INDIANAPOLIS – As a registered attorney on behalf of the state of Indiana – including Governor Holcomb, Senate President Pro Tempore Rodric Bray, Speaker of the House Todd Huston, Legislative Council, and Indiana General Assembly – the Attorney General’s office moved to bring an unauthorized lawsuit filed by attorneys who purported to represent the governor of Indiana in an attempt to invalidate a law passed by the General Assembly that regulates the timing of their own meetings during a future state of emergency.
Attorney General Todd Rokita
Despite the allegations of the lawsuit, the legislature’s actions did not create any emergencies or special circumstances – the new law merely provides a plan for dealing with future crises and does not impose on anyone, including the governor, any violation that would provide a legal justification for an ongoing case Forward in accordance with current Indiana law and jurisdiction. HEA 1123 is constitutional. This new law does not affect the governor’s constitutional power to convene the General Assembly for a special session by only exercising the constitutional power of the General Assembly to “appoint by law” the day for the “start” of its meetings and “the length determined by law” and frequency of [its] Meetings. ”
Finally, the proposed legal course of action by attorneys pretending to represent the governor’s office poses a threat to the stability and proper functioning of our divided and limited government as it would set a precedent for branches of government or civil servants to sue one others at the taxpayer’s expense for abstract disagreements on the principles. The Constitution does not authorize the judiciary to resolve differences of opinion between the other branches over legal policy, even if those differences of opinion imply constitutional disputes. The legislature created the Attorney General’s office to resolve these types of disagreements over state legal policy.
The following is an abbreviated, annotated analysis that supports the Office’s legal conclusions and actions.
The Indiana Attorney General’s duty is to protect the legal interests of the state in both the short and long term, regardless of any branch of state government. Compliance with sound legal principles that have served Indiana successfully for decades in a variety of exceptional circumstances is critical to maintaining individual freedom. Deviating from these principles, even in the midst of an emergency, including a pandemic, would worsen the boundaries between our branches of government and limit the powers they exercise. It is such a derogation to allow a section of the executive branch to raise disagreements against members of the legislature at the taxpayer’s expense. In this case, there is a real danger that the defense and immunity of the state will be undermined across the legal spectrum.
First, under Indiana law and jurisprudence, only the attorney general can determine and represent the legal position of the entire state government – Ind. Code Sections 4-6-2-1; Ind. Code § 4-6-3-2; Ind. Code § 4-6-1-6; Ind. Code § 4-6-5-3. And that exclusive authority is there for good reason – so that Indiana speaks with a single legal voice in court. With the creation of the General Public Prosecutor’s Office, the General Assembly resolved precisely this situation – two parts of the state government disagree on a legal issue. And, as the Indiana Supreme Court recognized more than forty years ago, the attorney general exists to resolve such disagreements and “establish general legal policy for government agencies.” State ex rel. Sendak v. Marion Cty. Superior Ct., 268 Ind. 3, 6-7, 373 NE2d 145, 148 (1978). The Attorney General’s office refuses to authorize an outside attorney to represent the governor here and is not affected by a conflict of interest, but instead fulfills its main purpose – to establish a uniform legal position for the entire state.
Second, the Indiana Supreme Court ruled that no state agency or incumbent should bring a declaratory action because allowing state agencies to use the judicial system to review any law passed in the state would encourage legislative irresponsibility and unnecessarily overload the law courts mainly to issue advisory opinions. “Ind. Fireworks Distrib. Ass’n v. Boatwright, 741 NE2d 1262, 1264-65 (Ind. Ct. App. 2001), aff’d, Indiana Fireworks Distrib. Ass’n v. Boatwright, 764 NE2d 208 (Ind. 2002).
Third, the executive lacks the power to bring a case as there is no imminent threat of a legally identifiable direct violation. An abstract claim to watered-down power is an inadequate basis for a lawsuit to keep the courts from being drawn into cross-industry political disputes. Raines v. Byrd, 521, US 811, 826-28 (1997).
Fourth, the members of the General Assembly are immune to lawsuits against the laws they pass. “The principle that the legislature is absolutely immune to liability for its legislative activities has long been recognized in Anglo-American law.” Bogan v Scott-Harris, 523, US 44, 48 (1998). Such legislative immunity ensures the legislative independence to make laws.
The governor has done a commendable job keeping our state safe through this pandemic. Now the General Assembly has decided to ensure its own role in future statewide emergencies – a law the governor denies. However, litigation in court would violate fundamental principles of law – principles that have served the people of Indiana well by providing the basis for divided and limited government and properly accountable policymaking and enforcement. If allowed to do so, a private attorney would represent only the present interests of a single official, the governor, and not the broader interests of the state and the will of the people in safeguarding the various claims, defenses, and immunities that a number of state and state interests Bodies protect activities from legal attacks.
Accordingly, my office has moved to remove the unauthorized lawsuit allegedly filed on behalf of the governor. In accordance with our legal policy, the Attorney General’s Office will defend HEA 1123 against an appropriate constitutional challenge filed in a timely manner by an outside party alleging a genuine, direct violation.