AG’s office wins delay in suit challenging Hill’s eligibility

Editor’s note: This story has been updated with Marion Superior Judge Gary Miller’s Friday morning rulings.

A judge has stepped aside from a lawsuit challenging the eligibility of suspended Indiana Attorney General Curtis Hill, vacating the first hearing in the matter that had been scheduled for Friday morning. The action likely halts the lawsuit until after Hill’s 30-day suspension over sexual misconduct allegations expires Wednesday.

Lawyers for the Indiana Attorney General’s Office had asked for a change of judge late Thursday in the case. Lawyers for the AG’s Office — who also filed on behalf of Gov. Eric Holcomb — also asked to vacate the hearing.

The moves come after plaintiffs accused the AG’s office of stalling the case. The developments also come three days after Marion Superior Judge Gary Miller officially assumed jurisdiction after the first judge recused from the case. Plaintiffs in court filings this week had asked Miller to rule on Hill’s eligibility before the AG’s suspension concludes.  

Office of Indiana Attorney General chief counsel for litigation Patricia Orloff Erdmann moved Thursday evening for a change of judge under Indiana Trial Rule 76(b). That rule says in civil matters, any such request shall be granted, but parties are entitled to only one change of judge under the rule. This morning’s hearing should therefore be vacated, the AG’s office says.

Miller granted the motions early Friday.

Plaintiffs’ attorney Bill Groth said in an email his clients believe the AG’s office is conflicted in attempting to represent the interests of Hill and Holcomb, who less than a month ago asked the Indiana Supreme Court to clarify whether Hill’s 30-day suspension from the practice of law created a vacancy for Holcomb to fill. The Supreme Court refused to clarify the question.

“My clients just want to point out that Gov. Holcomb less than a month ago asked the Supreme Court to rule Mr. Hill’s disciplinary suspension for proven sexual assault created a vacancy in the office of attorney general that he was permitted — even required — to fill per the Indiana  Constitution and law,” Groth said in an email to IL. “Now inexplicably he and Mr. Hill are both being represented by the AG’s office” in  James Perron, Kathy Perron, Julia Vaughn, and John Windle v. Curtis T. Hill Jr., Aaron Negangard and Eric Holcomb, in his official capacity as Governor of the State of Indiana, 49D07-2005-PL-016774.

“Gov. Holcomb and Mr. Hill were clearly adverse just a few weeks ago. Unless the governor has waived the conflict, my clients are puzzled how the AG’s office can ethically represent them both in this lawsuit. And if the governor has waived that conflict, they question whether he was being disingenuous when he filed his petition with the Supreme Court seeking Hill’s ouster, and wonder whether he has since reversed his position.

“My clients continue to be perplexed why, if Gov. Holcomb was indeed as disturbed by Mr Hill’s misconduct as he claimed to be, he didn’t simply declare a vacancy in the office and appoint a replacement, as his lawyers told the Supreme Court both the law and the Constitution required,” Groth said.

“The position my clients have asserted in Perron is identical to that the governor asserted in his Supreme Court petition seeking Hill’s ouster, which gave the governor another opportunity to act on that legal/constitutional position. He not only ignored my clients’ offer, he must have agreed to allow the AG’s office to represent both him and Mr Hill in the Perron case despite the fact that his position was adverse to Hill’s, ostensibly waiving any conflict of interest.

“My clients and all Hoosiers expect the governor and attorney general to avoid even the appearance of impropriety, and both have failed to meet that high standard.”

Indiana Lawyer has reached out the governor’s office for comment.

Miller had scheduled an initial hearing for 11 a.m. Friday in the suit brought by four Indiana residents. They sued Hill and chief deputy attorney general Aaron Negangard on May 21, claiming Hill is no longer eligible to continue as AG due to his suspension from the practice of law related to allegations he groped a state lawmaker and made unwanted sexual advances toward three legislative aides.

The suit also argues Hill lacked the authority to appoint Negangard to oversee the office’s legal operations during the 30 days Hill was suspended beginning May 18. Hill has rebuffed calls from Holcomb and other state Republican leaders for his resignation and is being challenged by three other Republicans in his reelection bid.

Delegates to the Indiana Republican Convention this month will choose the party’s nominee.

Holcomb said after last month’s Supreme Court decision that he wouldn’t take further action toward possibly appointing a replacement for Hill.