Attorneys for Rokita, Holcomb face off in court over governor’s right to sue

Indiana Attorney General Todd Rokita’s office got its day in court Wednesday to argue why it thinks Gov. Eric Holcomb shouldn’t have been allowed to hire his own attorneys to sue the Indiana General Assembly.

Among the questions asked by Marion Superior Judge Patrick J. Dietrick was what legal recourse Holcomb had when Rokita wouldn’t agree to take the case, which challenges a law that the governor alleges unconstitutionally encroaches on his executive powers.

The hearing didn’t result in any decision on Rokita’s request to stop the governor’s lawsuit. That likely won’t come for at least several weeks. But it did shine a light on the judge’s line of questioning, which also focused on any legal precedents that might apply.

The power struggle between Holcomb and Rokita, both Republicans, arose in April when the governor decided to sue the Legislature after it passed a law over his veto that lets the Legislature call itself into emergency session during a crisis such as a pandemic. Holcomb maintains that the state constitution gives the governor the sole authority to call a special legislative session.

Rokita declined to file the governor’s lawsuit, so Holcomb hired outside lawyers with Lewis Wagner LLP to do it. Rokita then argued that only he or attorneys he authorizes have the power to represent the state in court.

When asked in court Wednesday for legal precedent to support that claim, Indiana Solicitor Thomas M. Fisher pointed to a 1977 Indiana Supreme Court case holding that no state agency can use outside counsel without the attorney general’s approval.

“We’re in court over the issues of who represents the state of Indiana,” Fisher said after the hearing. “The Indiana General Assembly has said it’s the attorney general, exclusively. The Indiana Supreme Court has upheld those statutes as constitutional. We were urging the court to strike the appearances of the unauthorized counsel as a result.”

Attorney John Trimble, representing Holcomb, said the 1977 case does not apply because the governor is not a state agency but a branch of government. He argued that the governor should have access to the court system to defend his constitutional powers.

The judge asked attorneys for both sides to submit proposed findings of fact by June 30.

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