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In the lawsuit attempting to block Indiana’s new abortion ban, a separate dispute is erupting between the Indiana Attorney General and the Marion County Prosecutor’s Office over the authority to hire outside counsel.
The lawsuit was filed Aug. 31 in Monroe Circuit Court by the American Civil Liberties Union of Indiana on behalf of abortion clinics in the state. Named as defendants are the members of the Medical Licensing Board of Indiana and the prosecutors in the seven counties, including Marion County, where abortions have been reported.
Ken Falk, legal director of the ACLU of Indiana, explained the defendants were chosen because they are the individuals who will enforce the new law. Specifically, the prosecutors are from the counties where abortions would most likely be performed.
On Sept. 6, Linda Pence and Suzannah Overholt of SmithAdmunsen in Indianapolis filed an appearance on behalf of the Marion County Prosecutor’s Office. Six days later, Indiana Attorney General Todd Rokita’s office filed an appearance on behalf of all the defendants.
Also, the state’s top lawyer filed a motion to strike the appearances of Pence and Overholt. In arguments reminiscent of its assertions in the dispute between the governor and the Legislature over who has the ability to call a special session, the attorney general claims to have the sole authority to represent the defendants including the prosecutors.
The motion contends that the prosecutor is a state officer, citing to rulings from the 7th Circuit Court of Appeals and the Court of Appeals of Indiana which identified county prosecutors as state officials. Consequently, the attorney general argues it is required under Indiana Code § 4-6-2-1(a) to defend state officials sued in their official capacities.
“… The attorney general statutes create an independent focal point for ‘a general legal policy for State agencies’ and thereby preclude other state officials from taking contrary position in court, lest they engender chaos and cause ‘substantial prejudice to the Attorney General’s efficacy in defending his statutory client[s],’” the motion stated, citing State ex rel. Sendak v. Marion County Superior Court, Room Nov. 2, 373 N.E.2d 145,149 (Ind. 1978).
According to an order from Special Judge Kelsey B. Hanlon of Owen Circuit Court, the parties are asking the court to rule on the motion to strike prior to the Sept. 19 hearing on the plaintiffs’ motion for preliminary injunction.
Hanlon accepted the appointment Sept. 9 to serve as special judge to preside over the case, Planned Parenthood of Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana, et al., 53C06-2208-PL-001756. Monroe Circuit Judge Holly Harvey was originally assigned the case but she recused herself and Monroe Circuit Judge Geoffrey Bradley declined to accept the case even though the parties requested his appointment.
Since the hearing on the preliminary injunction is scheduled to be held after the law takes effect on Sept. 15, the ACLU filed a motion for a temporary restraining order Monday. The plaintiffs are asking the court to temporarily enjoin Indiana’s abortion ban until a ruling is issued on the preliminary injunction motion.
“If allowed to go into effect (Senate Bill) 1, among other things, will prohibit the overwhelming majority of abortions in Indiana and, as such, will have a devastating and irreparable impact on the plaintiffs and, more importantly, their patients and clients,” the plaintiffs argue.
As for the attorney general’s motion to strike, the parties have agreed the court can address the issue without holding oral arguments.
The attorney general contends further in its motion that its role in representing state agencies has been “vindicated by the Indiana Supreme Court” numerous times. In particular, the motion cites to Holcomb v. Bray, 187 N.E. 3d 1268, 1288 (Ind. 2022) as holding the attorney general retains “exclusive power to both represent and direct litigation strategy for state agencies and the state.”
That case which, centered on the question of executive authority started in 2021 when Gov. Eric Holcomb sued the Indiana General Assembly. The dispute was ignited after the majority overrode the veto of House Enrolled Act 1123 and gave themselves the ability to call special sessions.
While the Supreme Court did acknowledge in its opinion the attorney general’s role in representing state agencies, the justices held state statute gives the governor the power to hire outside counsel “irrespective of the attorney general’s consent.”
Shortly after the governor’s complaint was filed in Marion Superior Court, the attorney general filed a motion to strike the lawsuit. Rokita argued only his office had jurisdiction over the matter and the governor’s office did not have authority to hire outside counsel without his consent.
“Under Indiana law, however, the Indiana Attorney General alone holds the authority to represent the State, State agencies, or State officials acting in their official capacities,” the attorney general argued in the memorandum supporting the motion to strike. “For this reason, State officials may hire outside counsel only with the express consent of the Attorney General, and here the Governor and the attorneys who purported to file a complaint on his behalf did not have the Attorney General’s consent to do so.”
The Supreme Court brushed aside the attorney general’s arguments and allowed the case to proceed. In the Holcomb opinion, Chief Justice Loretta Rush wrote that giving the attorney general the ability to grant or deny permission to file a lawsuit would upset the separation of powers.
“… Requiring the Attorney General to consent to the Governor bringing this action would effectively give that office veto power over any suit by the Governor it doesn’t agree with,” Rush wrote for the court.
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