Mears says attorney general not representing Marion County’s interest in abortion lawsuit

In a side battle that has broken out in one of Indiana’s abortion lawsuits, Marion County Prosecutor Ryan Mears’ office is asserting Indiana Attorney General Todd Rokita is overstepping his authority and is making allegations about the quality of work done by the office of the state’s top lawyer.

Mears’ office is resisting the attorney general’s attempt to exercise the power to represent all the defendants in a lawsuit against Indiana’s new abortion law, which took effect Thursday. In a response in opposition to the attorney general’s motion to remove the outside counsel hired by the Marion County prosecutor, Mears’ office maintains Rokita would not represent the interests of Indianapolis residents.

“Prosecutor Mears is exercising his authority to retain counsel outside of the Office of the Indiana Attorney General for the instant action,” the response states. “His decision to do so is well founded and based upon his duty to act in the best interest of the citizens of Marion County and his prior experience with the current Attorney General in not adequately representing the interests of the Marion County Prosecutor.”

The dispute between the Democratic prosecutor and the Republican AG has erupted in the first case filed challenging Indiana’s new abortion ban, Planned Parenthood Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al. v. Members of the Medical Licensing Board of Indiana, et al., 53C06-2208-PL-001756. The Marion County prosecutor is one of seven county prosecutors named as defendants and, to date, is the only one to have hired outside counsel to provide representation.

Linda Pence and Suzannah Overholt, partners at SmithAmundsen in Indianapolis, have been retained by Mears’ office.

Earlier this week, the attorney general filed a motion to strike the appearances of outside counsel. Rokita’s office claimed to have the sole authority to represent the prosecutors because they are being sued in their official capacities as officers of the state.

However, Mears’ response — prepared by Pence and Overholtz — countered that the attorney general’s assertion is not supported by the language of state statutes.

The response maintains that while Indiana Code § 4-6-2-1 gives the attorney general the responsibility to defend actions brought against state officers, there are no provisions anywhere in Title 4 of the Indiana Code that “would lead to the conclusion” that county prosecuting attorneys are state officers.

Moreover, the response argues, I.C. 33-39-9-2(1) and -4 indicate a local prosecutor can hire outside counsel without the consent of the attorney general unless the prosecutor seeks reimbursement from the state for attorney fees.

“Finally, the Attorney General’s argument that the office ‘routinely represents prosecuting attorneys in state and federal court when they are defendants’ does not require a different outcome. … (W)hile a state official like Prosecutor Mears is entitled to a defense from the Attorney General in an action such as this, Prosecutor Mears is permitted by law to select his own counsel,” the response argues, citing I.C. 4-6-2-1.5(i).

As to why Mears’ office wants its own counsel, the prosecutor, in part, pointed to the representation the Attorney General’s Office provided in Jane Doe No. 1, et al., v. Attorney General of Indiana, et al., 1:20-cv-3247. That lawsuit claims Indiana’s tissue disposition laws — which require health care facilities to dispose of tissue from abortion and miscarriage procedures like the remains of a person — violates the First and 14th amendments.

Mears’ office claims the deputy attorney general assigned to the case contacted the prosecutor for a response to a discovery request. The Marion County prosecutor provided the responses, directed his staff to communicate with the AG and suggested revisions. Yet, contrary to what the deputy attorney general indicated, the input from Mears was not included in the final discovery responses.

“Prosecutor Mears does not want representation from the Office of the Indiana Attorney General because he does not believe the Attorney General will adequately represent the interests of the Office of the Marion County Prosecutor,” the response states.