UPDATE: Judge letting Indiana’s governor sue to block emergency law

Eric Holcomb

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.

Todd Rokita

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.

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7 thoughts on “UPDATE: Judge letting Indiana’s governor sue to block emergency law

  1. Judge Dietrick seems to have a point but does he consider what his ruling seems to approve? It claims that if he let stand the actions of the legislature then they would have more power than the Governor. What the judge seems to be saying though is that if some “nebulous” “emergency” arises, the Governor can appoint himself dictator for life, much as some of the other governors around the country have. The whole idea of “emergency powers” is for just that, an emergency and not one that goes on without end. In the situation that Governor Holcomb, as well as a number of other Governors, found themselves in, allowed them to simply make the state legislature completely irrelevant. Our entire governing system in this country both at state and federal levels is based on the idea that no one piece can become too powerful and every state (although different) and the federal government have checks and balances built into the system. What the COVID situation did was expose a serious flaw in state governments in their handling of health emergencies. Taking their lead for one miniature dictator (Anthony Fauci) who is un-elected, a number of governors around the country took the situation to mean they were promoted to masters of the universe. New legislation and laws need to be written to take into account situations like we just went through and a well thought out process that puts time limits and checks and balances so that everyone has a say in what gets done and on a timely basis. I can’t remember the last time I voted for a Democrat for Governor but I have to admit if our current governor was running, I might have a difficult time voting for him again.

    1. I don’t think the logical extension of this ruling is being able to appoint himself governor for life, but I see the logic in putting the governor in a position of superiority over an overzealous and slightly out of control AG, especially when the AG is making political statements rather than doing the job he is paid and was elected to do.

    2. Neil, the Indiana Legislature could have ended the emergency powers that Holcomb used during their 2021 session at any time. John Jacob filed the paperwork on organization day in November. Why didn’t they do so if the governor was acting as you said?

      Also, there was a candidate on the ballot – Don Rainwater- who promised to end the public health emergency on his first day in office. He got 11% of the vote.

      It would appear that your opinions aren’t shared by a majority of Indiana voters or elected representatives.

      We don’t need new laws. We need better politicians. If yours did such an awful job during the last session, vote them out.

    1. People like Rokita are the bread and butter of the Indiana GOP and have been for a decade. The Holcomb’s of the world are the rare reminders of what the GOP used to be.

  2. This just one of many examples that demonstrate that the AG should not be an elected official. Just like at the federal level, the Governor should appoint the AG so that during the term of any sitting Governor the state has a cohesive message as to the legal issues it will take, particularly as to national issues. Too many AGs drag Indiana into national class actions with their own political agenda in mind, and disputes between the AG and Governor such as the present one have arisen a number of times in my memory. This is not a partisan issue, it is good governance. The Indiana Constitution should be amended to call for appointment of an AG by the Gov.