Governor’s lawsuit in holding pattern at Indiana Supreme Court

The governor’s lawsuit challenging the Legislature’s ability to call itself into session remains in a holding pattern while the Indiana Supreme Court addresses what one legal scholar calls the red herrings thrown into the case by the Indiana Attorney General.

In July, Attorney General Todd Rokita asked the Indiana justices to stay the proceedings in Holcomb v. Bray, 49D12-2104-PL-014068. Partly, the state’s top lawyer argued that since the 2021 Legislative session is still technically in session, as legislators are planning to return in September to redraw the legislative and congressional district maps, General Assembly leaders are immune from civil action until the Statehouse adjourns.

Indiana Gov. Eric Holomb sued the Legislature after his veto of House Enrolled Act 1123 was overridden. Holcomb asserts that new statute giving the General Assembly to call itself into special session violates the Indiana Constitution.

Inserting his office into the dispute, Rokita tried to block the litigation from moving; but the Marion Superior Court brushed aside his arguments. The Indiana Supreme Court also denied the attorney general’s petition for an emergency writ of mandamus in State of Indiana ex rel. Indiana General Assembly, et al. v. Marion Superior court, Civil Div. Nov. 12, et al., 21S-OR-354.

Holcomb submitted his brief on Aug. 6 opposing Rokita’s attempt to get a stay in the proceedings. The governor argues that contrary to the attorney general’s view, Statehouse leaders — along with the entire General Assembly and the Legislative Council — are not immune from the civil proceedings.

“As the trial court held, governors have a constitutional duty, under Art. 5 § 16 (the Take Care Clause), to protect and uphold the Indiana Constitution,” the governor stated in his brief. “With respect to HEA 1123, Gov. Holcomb can satisfy his constitutional obligations only by bringing a lawsuit to challenging its constitutionality. If, as the Realtors argue, they are immune from suit pursuant to the Speech and Debate Clause, then there is a direct conflict between the Take Care Clause and the Speech and Debate Clause.”

The governor contends that the trial court correctly determined how to reconcile these conflicting provisions. Notably, the court found the granting immunity to the relators in this case would alter the balance of Indiana’s three branches of government by elevating the legislative branch above the executive branch.

Speaking at a recent panel discussion of the case held by the Indianapolis Bar Association, retired justice and Indiana University Robert H. McKinney School of Law professor Frank Sullivan described the immunity argument as one of several red herrings Rokita has thrown into this dispute.

“We’ve got the attorney general, throwing in all of these extraneous issues, keeping us from getting to the merits,” Sullivan said. “It’s very unclear to me whether the legislature supports the Attorney General in this or is just stuck sitting in the weeds waiting to see what happens next.”

Citing the Indiana Supreme Court’s ruling in Tucker v. State of Indiana, 218 Ind. 614 (Ind. 1941) 35 N.E.2d 270, Sullivan predicted the governor will get a favorable ruling in this case.

“There, the court held that the Legislature’s action deprives the governor of his legitimate constitutional authority, and thereby violated the separation of powers clause,” Sullivan said. “I think the court will similarly hold that the Legislature’s action deprives the governor of his legitimate constitutional authority under Article 4 § 9 and thereby violates separation of powers.”

Ed Feigenbaum, attorney and publisher of Indiana Legislative Insight for Hannah News Service, said this case is putting Rokita in a familiar position of being at the forefront of political issues. As Secretary of State, Rokita successfully advocated for the nation’s first voter ID law. Now, in Holcomb v. Bray, he is addressing the question of who determines Indiana’s legal policy.

“He really has been somewhat of a polarizing figure. He’s not done things quite as gently as some of his Republican predecessors in office,” Feigenbaum said of Rokita, noting he has endeared himself to social conservatives through his support of former President Donald Trump’s policies and being general opposed to Holcomb. “… As one former statewide Republican official said to me, ‘Ask yourself, has he done anything that won’t help him with Republican primary voters?’”