AG argues governor not allowed to override Legislature’s veto

Indiana Attorney General Todd Rokita is doubling down on his argument that the governor cannot turn to the courts to settle the dispute over House Enrolled Act 1123, asserting the executive branch is attempting to use the judiciary to demand a “super” veto of the Legislature.

The attorney general makes his arguments in his reply brief in support of his motion seeking to have Gov. Eric Holcomb’s lawsuit against the Legislature dismissed.

Holcomb filed the lawsuit, Holcomb v. Bray, et al., 49D12-2104-PL-14068, after the Statehouse overrode his veto of HEA 1123. The governor claims the law, which empowers the General Assembly to call itself into a special session, violates the Indiana Constitution. In particular, the governor highlighted the separation of powers principle in Article 3 Section 1 as prohibiting one branch of state government from exercising any of the functions of another branch.

However, the attorney general counters the governor is trying to expand the powers of the executive branch.

“Article 3 section 1 does not confer on constitutional officers a freestanding power to challenge statute in court,” the reply brief states. “Indeed, the separation of powers exists to protect the liberty of the governed — not the prerogatives of public officials.”

Shortly after the governor hired outside counsel from Lewis Wagner and filed his lawsuit, Rokita declared Holcomb could not seek remedy from the courts because the Attorney General’s Office did not give permission to engage private attorneys.

In his reply brief, Rokita repeatedly refers to the governor’s attorneys as “unauthorized counsel” and contends both the General Assembly and the Indiana Supreme Court have recognized the authority of the attorney general to direct the state’s litigation. The 22-page reply brief relies heavily on the Indiana Supreme Court’s decision in State ex rel. Sendak v. Marion Cty. Superior Ct., Room No. 2, 268 Ind. 3, 373 N.E.2d 145 (1978), referring to the ruling 25 times.

“And where, as here, the Governor as the State seeks to pursue a legal claim without the Attorney General’s consent, it impedes the Attorney General’s core mission to adopt a unified litigation position on behalf of the State,” Rokita argues in his reply brief. “The result is different state officials taking contradictory legal positions in court and thereby jeopardizing the State’s legal interests — precisely the situation the Office of the Attorney General was created to prevent.”

Rokita asserts in his brief that in denying consent, he considered, among other things, standing and legislative immunity as well as his view that HEA 1123 is constitutional.

“A lawsuit by the Governor against legislators to invalidate a law enacted over the Governor’s veto amounts to a demand for a ‘super’ veto via the judiciary,” the attorney general argues in his reply brief. “It is no small thing for one branch of government to drag another branch of government to account before the third branch. No constitutional provision secures to officials of any branch such extraordinary power.”

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