A judge 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.
The attorney general’s office told the judge Tuesday it intended to appeal the decision to the state Supreme Court. Later Tuesday, the office said it filed a motion asking the court to certify the case for immediate appeal.
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 judge’s ruling did not address the constitutionality of the law. He scheduled a hearing on that dispute for Sept. 10.
The attorney general’s office said in a court motion filed Tuesday that hearing should be called off while it appeals the decision.
“If left unchallenged, the court’s order in this case threatens to tip the balance of powers and undermine the individual liberties of the citizens of this state,” Rokita said in a statement.
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.”
Holcomb’s office said it looked forward to the courts deciding the constitutionality of the law. “The outcome is important for Gov. Holcomb and how future governors who operate in times of emergency,” the governor’s general counsel, Joe Heerens, said in a statement.
Senate President Pro Tem Rodric Bray’s office declined to comment and messages for House Speaker Todd Huston weren’t immediately returned Tuesday. Both legislative leaders are 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.