-1391-8109, v. 1

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