Judge letting Indiana’s governor sue to block emergency law

Virus Outbreak-Indiana
Posted at 2:10 PM, Jul 06, 2021

INDIANAPOLIS (AP) — A judge has has sided with Indiana’s governor in a dispute between top state Republicans over whether he can proceed with a lawsuit challenging the increased power state legislators gave themselves to intervene during public health emergencies such as the COVID-19 pandemic.

The Marion County judge’s ruling rejects arguments from Republican Attorney General Todd Rokita that he alone has the legal authority to represent the state in court and can decide whether the new law is allowed under the state constitution, despite GOP Gov. Eric Holcomb’s objections.

Judge Patrick Dietrick wrote in the ruling dated Saturday that such an interpretation would give the attorney general greater power than Holcomb as head of the state’s executive branch in protecting the governor’s constitutional powers.

“This is an absurd result that could not have been intended by either the drafters of Indiana’s Constitution or the General Assembly,” Dietrick said.

Holcomb’s lawsuit argues that the law passed this spring by the Republican-dominated Legislature is unconstitutional because it gives lawmakers a new power to call themselves into a special legislative “emergency session” during statewide emergencies declared by the governor.

Holcomb and some legal experts maintain the state constitution only allows the governor to call the Legislature into special session after its annual session ends.

Republican legislators voted in April to override Holcomb’s veto of the emergency session law that emerged following criticism from many conservatives over the statewide mask mandate and other COVID-19 restrictions that Holcomb imposed by executive orders.

The attorney general’s office didn’t immediately reply to a request for comment Tuesday on the judge’s ruling and whether it would appeal the decision. If the lawsuit is allowed to proceed, it is widely expected to ultimately be decided by the state Supreme Court.

The judge’s ruling did not address the constitutionality of the law. He scheduled a hearing on that dispute for Sept. 10.

Rokita, who unsuccessfully challenged Holcomb for the 2016 Republican nomination for governor, has argued that state law gives him the legal authority to turn down Holcomb’s request to take the dispute to court. His office’s court filings repeatedly called the governor’s private lawyers “unauthorized counsel” in asking for them to be removed from the case.

Dietrick ruled that Rokita cannot “unilaterally block” the governor from taking actions to defend his constitutional powers or force Holcomb to rely on private citizens to file court actions against potentially unconstitutional laws.

“A sitting governor is sworn to uphold the Indiana Constitution,” Dietrick wrote. “He or she cannot abdicate that duty to private citizens. Nothing in the Indiana Constitution suggests otherwise.”

Neither Holcomb’s office nor his lead lawyer with the Indianapolis firm Lewis Wagner immediately commented Tuesday on the ruling. Messages seeking comment were left for the offices of Senate President Pro Tem Rodric Bray and House Speaker Todd Huston, who are both defendants in the lawsuit.

Bray and Huston have maintained that the measure wasn’t “anti-governor” and praised Holcomb’s handling of the coronavirus pandemic, which health officials say has killed nearly 14,000 people in the state.

The judge agreed with arguments from Holcomb’s lawyers that attorney ethics rules prevented Rokita from trying to represent both the governor and the Legislature in their constitutional dispute.

The judge cited Rokita’s statements that he considers the law constitutional in finding that the attorney general “has an irreconcilable conflict of interest.”

Dietrick also rejected arguments from Rokita that the lawsuit couldn’t move forward now under state law because the General Assembly technically is still in session despite concluding its regular business for the year on April 22. The judge ruled such legislative immunity didn’t apply since the issue was a separation of powers dispute between the government’s executive and legislative branches.