Indiana Attorney General Todd Rokita, a Republican, has asked a Marion Superior Court judge to throw out Gov. Eric Holcomb’s lawsuit against the Legislature, saying the attorneys who filed it had no authority to represent the Governor’s Office.
Holcomb, also a Republican, filed the suit Tuesday in an attempt to overturn a state law—approved over his veto—that essentially gives the General Assembly the authority to call itself into what it is calling an “emergency” session.
Holcomb has said for weeks that the Indiana Constitution gives the governor the sole authority to convene special sessions of the Legislature.
But Rokita says that only he—or an attorney he authorizes—can file a lawsuit on behalf of the state. And he said the attorneys who filed the suit—the firm of Lewis Wagner, including attorneys John Trimble, A. Richard Blaiklock, Aaron Grant and Michael Heavilon—were “purporting to represent” the governor.
In fact, Rokita said in his petition that he is actually representing the governor in the matter.
“Indiana law unambiguously provides that the attorney general of Indiana shall represent the state, its agencies, and state officers in their official capacities,” Rokita’s court filing reads. “The General Assembly has given the Office of the Attorney General ‘the sole responsibility for the legal representation of the state.’ … The attorney general has not authorized anyone outside the Office of Attorney General to represent Governor Holcomb, a state officer, in this action.”
Holcomb’s office initially asked Rokita for authority to hire an outside attorney, but the attorney general said no.
The governor’s former press secretary, Rachel Hoffmeyer, said this week that “we believe under the unique circumstance of this situation” that Rokita’s approval was not needed.
“The positions taken by the attorney general were known, discussed and fully evaluated,” she said. “Gov. Holcomb made it known that he and his legal team disagreed with those positions, which will be decided by the court.”
The court filings are part of a larger power struggle between the Legislature and the Governor’s Office over who has authority to make decisions during an emergency.
While legislative leaders have praised Holcomb’s actions during the pandemic, they say the new law is necessary to allow lawmakers to have input during extended emergency situations. Some lawmakers have grumbled about the extended period of time some of the governor’s restrictions remained in place.
Rokita also told the court that even if it does not disallow the attorneys and the lawsuit, it must continue the case until later this year. He wrote that the “Indiana Constitution provides that senators and representatives shall not be subject to civil process during a General Assembly session.”
The two top legislative leaders, Senate President Pro Tem Rodric Bray and House Speaker Todd Huston, both Republicans, are specifically named as defendants in the governor’s lawsuit.
Typically, lawmakers would have already adjourned their 2021 session. However, because the U.S. Census Bureau has not yet given the state the data it needs for redistricting—which the Indiana Constitution requires it to do this year—lawmakers took the highly unusual step of only recessing their session, with plans to reconvene in the fall.
The Governor’s Office did not immediately respond to a request for comment.