Indiana Supreme Court to stall governor's powers suit

The Associated Press

INDIANAPOLIS — Indiana’s attorney general asked the state Supreme Court on Monday to stall Republican Gov. Eric Holcomb’s lawsuit challenging the increased power state legislators gave themselves to intervene during public health emergencies following conservative objections to his COVID-19 actions.

The court filings come three weeks after a Marion County judge ruled against arguments from Republican Attorney General Todd Rokita’s office that he alone has the legal authority to represent the state in court and can decide whether the new law is allowed under the state constitution.

The attorney general’s office's petition to the Supreme Court renews arguments that the governor’s lawsuit shouldn’t be allowed to proceed because the Legislature technically is still in session despite concluding its regular business for the year in April. Marion County Judge Patrick Dietrick rejected putting off the case for that reason, which could prevent any court action until spring.

Holcomb’s lawsuit argues that the law passed this year over his veto by the Republican-dominated Legislature is unconstitutional because it gives lawmakers a new power to call themselves into a special legislative “emergency session” during statewide emergencies declared by the governor.

Holcomb and some legal experts maintain the state constitution allows only the governor to call the Legislature into special session after its annual session ends.

The attorney general’s petition centers on the constitution’s prohibition on legislators being subject to civil court action during General Assembly sessions, which typically would have formally adjourned this year in late April. The Legislature, however, remains legally in session awaiting meetings to vote on the redrawing of congressional and legislative election districts because of delays in receiving census data for that work.

The Marion County judge ruled such legislative immunity didn’t apply because the issue was a separation of powers dispute between the government’s executive and legislative branches.

Indiana University law professor Joel Schumm, who believes the emergency session law violates the state constitution, said he considered Rokita’s appeal a “longshot” and disagreed with his arguments that allowing the lawsuit to proceed would subject lawmakers to “extreme hardship.”

“There is no hardship at all,” Schumm said. “They are at home in their districts while the attorney general litigates a legal issue on their behalf.”

Rokita, a past Holcomb political rival who’s positioned himself as a combative conservative, described both the governor’s lawsuit and the Marion County judge’s ruling as violating the public’s constitutional protections.

“Allowing the Governor’s lawsuit to continue confers power on the judiciary, the branch of government that, by design, is least representative of the people,” Rokita said in a statement. “This power grab by the Governor and the authority it would give to the courts to interfere with political decisions should scare us all.”

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