Editor’s note: This story has been updated
A split Indiana Supreme Court has not only squashed an attempt to derail the governor’s lawsuit against the Legislature but has also barred any petition to bring the matter back before the justices.
The order signed by Chief Justice Loretta Rush and issued Friday provided no insight into the court’s reasoning. Instead, the court denied Indiana Attorney General Todd Rokita’s request for a permanent writ of mandamus and prohibition. Also, the court held that motions to reconsider or petitions for rehearing are not allowed.
Rokita turned to the Supreme Court after the Marion Superior Court refused to issue a continuance in Gov. Eric Holcomb’s lawsuit until the Indiana General Assembly adjourned. Rokita filed an emergency writ to halt the trial court proceeding, which the justices swatted away in an order issued Aug. 3.
All justices concurred with the decision on the emergency petition. However, they split on the request for a permanent writ, with Justice Geoffrey Slaughter casting the lone vote for granting the petition in favor of the relators: Senate President Pro Tempore Rodric Bray and House Speaker Todd Huston.
The case, Eric J. Holcomb, governor of the State of Indiana v. Rodric Bray, et al., 49D12-2104-PL-014068, is moving forward in Marion Superior Court.
Following the Supreme Court’s decision, Rokita issued a statement, reiterating his argument that the Legislature cannot be sued at this time because it has not formally ended its 2021 legislative session. The General Assembly went into recess in the spring so the legislators could be called back this fall to complete the redistricting process.
“The plain text of both the Indiana Constitution and state statute requires postponement of any lawsuit during a session so that lawmakers may focus their attention on the legislative process,” Rokita said. “Ignoring that protection sets a dangerous legal precedent, seemingly inconsistent with the rule of law. Unfortunately, the court did not give a reason for its decision, which was not unanimous. My office looks forward to debating the merits of the case.”
Holcomb filed the lawsuit in April seeking to overturn House Enrolled Act 1123, which gives the Legislature the ability to call itself into emergency session. The governor argues the law violates the Indiana Constitution’s separation of powers provision in Article 3 § 1.
Rokita intervened, asserting he did not give the governor permission to hire his own attorneys. The attorney general took the matter directly to the Supreme Court when the Marion Superior Court denied his motion to block the governor’s lawsuit.
The trial court has scheduled an in-person hearing Sept. 10 on the defendants’ motion for summary judgment.