Attorney General Todd Rokita’s move to insert himself into the dispute between Gov. Eric Holcomb and the Indiana General Assembly over executive power is being challenged by members of the legal profession who see the state’s top lawyer as violating his oath and overstepping his authority.
“It’s really troublesome to see Mr. Rokita meddling in this dispute,” said Indianapolis attorney Bill Groth. “He should step aside and let the courts resolve it.”
Tuesday, Holcomb filed a lawsuit against the Legislature, challenging provisions in House Enrolled Act 1123 that allow the Indiana Legislature to call itself into an emergency session whenever the governor issues an emergency order. The bill is seen as a reaction to the executive orders mandating masks and closing businesses that Holcomb issued in response to the COVID-19 public health crisis.
In the complaint, which has been assigned to Marion Superior Court 12, Holcomb asserts that under Article 4 § 9 of the Indiana Constitution, the authority to call the Legislature into special session is “clearly, unequivocally, and exclusively a function of the governor.”
The governor hired Lewis Wagner LLP to represent his office in this matter.
However, after the lawsuit was announced, Rokita issued a statement claiming only his office has authority over this dispute. Rokita noted he denied the governor’s request to hire outside counsel.
“In creating the Office of the Attorney General, the General Assembly resolved precisely this sort of situation – where two parts of the state government disagree on a legal question. And as the Indiana Supreme Court recognized more than forty years ago, the Attorney General exists to resolve such disagreements and ‘to establish a general legal policy for state agencies,’” Rokita said, citing State ex rel. Sendak v. Marion Cty. Superior Ct, 268 Ind. 3, 6-7, 373 N.E.2d 145, 147 (1978).
Retired Indiana Supreme Court Justice Frank Sullivan said Rokita is misreading court precedent and intruding on the authority of the judiciary.
The decision in Sendak, Sullivan said, is “totally irrelevant as a precedent in this circumstance.” In that case, the Supreme Court did find the governor needed the consent of the attorney general before hiring private counsel to represent a state agency. But the dispute was between a business, A-1 Beverage Co., and the Indiana Alcoholic Beverage Commission.
“In my view, that is completely different from the current situation,” Sullivan said. “(Sendak) involved a dispute between state government and an outside party. It did not involve a dispute within state government.”
Moreover, Sullivan continued, only the judicial branch has the authority to resolve a constitutional dispute between the executive and legislative branches of government. He pointed to the 1822 Indiana Supreme Court decision in Dawson v. Shaver, which cited Marbury v. Madison, 5 U.S. 137 (1803), in finding the “duty of the court is to declare any part of statute null and void that expressly contravenes the provision of the constitution.”
Both Sullivan and Groth believe Rokita’s denial of the governor’s request to hire outside counsel potentially puts the attorney general in violation of Indiana Professional Conduct Rule 1.7. The rule prohibits a conflict of interest, which occurs when the representation of one client will be adverse to another client or limited by the lawyer’s responsibilities to the other client.
With the dispute over HEA 1123, Groth maintained the governor and the Legislature have “diametrically competing interests,” so Rokita “had an obligation” to allow Holcomb to hire private counsel. Instead, he has put himself in a predicament.
“The Rules of Professional Conduct apply to him as well as all lawyers,” said Groth, of counsel at Vlink Law Firm LLC. “He hasn’t been given a blanket exemption from the rules by virtue of his office.”
Sullivan went a step further. He opined that under Rule 1.7, Rokita would actually need the governor’s permission to be able to represent the Legislature in this lawsuit.
Republican legislators argued during the 2021 session that HEA 1123 is not unconstitutional. While Article 4 § 9 includes language about the governor calling a special session, it does not expressly bar the General Assembly from calling an emergency session.
Sullivan and Groth view HEA 1123 as a “gross overreach” by the Legislature.
Echoing a point Holcomb made in his lawsuit, Sullivan said the lawmakers’ interpretation was wrong because the constitution has to be read in its entirely. Specifically, Article 3 § 1 states that one branch government cannot exercise the powers of another branch unless expressly allowed within the constitution.
Through the entire process, Holcomb did everything he could do to prevent HEA 1123 from becoming law, Sullivan said. The governor’s office testified against the measure at committee hearings, and when the bill was passed, Holcomb vetoed it just as he said he would do. Then he filed the lawsuit.
“I think he’s behaved responsibly here,” Sullivan said.
Now, as Groth and Sullivan point out, the governor is having to fend off an attack from his attorney general who is attempting to put his “thumb on the scale in favor of the Legislature.” The situation comes with the risk of creating a slippery slope.
“What’s to prevent the Legislature from taking away power over and over?” Groth asked.