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Indiana governor's lawyers push challenge to emergency law

Eric Holcomb
Posted at 6:25 PM, May 18, 2021

INDIANAPOLIS (AP) — Lawyers for Gov. Eric Holcomb derided the Indiana attorney general’s claim that he can block the governor from asking the courts to stop a new law giving legislators more authority to intervene during public emergencies.

Holcomb’s lawyers argue in a Monday court filing that Attorney General Todd Rokita is making “absurd” arguments that he alone has the legal authority to represent the state in court and to decide whether the new law is constitutional.

The legal dispute between the two Republicans stems from Holcomb’s lawsuit arguing that the law passed this spring by the GOP-dominated Legislature is unconstitutional because it gives lawmakers a new power to call themselves into a special legislative session during emergencies declared by the governor.

Holcomb’s lawyers claim in their Marion County court filing that the governor’s office was created by the state constitution to head the executive branch, while the attorney general was created by state law and can’t supersede the authority of the governor or the courts.

“It is a legal fiction created by the Attorney General to expand his authority beyond his statutory duties and powers,” wrote Holcomb’s lawyers, who are from the Indianapolis law firm Lewis Wagner. “This Court, not the Attorney General, is the proper constitutional body to determine whether (the new law) unconstitutionally grants the General Assembly a power exclusively given to the governor by our Constitution.”

Rokita’s office declined to comment Tuesday, saying it would respond soon in court.

Rokita asked Judge P.J. Dietrick this month to throw out the governor’s lawsuit because Rokita claimed that state law gives him alone the authority to determine whether the governor can even go to court.

Republican legislators backed the bill after criticism from many conservatives over the statewide mask mandate and other COVID-19 restrictions that Holcomb imposed by executive orders for nine months without the Legislature in session. Similar debates are occurring in several other states.

Rokita sought the Republican nomination to run for governor in 2016 but lost to Holcomb and is widely seen as hoping to succeed the term-limited governor after the 2024 election. He said during last year’s election campaign that he supported curtailing the governor’s emergency powers and he didn’t defend Holcomb from criticism of his coronavirus restrictions.

The lawyers hired by the governor’s office over Rokita’s objections filed the lawsuit last month after Republican legislators voted to override Holcomb’s veto of the bill that would allow the Legislature to call what the legislation refers to as an emergency session. Holcomb said he worried that any action taken by the Legislature during such a session could be challenged as illegal and lead to “significant uncertainty” during a time of emergency.

The governor’s lawyers also argue that Rokita is violating attorney ethics standards by claiming to represent both Holcomb and the Legislature in their constitutional dispute.

“Attorney General Rokita additionally seeks to usurp the role of the judiciary in this dispute. He posits that he, and he alone, is to determine the constitutionality” of the new law, Holcomb’s filing said. “And because he believes it is constitutional, he argues that he can prevent Governor Holcomb from seeking legal access to the courts. The Attorney General seeks to expand his authority into an area that is clearly the province of the judicial branch.”