Indiana Attorney General Todd Rokita asked a judge Friday to strike down Gov. Eric Holcomb’s lawsuit against legislative leaders for their bill allowing them to call themselves into a special session in case of a statewide emergency.
In his motion, Rokita called Holcomb’s lawsuit “unauthorized” – saying only he, as attorney general, has the authority to represent the state.
He called the lawyer who filed the suit on Holcomb’s behalf – Indianapolis litigator John Trimble – “unauthorized” and referred to him as only “purporting to represent the governor of Indiana.”
“Indiana law unambiguously provides that the Attorney General of Indiana shall represent the state, its agencies, and state officers in their official capacities,” the motion reads, going on say that the Indiana General Assembly “has given the Office of the Attorney General the sole responsibility for the legal representation of the state,” citing the 1978 court decision in Sendak v. Marion County Superior Court.
“The Attorney General has not authorized anyone outside the Office of Attorney General to represent Governor Holcomb, a state officer, in this action,” the motion says.
In a memo filed along with the motion, Rokita said state officials may only hire outside counsel with the “express consent” of the attorney general, saying in this case, the governor and the attorneys who filed the suit did not have his consent.
Rokita’s suit is a strong rebuke of the governor and his handling of the COVID-19.
Holcomb first declared a 30-day state of emergency March 6, 2020 and recently renewed it by executive order for a 13th time, extending it through Memorial Day weekend, the unofficial start of summer.
The Indiana General Assembly did not take action to end the state of emergency during the legislative session, as they are able to do under the state’s Emergency Management and Disaster Law. The leaders of the state House of Representatives and Senate refused to allow a vote on two resolutions, one authored by Rep. Curt Nisly, R- Milford, and the other by Rep. J.D. Prescott, R-Union City, that would have immediately ended the emergency.
Instead, they passed HB 1123, a bill that allows legislative leaders to call the Indiana General Assembly into a special session after the governor has declared a statewide emergency – a special session that could last no more than 40 days and could only deal with legislation related to the emergency.
Holcomb vetoed the bill, saying it was unconstitutional as it violated the separation of powers laid out in the Indiana Constitution. But both the House and Senate voted overwhelmingly to override his veto, making HB 1123 state law, now in effect.
Holcomb filed suit, naming as defendants Indiana Senate President Pro Tempore Rodric Bray and Speaker of the House Todd Huston, both Republicans, saying that HB 1123 “will be disruptive to the state of Indiana” and that its very existence “has created uncertainty and confusion” and that if the controversy is not resolved soon, the consequences could be “severe.”
Rokita slapped this down in a statement to the media sent out on Friday along with a copy of his motion to the court to strike down the suit.
“Despite the suit’s allegations, the legislature’s actions have created no emergency or unique circumstances,” he said. “The new statute merely lays out a plan to address any future crisis and imposes no injury on anyone, including the governor, that would provide legal justification for a case to go forward under current Indiana statutes and case law.”
Rokita also defended the constitutionality of the new law.
“HEA 1123 is constitutional,” he said in the statement. “This new law leaves untouched the governor’s constitutional authority to call the General Assembly into special session, merely carrying out the General Assembly’s own constitutional authority to ‘appoint by law’ the day for ‘commencing’ its sessions and to ‘fix by law’ ‘the length and frequency of [its] sessions.’”
He went on to call the suit filed by the governor “a threat to the stability and proper functioning of our divided and limited government” saying if allowed to go forward, it would allow branches of government to sue one another at taxpayer expense “over abstract disagreements in government principles.”
“The Constitution does not authorize the judicial branch to resolve disagreements between the other branches over legal policy, even when those disagreements implicate constitutional disputes,” he said. “The legislature created the Office of the Attorney General precisely to resolve these sorts of disagreements over state legal policy.”
When contacted by The Center Square, attorney John Trimble, who filed the suit on behalf of Holcomb, declined comment, referring calls to the governor’s office. A spokesman for Holcomb did not immediately return a call seeking comment.
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