Holcomb asks Supreme Court whether AG Hill’s suspension creates vacancy

Just one day after the Indiana Supreme Court ordered Attorney General Curtis Hill to serve a 30-day suspension for ethical violations, Gov. Eric Holcomb is petitioning the high court for guidance on what the suspension means for Hill’s ability to remain in office and challenging Hill’s decision to appoint his chief deputy to serve in his absence. A ruling in Holcomb’s favor could permit him to appoint Hill’s replacement.

Holcomb’s office on Tuesday filed an Emergency Motion to Intervene and Request for Clarification on Attorney Disciplinary Order,  asking the justices for clarification on whether “the Court’s May 11, 2020 Order suspending Attorney General Hill from the practice of law for a period of thirty (30) days means that he is not ‘duly licensed to practice law in Indiana’ as set forth in statute.”

“If Attorney General Hill does not have the requisite qualifications for the office, an issue arises as to whether a ‘vacancy’ exists under Article 5, Section 18 of the Indiana Constitution and/or Indiana Code § 3-13-4-3(d) such that the Governor must name a successor for the remainder of Attorney General Hill’s current term,” the motion reads.

Hill’s suspension will go into effect Monday after the high court unanimously determined that he violated Indiana Professional Conduct Rules 8.4(b) and (d) when he drunkenly groped four women at a party in March 2018. Since the discipline was handed down Monday, political leaders from both parties have questioned Hill’s eligibility to remain in office.

Holcomb was among those asking the eligibility question. He told reporters Monday that his legal team was researching what executive authority he might have to respond to Hill’s temporary suspension with automatic reinstatement.

“While this Court’s order succinctly addressed the length of Attorney General Hill’s suspension from the practice of law as well as the conditions upon which he will be automatically reinstated following the conclusion of his suspension, it was silent as to the effect of the suspension on Attorney General Hill’s ability to perform any of the duties and responsibilities of the Office of Attorney General,” the motion reads. “The Order also left open the issue of whether the suspension from the practice of law equates to not being duly licensed to practice law in Indiana, in which event he would no longer meet the statutory qualifications required to be the Attorney General.”

State law requires the attorney general to be a lawyer “duly licensed to practice law in Indiana.”

“What is not clear under Indiana law,” the motion says, “is what happens when the Attorney General is not duly authorized to practice law, and thus, unable to fulfill his statutory duties and responsibilities.”

Hill has said his chief deputy, Aaron Negangard, will stand in for him until Hill’s license is reinstated June 17.  But “Attorney General Hill’s proposal that one of his deputies will perform his required legal duties during his suspension is not expressly allowed under Indiana law,” the governor’s legal counsel wrote.

“… In other words, Indiana law expressly allows the Attorney General’s authority to flow to his deputies, but there is no provision allowing a deputy to ascend to the role of Attorney General.”

Hill’s office did not immediately respond to a request for comment.

The governor pointed to In re Appointment of Temporary Prosecuting Attorney, 834 N.E.2d 656, 657 (Ind. 2005), as an example of a suspension prohibiting an elected prosecutor from performing her duties.

“Accordingly,” the motion continues, “the Governor concludes that based upon Attorney General Hill’s current inability to perform his statutory duties, and the lack of a statutory provision affirmatively providing him with the ability to name his interim successor, it is an important clarification for this Court to provide as to whether a vacancy has been created in the Office of the Attorney General.”

Holcomb’s office is seeking to intervene in the disciplinary action for the limited purpose of gaining this clarity. If there is a vacancy, Holcomb is asking for an order for the Elkhart Circuit Court clerk to certify the vacancy under I.C. 3-13-4-3-(d).

The case is In the Matter of Curtis T. Hill, Jr., 19S-DI-156.

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