Trial court rejects AG’s motion in fight with governor

This story has been updated.

The Marion Superior Court has denied Indiana Attorney General Todd Rokita’s attempt to stop Gov. Eric Holcomb from continuing his lawsuit against the Legislature in the dispute over who can call the General Assembly into a special session.

The order was issued Tuesday denying the attorney general’s motion to vacate order setting briefing schedule and stay proceedings pending appeal in Holcomb v. Bray, et al., 49D12-2104-PL-014068.

Rokita had asked the court to stay proceedings until the Indiana Supreme Court rules on whether the governor can be represented by private attorneys in this matter. Holcomb sued the Legislature, arguing House Enrolled Act 1123 violates the state constitution’s separation of powers.

After the lawsuit was filed, the attorney general intervened, claiming that because his office did not give permission, the governor cannot hire outside counsel.

The attorney general told the trial court that it would be more efficient to wait for the justices to rule before proceeding to summary judgment.

However, Judge Patrick Dietrick rejected Rokita’s motion in a one-sentence ruling.

Also, the trial court denied the attorney general’s motion for an interlocutory appeal of its ruling which held the attorney general cannot represent the governor in this matter and the governor can hire his own lawyers.

Rokita had argued in the motion need to have the Court of Appeals render an opinion.

“Now, this Court has suggested that the Governor’s power to executive the laws overrides the legislature’s decision to vest exclusive litigation authority in the Attorney General,” the motion states. “Whether that assessment represents a constitutional rebuke to the legislature or merely a rationale for interpreting the relevant statues in a particular way, the result threatens a sea change for state government litigation authority.”

In a response filed Monday, Holcomb blasted the Rokita’s motion.

“At the outset of this litigation, Governor Holcomb made clear that this case requires a speedy resolution: ‘Any delay in addressing the constitutionality of …HEA 1123 could result in severe disruption to Indiana and the proper functioning of state government,” the governor states in his response, citing his original complaint filed in April. “The Defendants’ Motion present that very type of delay, hoping to stall this litigation in an effort to prevent this Court from reaching a resolution on the merits.”

The governor argued, in part, that allowing this issue to go before the Indiana Court of Appeal would hobble the progress of this case. Instead of allowing this appeal to move forward in a “piecemeal” fashion, Holcomb asserted the more effective means of securing a “just, speedy and inexpensive determination” would be for the trial court to reach a ruling on the merits of the lawsuit and then allow all the issues to be presented on appeal.

Holcomb bolstered his argument by pointing to the calendar. He noted that at the earliest, the Court of Appeals would not hand down a decision until three days before the trial court is scheduled to hear arguments on summary judgment. Moreover, the governor pointed out a ruling from the appellate court would not automatically end the litigation. For example, the judges might find Holcomb can proceed pro se with his complaint or order the attorney general to appoint independent attorneys from his office to represent the governor.

“The Defendants’ litigation tactics also present a remarkable change from their pre-litigation statements. Prior to this case, Defendant Todd Huston was quoted as saying reasonably enough: ‘We’ll let the court decide. We’ll have an answer moving forward,’” the governor stated in his response, referring to Indiana Speaker Todd Huston, R-Fishers. “Now the Defendants want to delay an answer, instead seeking to delay this case over procedural grounds. All the while HEA 1123 remains in place and could disrupt the proper functioning on Indiana state government.”

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