Judge letting Indiana’s governor sue to block emergency law

Editor’s note: This story has been updated. 

Attorneys for Indiana Gov. Eric Holcomb and Indiana Attorney General Todd Rokita faced off last month during oral arguments about whether the governor could hire his own legal counsel to represent him in a lawsuit he filed against the state’s legislative body. A Marion County Superior Court judge, in an order posted Saturday, ruled that he could.

The lawsuit, Eric J. Holcomb, Governor of the State of Indiana v. Rodric Bray, in his official capacity as the President Pro Tempore of the Indiana State Senate, and chairman of the Indiana Legislative Council, Todd Huston, in his official capacity as the Speaker of the Indiana House of Representatives, and vice-chairman of the Indiana Legislative Council, The Legislative Council as established by Indiana Code § 2-5-1.1-1, and The Indiana General Assembly, 49D12-2104-PL-014068, was filed in Marion Circuit Court in April.

It was there that Holcomb alleged the provisions in House Enrolled Act 1123 that allow the Indiana General Assembly to call itself into “emergency session” are unconstitutional and encroaches on the sole authority afforded the governor in the state’s constitution to call a special legislative session.

Rokita inserted himself into the fray by entering an appearance on behalf of both Holcomb and the defendants. He then filed a motion seeking to strike Holcomb’s selected counsel, attorneys from Lewis Wagner LLP, as well as the complaint. Counsel for both the governor and the AG’s office went head to head last month on the issue.

But Marion Superior Judge Patrick J. Dietrick denied Rokita’s motion in a July 3 order, concluding that independent counsel under the unique circumstances could represent the Indiana governor.

In addressing two legal questions of first impression in what he called a “separation of powers case”, Dietrick concluded that the Indiana AG does not have the legal authority to prevent a sitting governor from hiring legal counsel to represent themselves in a challenge of a law that the governor contends infringes upon his or her Constitutionally-granted powers when the AG doesn’t wish to challenge the law.

Dietrick ultimately agreed with Holcomb, also being persuaded by the view taken by former Attorney General Greg Zoeller that the Indiana Constitution was not designed to prevent a governor from bringing a case such as the one at hand.

“When separation of powers is at issue – as it is here – the Attorney General’s powers do not grant him the authority or ability to prevent a sitting Indiana governor from exercising his or her inherent right to defend the constitutional office of governor by hiring his or her own counsel to do so,” Dietrick wrote.

The judge further noted that Rokita “has an irreconcilable conflict of interest” in appearing for both parties.

In rejecting Rokita’s assertion that he alone has the legal authority to represent the state in court and can decide whether the new law is allowed under the state constitution despite the governor’s objections, Dietrick wrote that such an interpretation would give the attorney general greater power than Holcomb in protecting the governor’s constitutional powers.

“This is an absurd result that could not have been intended by either the drafters of Indiana’s Constitution or the General Assembly,” Dietrick wrote.

Dietrick further concluded that if Rokita was truly the “end-all-be-all for Indiana’s ‘unifying legal position’” as he alleged, then he would also be authorized to exclusively represent all state entities, not just some of them.

“In conclusion, although the Attorney General has some authority to take positions in litigation involving some state ‘agencies,’ that authority is not as extensive or vast as the Attorney General claims,” Dietrick wrote. “That authority does not extend to controlling litigation regarding separation of powers disputes involving two separate branches of government, as is the case here.”

Lastly, the judge found that legislative immunity as provided under Article 4 Section 8 of the Indiana Constitution does not apply in the case at hand. This provision prohibits the state senators and representatives from being entangled in a civil lawsuit during the legislative session.

The General Assembly has argued that because the session has just been recessed until the legislators return to draw the district maps, it is still in session and, therefore, cannot be sued by the governor. Dietrick concluded that Indiana governors must have the ability to access the courts in order to advance their position that constitutional powers have been infringed by the Indiana legislature.

“To hold otherwise would be to elevate the Indiana legislature– via the Speech and Debate Clause – above the Governor’s constitutional duty to make sure the Indiana Constitution is faithfully executed,” Dietrick wrote. “Granting the Defendants that type of immunity would create legislative supremacy, not preserve its independence.”

Finding legislative defendants not immune from having to defend themselves against Holcomb’s suit, the judge concluded that the case may proceed against all of the defendants.

“The judge’s ruling in the governor’s favor means the lawsuit will proceed on the merits of the case. The outcome is important for Gov. Holcomb and how future governors who operate in times of emergency,” said General Counsel Joe Heerens, on behalf of the governor’s office.

The Attorney General’s Office didn’t reply to a request for comment by IL deadline.

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