Court sides with AG, strikes prosecutor’s attorneys in abortion ban challenge

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Editor’s note: This story has been updated 

Indiana Attorney General Todd Rokita’s office has notched a victory in his fight against the Marion County prosecutor, with the Monroe Circuit Court agreeing that the state’s top lawyer has the authority to represent all the defendants named in the lawsuit challenging the state’s new abortion law on constitutional grounds.

In a two-page ruling issued Friday, Monroe Circuit Special Judge Kelsey Hanlon found the Marion County prosecutor is a state officer. Consequently, under Indiana Code § 4-6-2-1, the attorney general has the “exclusive power” to represent all state officers in legal actions.

SmithAmundsen partners Linda Pence and Suzannah Overholtz had been hired by Marion County Prosecutor Ryan Mears to represent his office in Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana, et al., 53C06-2208-PL-001756.

Mears had argued county prosecutors are not state officers. Also, he told the court the attorney general could not represent the Marion County Prosecutor’s Office because Rokita’s support of an abortion ban with no exceptions is contrary to the views of the majority of Indianapolis residents.

The ruling ordered the appearances of Pence and Overholtz to be stricken from the docket.

Indiana Lawyer has reached out for comment to the Marion County prosecutor as well as to Pence and Overholtz.

For his response, Rokita referred to the reply brief  his office filed with the court Thursday.

The reply claimed, in part, the Marion County prosecutor misquoted state statute in arguing he is not a state officer and misreads Indiana Code Section 4-6-2-1.5 which, the attorney general asserted, allows public officials to hire private attorneys only when they are sued in their personal capacities for their conduct at work.

Moreover, the reply countered that I.C. section 33-39-9-2, which requires the state to pay attorney fees if the attorney general has authorized the use of outside counsel, indicates the statute clearly understands the state’s top lawyer directs the defense of prosecuting attorneys and makes the decisions about employing private attorneys.

“Prosecutor Mears wishes to hire outside counsel to advance his belief that (Indiana’s new abortion ban) is ‘not … in the best interests of the residents of Marion County. But S.B. 1 is a state statute enacted to advance the interests of Indiana citizens as a whole, not to enforce the personal beliefs of Prosecutor Mears,” the attorney general’s reply brief stated. “Notably, Prosecutor Mears states no intention to file a brief concerning the constitutionality of S.B. 1, which is the only issue in this case. While prosecutors have discretion to choose whether to prosecute specific cases, they do not have the authority to accept default judgments in constitutional challenges to state statutes — or to argue against the constitutionality of state statutes in court.”

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