Rokita seeks appeal of order allowing governor’s lawsuit against General Assembly to proceed

Editor’s note: This story has been corrected.

Indiana Attorney General Todd Rokita is seeking an appeal just days after a Marion County judge denied his request to do away with a complaint filed by Gov. Eric Holcomb against the Indiana General Assembly.

The AG’s office late Tuesday announced it had filed a motion asking to certify the case for interlocutory appeal. Rokita is challenging a Marion Superior Court order issued Saturday denying his motion to strike the appearance of counsel obtained by the governor from Lewis Wagner LLP in Holcomb v. Bray, et al., 49D12-2104-PL-14068.

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

Rokita’s motion for interlocutory appeal poses two questions:

  • Whether the governor, acting in his official capacity, can retain outside counsel and sue the Indiana General Assembly or its members or the Legislative Council without the consent of the Attorney General.
  • Whether the governor may sue the Indiana General Assembly or its members or the Legislative Council while the General Assembly remains in session despite the absolute immunity from “any civil process” conferred by Article 4, § 8, of the Indiana Constitution and Indiana Code section 2-3-5-1.

The AG’s office likewise filed a “Motion to Vacate Order Setting Briefing Schedule and Stay Proceedings Pending Appeal.” In it, Rokita’s office wrote that “The State of Indiana, including Governor Eric J. Holcomb … “ was asking the court to vacate a briefing schedule and to stay proceedings pending the appeal.

Rokita has continually expressed the view that he represents the governor in the matter at hand, despite Holcomb’s hiring of outside counsel to represent him.

“The Attorney General’s Office has fought for the liberties of the people of Indiana for decades, using the very same precedents this court has now upended,” Rokita said in a statement. “The constitution belongs not to the Governor, the legislature, or the Attorney General, but to the people of Indiana. If left unchallenged, the court’s order in this case threatens to tip the balance of powers and undermine the individual liberties of the citizens of this state. As such, we have filed an appeal in the interest of protecting Hoosiers.”

The AG’s office said that the question of who has authority to represent the state’s legal interests in court is an issue of “fundamental importance” for Indiana’s government.

Asked to comment on Rokita’s appeal, the governor’s office reiterated its prior statement on the Marion Superior Court’s ruling.

“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 future governors who operate in times of emergency,”general counsel Joe Heerens said on behalf of the governor’s office.

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