Attorney General Todd Rokita is urging a Marion County judge to throw out the lawsuit filed Tuesday by Gov. Eric Holcomb that seeks to have a new Indiana law authorizing the General Assembly to convene during statewide emergencies without the governor's consent declared unconstitutional.
Rokita, a Republican originally from Munster, said in court documents Friday only the attorney general is empowered to file lawsuits on behalf of state officials, and he did not consent to Holcomb's lawsuit against the General Assembly or the governor's use of outside counsel to file it.
"A fundamental legal principle consistently understood and applied over several decades by both state and federal judges is that Indiana law vests the attorney general alone with authority to determine the state’s position on legal questions — including the constitutionality of House Enrolled Act 1123 — and to direct the state’s representation in court," Rokita said.
Moreover, Rokita said the Indiana Constitution protects members of the General Assembly from civil lawsuits while the Legislature is in session and requires any case against a state lawmaker be postponed at least 30 days beyond the Legislature's final adjournment for the year.
He noted Holcomb's signature on House Enrolled Act 1372 Monday set Nov. 15 as the adjournment date for this year's legislative session, instead of the usual April 29, to enable lawmakers to return in the fall to complete the once-a-decade process of redrawing legislative district boundaries that couldn't get done earlier due to COVID-19 tabulation delays at the U.S. Census Bureau.
"The purported lawsuit is a nullity if the court follows controlling legal precedents and strikes the unauthorized appearances and pleadings. But if it does not, this lawsuit cannot continue any further (even for consideration of additional defenses) for yet another reason: All of the defendants are legislators, and the legislature is still in session," Rokita said.
The governor's office did not immediately respond to a request for comment on Rokita's filing. It previously said outside counsel was retained to avoid a conflict of interest for Rokita, since he cannot represent the governor and General Assembly simultaneously.
Rokita said the governor ignoring the attorney general's statutory role in resolving legal policy disagreements is a "threat to the stability and proper functioning of our divided and limited government as it would establish a precedent for governmental branches or officials to sue one another, at taxpayer expense, over abstract disagreements in governing principles."
In any case, Rokita said he believes the emergency session law is constitutional because the General Assembly is entitled to appoint by law the day for commencing its sessions and to fix by law the length and frequency of its sessions.
Holcomb contends the Indiana Constitution permits only the governor to call special sessions of the General Assembly once the Legislature has adjourned for the year.
The Republican chief executive said the provisions of the new law, allowing the General Assembly to convene itself for up to 40 days whenever its 16-member Legislative Council decides action is needed to respond to a statewide emergency, infringes on the governor's special session role and violates the separation of powers required by the Constitution.
The emergency session law took effect April 15 after both chambers of the Republican-controlled General Assembly voted to override the governor's April 9 veto and enact the new law notwithstanding his objections.
House Democratic Leader Phil GiaQuinta, D-Fort Wayne, said it's shameful Hoosier tax dollars are being spent on this "needless power struggle" between Statehouse Republicans.
"Too many times, we have watched as our colleagues across the aisle have forced through legislation with questionable constitutionality. It's yet another symptom of the Republican infighting we've been seeing all session," GiaQuinta said.
A similar lawsuit challenging the constitutionality of the emergency session law was filed Friday by John Whitaker, a retired attorney in Indianapolis who served as special counsel to Republican former Gov. Robert Orr during the 1980s.
Whitaker said his interest, as a taxpayer and a citizen, is "to redress the unconstitutional usurpation of the executive powers of the governor of the state of Indiana by the Indiana General Assembly and the resulting costs to taxpayers of unconstitutional legislative sessions."
"The Indiana Constitution sets limits that the General Assembly cannot cross. One of those limits is in Article 4, Section 9 which grants the governor the exclusive power to convene a special session when, and only when, in his opinion, the public welfare requires it. Any attempt by the General Assembly to call a special session itself is a prohibited exercise by one department of a function of another department," Whitaker said.
Rokita said his office is prepared to defend the emergency session statute against any appropriate constitutional challenge timely brought by an external party who claims a real, direct injury.
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