AG Rokita files motion to strike governor’s lawsuit

Indiana Attorney General Todd Rokita filed a motion to strike Friday to have the Marion Superior Court toss the governor’s lawsuit over executive powers, arguing in part, “the Governor cannot merely sue the legislature over laws he does not like.”

In a press release, Rokita described the lawsuit as “unauthorized” and claimed his office, not the court, has jurisdiction over the matter.

“… (T)he proposed legal course of action being pursued by the attorneys purporting to represent the Office of the Governor is a threat to the stability and proper functioning of our divided and limited government as it would establish a precedent for governmental branches or officials to sue one another, at taxpayer expense, over abstract disagreements in governing principles,” the press release stated.

“The Constitution does not authorize the judicial branch to resolve disagreements between the other branches over legal policy, even when those disagreements implicate constitutional disputes. The legislature created the Office of the Attorney General precisely to resolve these sorts of disagreements over state legal policy,” the press release continued.

Gov. Eric Holcomb filed a lawsuit Tuesday, challenging the constitutionality of House Enrolled Act 1123. Specifically, a provision in the law gives the Indiana General Assembly the power to call itself into special session any time the governor declares a state of emergency.

In Holcomb v. Bray, et al., 49D12-2104-PL-014068, the governor argues that under Article  4 § 9 of the Indiana Constitution, only his office has the power to call the Legislature into special session. Also, under Article 3 § 1, the Legislature cannot infringe on any function given exclusively to another branch of government.

Rokita pushed back against the constitutional argument. In the press release, the Attorney General’s Office said the new law “leaves untouched the Governor’s constitutional authority” and allows the General Assembly to carry out its own constitutional authority to “appoint by law” the day commencing its sessions and to “fix by law” the “length and frequency of (its) sessions.”

The attorney general also maintains that because he did not grant Holcomb’s request to hire outside counsel, the governor cannot pursue the legal action in court. The motion to strike and memorandum in support of the motion assert that precedent in state and federal courts “vests the Attorney General alone with the authority to determine the State’s position on legal questions – including the constitutionality of HEA 1123 – and to direct the State’s representation in Court.”

In addition, Rokita argues the lawsuit cannot proceed because the Legislature is still in session.

The General Assembly extended its session to Nov. 15 to allow lawmakers to reconvene and vote on redistricting bills. The 2020 census data was delayed, so the Statehouse is being forced to draw legislative and congressional districts later in the year rather than during the regular session.

Rokita asserts that under Article 4 § 8 of the state’s constitution, senators and representatives cannot be subjected to civil lawsuits while the General Assembly is in session.

“Accordingly, while unambiguous controlling precedents require the Court to strike the unauthorized appearances and filings in this case, additional unambiguous constitutional and statutory provisions require that, even failing that remedy, the Court should continue all proceedings to a date not sooner than 30 days following the adjournment of the 2021 session,” the memorandum states.

Some in the legal community have questioned the attorney general’s actions, saying he is potentially violating the Rules of Professional Conduct and overstepping his authority.

Rokita emphasized the problem he sees with letting Holcomb’s lawsuit move forward.

“To proceed in court with litigation, however, would fracture foundational legal principles — principles that have served Indiana citizens well by providing the basis for divided and limited government and properly accountable policy making and execution,” the press release from his office said. “If permitted, private counsel would represent only the present interests of a single official, the Governor, not the broader interests of the State and the will of the people in safeguarding the various claims, defenses and immunities that protect an array of state agencies and governmental activities from legal attack.”

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