Rokita asks Supreme Court to stop proceedings in Holcomb lawsuit against General Assembly

Indiana Attorney General Todd Rokita is asking the Indiana Supreme Court to order a trial court to stop proceedings in the governor’s lawsuit challenging a new law that allows Indiana legislators to call themselves into a special legislative session.

Rokita on Monday filed a petition for writ of mandamus and prohibition, and a petition for emergency writ of mandamus and prohibition, seeking to stop proceedings in the case of Holcomb v. Bray, 49D12-2104-PL-14068, in Marion Superior Court 12. GOP Gov. Eric Holcomb filed the lawsuit in April after the Indiana General Assembly overrode his veto of House Enrolled Act 1123, which allows the Legislature to call itself into an “emergency session.”

“We are asking the Supreme Court to stop the executive branch power grab underway by preserving the constitutional protections that are meant to preserve Hoosiers’ individual liberty and that have served Indiana well for more than 100 years,” Rokita, a Republican, said in a Monday news release. “Allowing the Governor’s lawsuit to continue confers power on the judiciary, the branch of government that, by design, is least representative of the people. This power grab by the Governor and the authority it would give to the courts to interfere with political decisions should scare us all.”

Holcomb argues that under the Indiana Constitution, only he has the authority to call for a special session. But Rokita countered that Holcomb cannot proceed with his lawsuit without the AG’s consent, which was not given. Rokita also argues that only he can represent the governor in the matter at hand, despite Holcomb hiring lawyers from Lewis Wagner LLP.

Rokita had asked Marion Superior Judge Patrick Dietrick to strike the appearance of outside counsel, but the judge denied his motion. He then asked the lower court to certify the case for interlocutory appeal and for a stay — motions that were also denied.

Now the AG’s office is asking the state’s highest court to intervene, arguing that because the Indiana General Assembly is still in session, Article 4 Section 8 of the Indiana Constitution and Indiana Code § 2-3-5-1 require a continuance.

“The trial court’s refusal to continue all proceedings in this case until at least 30 days after the legislature adjourns sine die is unconstitutional, contrary to a non-discretionary statutory directive, and exceeds the trial court’s jurisdiction over a coordinate branch of government,” Rokita wrote in a brief filed Monday. “By refusing to certify its order for appeal or stay the proceedings, the trial court’s decisions threaten to nullify these provisions while depriving Relators of appellate review.”

The relators in the Supreme Court filing are the General Assembly, Senate President Pro Tem Rod Bray, House Speaker Todd Huston and the Legislative Council. Rokita’s office has modified its representation in the case to exclude the governor.

“The Attorney General’s Office was created to enable the state to speak with one voice on legal matters,” Rokita said in the news release. “The reasons are straightforward: allowing the branches to sue one another, or individual office holders to do the same, whenever they want, will add significant costs for taxpayers as well as create confusing and unsettled policies for all Hoosiers.”

The news release said Rokita’s office would “continue to fight this battle” to “keep power in check and costs low.” It added that the issues raised in this case fall into the “narrow” category of cases that may be filed directly with the Supreme Court.

The case in the Supreme Court is State ex rel. The Indiana General Assembly, et al. v. Marion Superior Court 12, et al., 21S-OR-354.

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