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Indiana constitutional fight means legal standoff between governor, attorney general

Some legal experts question legal arguments that Attorney General Todd Rokita — a past Holcomb political rival — filed with a Marion County court on Friday asking a judge to throw out the governor’s lawsuit because state law gives him alone the authority to determine whether the governor can even go to court.

Posted: May 4, 2021 2:01 PM

INDIANAPOLIS (AP) — The conservative pushback over Indiana’s COVID-19 restrictions is turning into a tangled legal standoff among Republicans who dominate the Statehouse.

Gov. Eric Holcomb is arguing that the GOP-controlled General Assembly is violating the state constitution with a new law giving itself the power to call a special legislative session during emergencies and wants the courts to decide who is correct.

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Some legal experts question legal arguments that Attorney General Todd Rokita — a past Holcomb political rival — filed with a Marion County court on Friday asking a judge to throw out the governor’s lawsuit because state law gives him alone the authority to determine whether the governor can even go to court.

Lawyers hired by the governor’s office over Rokita’s objections filed the lawsuit last week after lawmakers voted to override Holcomb’s veto of the bill allowing what the law calls an emergency session.

Holcomb said he worried any action taken by the Legislature during such a session could be challenged as illegal and lead to “significant uncertainty” during a time of emergency.

While Rokita maintains the law is constitutional, long-standing legal precedents are that such disagreements between the governor and the Legislature should be decided by the courts, said former state Supreme Court Justice Frank Sullivan, who spent 19 years on the court after serving as a top official in Democratic Gov. Evan Bayh’s administration.

“I think that the attorney general is simply not correct in holding himself up as the arbiter of what the Indiana Constitution means,” Sullivan said. “That’s the job of the judicial branch.”

Republican legislators pushed the bill after criticism from many conservatives over the statewide mask mandate and other COVID-19 restrictions that Holcomb imposed by executive order with the General Assembly not meeting for about nine months after its 2020 session ended.

Similar debates are occurring in states across the country.

Republican legislative leaders said they expected a court challenge to the emergency session plan. They’ve maintained that the measure wasn’t “anti-governor” and have praised Holcomb’s handling of the coronavirus pandemic, which health officials say has killed more than 13,000 people in the state.

Rokita said in a Friday statement that “the governor has done laudable work to shepherd our State through this pandemic.”

But while campaigning last year as an unabashed supporter of then-President Donald Trump he said he supported curtailing the governor’s emergency powers and avoided defending Holcomb from critics of his coronavirus restrictions.

The attorney general’s office said Monday that Rokita wasn’t available for an interview about the dispute. Rokita’s office said in a statement that his “motivation for moving the court to strike this lawsuit is to protect the state’s legal interests, both short-term and long-term, independent of any one branch of state government.”

Holcomb’s attorneys at the Indianapolis law firm Lewis Wagner didn’t reply to requests for comment Monday about the attorney general’s filing. The governor’s office said last week it went ahead without Rokita’s consent because “we believe under the unique circumstance of this situation, that his approval is not necessary.”

Indiana University law professor Joel Schumm said Rokita faces an ethical conflict presenting himself as the lawyer for both sides of the dispute and the attorney general position “is not a superhero with godlike powers” under state constitutional law.

“I certainly hope (this case) doesn’t make law that the attorney general can decide if there’s a dispute between branches of government that he can resolve it himself and keep courts from being involved,” Schumm said.

Looming over the legal dispute is the intra-Republican Party fight between Holcomb and Rokita, who is widely seen as hoping to succeed the term-limited governor after the 2024 election.

Rokita’s win in last year’s attorney general race was a political comeback after giving up a U.S. House seat for a losing 2018 bid for the Republican U.S. Senate nomination.

He also unsuccessfully sought the party’s 2016 nomination for governor to Holcomb after then-Gov. Mike Pence became Trump’s vice presidential running mate.

Another lawsuit, meanwhile, has been filed against the Legislature challenging the new law by retired Indianapolis attorney John Whitaker, who was a special counsel to Republican Gov. Robert Orr during the 1980s.

His lawsuit filed Friday argues the courts should stop the Legislature’s “unconstitutional usurpation of the executive powers” that could result in “costs to taxpayers of unconstitutional legislative sessions.”

Rokita’s office argued that Holcomb’s lawsuit against legislators isn’t allowed to proceed now under the state constitution because the General Assembly technically is still in session despite concluding its regular business for the year on April 22.

That’s because lawmakers passed — and Holcomb has signed — a bill extending the deadline for this year’s legislative session from April 29 until Nov. 15 because of delays in receiving census data so they can approve new congressional and legislative election districts.

Sullivan, the former state Supreme Court justice, said Holcomb has done all he could to prevent going from court by vetoing the emergency powers bill and that the lawsuit ban cited by Rokita doesn’t apply to actions done by lawmakers in their official roles.

“The point of this section of the Constitution is to prevent a person from interfering in the business of the Legislature by dragging a legislator into court during session such that the legislator couldn’t attend the session because he or she has to be in court,” Sullivan said. “That’s not what’s going on here.”

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 751242

Reported Deaths: 13795
CountyCasesDeaths
Marion1032931788
Lake556911009
Allen41692692
St. Joseph36990565
Hamilton36588417
Elkhart29398461
Tippecanoe22901226
Vanderburgh22556400
Porter19356325
Johnson18471389
Hendricks17682317
Clark13226195
Madison13149344
Vigo12614253
LaPorte12419221
Monroe12207176
Delaware10966198
Howard10321225
Kosciusko9630121
Hancock8576146
Bartholomew8169157
Warrick7860156
Floyd7811180
Grant7242179
Wayne7162201
Boone6966103
Morgan6761141
Dubois6218118
Marshall6209116
Cass6016110
Henry5900110
Dearborn589878
Noble581488
Jackson509076
Shelby501496
Lawrence4742122
Gibson444894
Clinton442355
Harrison441875
DeKalb439885
Montgomery438090
Whitley406543
Huntington402681
Steuben400159
Miami395269
Jasper388054
Knox375991
Putnam372960
Wabash361983
Ripley347170
Adams345555
Jefferson335886
White331953
Daviess3033100
Wells295281
Decatur289992
Greene286885
Fayette284864
Posey273835
LaGrange273072
Scott270156
Clay267148
Washington246036
Randolph244783
Jennings235349
Spencer234531
Starke228058
Fountain220948
Sullivan214643
Owen211858
Fulton202942
Jay200932
Carroll193620
Orange188255
Perry187237
Rush175926
Vermillion174844
Franklin170335
Tipton166246
Parke149416
Pike138234
Blackford136232
Pulaski120647
Newton113936
Brown104243
Crawford102516
Benton101714
Martin91715
Warren84015
Switzerland8148
Union72810
Ohio57911
Unassigned0420

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 1108736

Reported Deaths: 20166
CountyCasesDeaths
Franklin1287201467
Cuyahoga1157922211
Hamilton813971250
Montgomery525481043
Summit484271001
Lucas43353820
Butler39013606
Stark33332929
Lorain25672505
Warren24591303
Mahoning22370603
Lake21207388
Clermont20117253
Delaware18852136
Licking16662222
Fairfield16574204
Trumbull16548482
Medina15610271
Greene15281248
Clark14237306
Wood13292200
Portage13251215
Allen11913239
Richland11605211
Miami10849225
Wayne9141223
Columbiana9032230
Muskingum8906135
Pickaway8663122
Tuscarawas8649250
Marion8642138
Erie8056165
Ashtabula7160179
Hancock6998132
Ross6944161
Geauga6838151
Scioto6534106
Belmont6157174
Union584549
Lawrence5731102
Jefferson5678158
Huron5546122
Sandusky5442126
Darke5420129
Seneca5348128
Washington5319109
Athens523960
Auglaize502187
Mercer487385
Shelby476895
Knox4571112
Madison444266
Ashland435797
Putnam4336103
Defiance432399
Fulton432074
Crawford4037110
Brown402461
Logan387677
Preble3855105
Clinton379166
Ottawa373681
Highland359665
Williams348278
Champaign344759
Guernsey324953
Jackson318254
Perry297350
Morrow291840
Fayette285450
Hardin275265
Henry273467
Holmes2701101
Coshocton269060
Van Wert247264
Adams243256
Pike242835
Gallia240650
Wyandot234556
Hocking220563
Carroll197348
Paulding176542
Meigs148440
Monroe136344
Noble136239
Harrison114138
Morgan109624
Vinton85517
Unassigned03
Fort Wayne
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Angola
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Huntington
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Hi: 88° Lo: 70°
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Decatur
Partly Cloudy
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Van Wert
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