By BRIAN A. HOWEY

INDIANAPOLIS – While Gov. Eric Holcomb has governed with unprecedented Republican super majorities for more than four years, he continues to have an attorney general problem.

Ten months after Attorney General Curtis Hill was defeated for renomination at the Indiana Republican convention, his successor, Todd Rokita, vaulted into a legal showdown between Holcomb, Speaker Todd Huston and Senate President Pro Tempore Rod Bray this week by saying the governor doesn’t have standing to file a suit.

Holcomb asked a trial court judge to find key provisions of HEA1123 unconstitutional and to issue a permanent injunction to prevent them from being used. Holcomb has long maintained that only a governor can call the General Assembly into special session. “I took an oath to uphold the Constitution of the State of Indiana and I have an obligation do so,” Holcomb said Tuesday. “This filing is about the future of the executive branch and all the governors who will serve long after I’m gone,” Gov. Holcomb said of the action filed in Marion County Circuit Court.

Holcomb vetoed HEA1123 on April 9, saying, “I am vetoing HEA1123 because I firmly believe a central part of this bill in unconstitutional,” Holcomb said. “The legislation impermissibly attempts to give the General Assembly the ability to call itself into special sessions, thereby usurping a power given exclusively to the governor under Article 4, Section 9, of the Indiana Constitution. As such, it seeks to accomplish that which the Indiana Constitution clearly prohibits.

“This bill also violates the separation of powers principle enshrined in Article 3, Section 1, of the Indiana Constitution because it constitutes a legislative encroachment on the governor’s power as head of the executive branch from intrusion by another,” Holcomb continues. “If HEA1123 becomes law and can be used by the General Assembly, it will create a significant uncertainty and solidify the controversy over its constitutionality. This is a matter of immediate and substantial public interest.”

Holcomb added that any action taken during an unconstitutional special session “will be void and thus open and subject to legal challenges to set them aside.” He added that “avoidable legal challenges during a state of emergency will only serve to be disruptive to our states. I do want to be clear that I support efforts to increase partnership and collaboration between the legislative and executive branches during states of emergency.”

A few hours later, Attorney General Rokita suggested in a statement that Holcomb had no authority to file the suit. “Under Indiana law, only the attorney general may determine and advocate the legal position of all of state government,” Rokita said. “And that exclusive authority exists for good reason – so that Indiana speaks in court with a single legal voice.”

Rokita cited State ex rel. Sendak v. Marion Cty. Superior Ct., 268 Ind. 3, 6–7, 373 N.E.2d 145, 148 (1978) as legal precedent. “In declining to authorize outside counsel to represent the Governor here, the Office of the Attorney General is not beset by a conflict of interest but is instead fulfilling its core purpose – setting a single, unified legal position for the State as a whole,” he said.

The Governor’s press secretary Rachel Hoffmeyer acknowledged that Rokita denied the governor’s request to hire outside counsel (Weaver, IBJ). “We believe under the unique circumstance of this situation that his approval is not necessary,” Hoffmeyer said in an email. “The positions taken by the attorney general were known, discussed and fully evaluated. Gov. Holcomb made it known that he and his legal team disagreed with those positions which will be decided by the court.”

The Indiana Lawyer reported that Holcomb is being represented by Lewis Wagner attorneys John Trimble, A. Richard Blaiklock, Aaron Grant and Michael Heavilon. However, Rokita indicated he did not want the governor’s office to hire its attorneys. 

Rokita lays out case history

According to Rokita spokesman McKenzie Barbknecht, “HEA 1123 is constitutional, and it clearly lays out a plan to address future crises. Nothing in the new law curtails a governor’s Article 4 authority to call the General Assembly into session, and that same Article 4 specifically allows the General Assembly to ‘appoint by law’ the day for ‘commencing’ its sessions, and to ‘fix by law’ (and) ‘the length and frequency of [its] sessions.’ (Ind. Const. Art. 4 § 9). HEA 1123 does just that.

“In addition,” Barbknecht continued, “the balance of power ensures that no single branch of government can usurp the authority of another. The proposed legal course of action being pursued by attorneys purporting to represent the Office of the Governor is a threat to the stability and proper functioning of our branches of government as it would mean one branch could sue the other for any action or inaction. Accordingly, in keeping with our statutory directive, the Office of Attorney General will defend HEA 1123 against an appropriate constitutional challenge timely brought by an external party who claims a real, direct injury.”

Barbkneckt said “the duty of Indiana’s Attorney General is to protect the State’s legal interests, both short-term and long-term, independent of any one branch of state government. Adherence to well-grounded legal principles that have served Indiana successfully across a variety of extraordinary circumstances for decades is critical for ensuring individual liberty. Departing from those principles even in the midst of an emergency, including a pandemic, would degrade the boundaries separating our branches of government and limiting the powers they exercise. Allowing a part of the Executive branch to litigate a difference of opinion against members of the Legislative branch, all at taxpayer expense, is such a departure.

“There is a real danger of eroding the State’s defenses and immunities across the legal spectrum in the event this case is allowed to progress,” he concluded.

The Office of Attorney General cited case law:

First, under Indiana statutory and case law, only the attorney general may determine and advocate the legal position of all of state government—Ind. Code § 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 exists for good reason — so that Indiana speaks in court with a single legal voice. In creating the Office of the Attorney General, the General Assembly resolved precisely this sort of situation — where two parts of the state government disagree on a legal question. And as the Indiana Supreme Court recognized more than 40 years ago, the Attorney General exists to resolve such disagreements and “to establish a general legal policy for State agencies.” State ex rel. Sendak v. Marion Cty. Superior Ct., 268 Ind. 3, 6–7, 373 N.E.2d 145, 148 (1978). In declining to authorize outside counsel to represent the Governor here, the Office of the Attorney General is not beset by a conflict of interest but is instead fulfilling its core purpose — setting a single, unified legal position for the State as a whole.
 
Second, the Indiana Supreme Court has squarely held that no state agency or office holder may file a declaratory judgment action because allowing “state agencies to resort to the judicial system for review of every statute passed in the state would foster legislative irresponsibility and unnecessarily overburden the courts into issuing essentially advisory opinions.” Ind. Fireworks Distrib. Ass’n v. Boatwright, 741 N.E.2d 1262, 1264-65 (Ind. Ct. App. 2001), aff’d, Indiana Fireworks Distrib. Ass’n v. Boatwright, 764 N.E.2d 208 (Ind. 2002).

Third, the Executive branch lacks standing to bring a case because there is no immediate danger of a legally cognizable direct injury. An abstract claim of diluted power is an insufficient basis for a lawsuit, lest the courts be dragged into interbranch political disputes. Raines v. Byrd, 521 U.S. 811, 826–28 (1997).

Fourth, members of the General Assembly are immune from suit challenging the legislation they have passed. “The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law.” Bogan v. Scott-Harris, 523 U.S. 44, 48 (1998). Such legislative immunity ensures legislative independence to enact laws. 

“The Governor has done laudable work to shepherd our State through this pandemic,” Barkneckt said. “Now, the General Assembly has voted to ensure its own role in future statewide emergencies — a law the Governor contests. To proceed in court with litigation, however, would fracture foundational legal principles—principles that have served Indiana citizens well by providing the basis for divided and limited government and properly accountable policy making and execution. Private counsel represents only the present interests of a single official, the Governor, not the broader interests of the State in safeguarding the various claims, defenses and immunities that protect an array of state agencies and governmental activities from legal attack.”

Former Supreme Court justice Frank Sullivan disagreed with Rokita’s statement. “Resolving such disputes is a power that the Constitution entrusts to the judicial branch, not the attorney general, so the governor has acted properly by asking the judiciary to resolve this dispute,” Sullivan told the Statehouse File.

The Yergey’s case


Gov. Holcomb’s executive power limits were tested this past winter in the Yergy’s State Road BBQ, LLC vs. Wells County Health Department case recently. The lawsuit filed in Wells Circuit Court by Yergy’s alleges it was “aggrieved and adversely affected” when the Wells County Health Department shut down its eatery on Aug. 28 for violating the governor’s mask mandate and capacity limits. The department of health, the State of Indiana, and Gov. Holcomb were all named in the lawsuit.

But in the Yergy’s case, Attorney General Rokita took a very different position because he must represent the state’s position. You can tell Rokita is very concerned about how the Yergy’s case affects his standing with strident conservatives, who have been extremely critical of Holcomb’s emergency powers that shut down non-essential businesses and religious gatherings in the spring of 2020 due to the COVID-19 pandemic.

This latest legislative dustup gives him a chance to better appeal to the political right, but with Yergy’s still out there, he will struggle to thread that needle. The pro-Trump crowd viewed him as their main ally among statewide officials, but once in office he took several positions out of step with their ideology. Rokita seeks to shore up his position with that base, both generally and with 2024 in mind.

In a Twitter sequence on March 18, Rokita appeared to be defensive as conservatives assailed his position. “In the case of Yergy’s Barbecue vs. Holcomb and the State of Indiana, it is my statutory duty as the Attorney General and the state’s chief legal officer to vigorously defend the State of Indiana, its officials and its laws – even the laws that personally I may not like,” Rokita tweeted.

In a subsequent Tweet, Rokita added, “This is no different from the vigorous defense you would expect from your lawyer regardless of the circumstance. This lawsuit is about current state law, which I have always said needs to be updated – now more than ever. I also said I would work with the General Assembly to improve the law. This is exactly what the legislature is doing now and it’s what I have been doing, given my many discussions with lawmakers about their various ideas and questions.”

Finally, Rokita tweeted, “My expectation is that we will have a better law with clearer direction for a governor when it comes to longer duration emergencies and a constitutionally sound mechanism for participation by the people’s representatives during an emergency declaration. That is the real value of the Yergy lawsuit, regardless of the legal positioning being undertaken at this phase of it.”

2024 implications

That Rokita aspires to succeed Gov. Holcomb and seek the governorship in 2024 is no secret. Rokita has kept a robust schedule of political events since taking office. Just in the past week he has made political stops in Tipton and Johnson counties, Southport, at Avon HS and spoken at the Linton-Stockton Chamber of Commerce. He has launched the “Rokita Review” newsletter.

Rokita finished a distant third in the July 2016 Indiana Republican Central Committee caucus to replace Gov. Mike Pence after he resigned from the nomination to run for vice president, with Holcomb edging out U.S. Rep. Susan Brooks on a second ballot. In 2018, Rokita ran under the MAGA banner (though he did not receive an endorsement from President Trump) for the U.S. Senate with the motto “Defeat the Elite.” He finished second to now U.S. Sen. Mike Braun.

In his 2020 challenge to the embattled Attorney General Hill, Rokita trailed the incumbent on the first two ballots before winning the nomination with 52% of the vote.

Holcomb’s 4th veto

Gov. Holcomb vetoed a controversial E15 ethanol fuel labeling bill that sharply divided the Hoosier agriculture sector. It is his fourth veto since taking office in January 2017. In a letter to Sen. Bray, Holcomb said, “I am vetoing SEA303 due to its requirement of a duplicative label at every pump that disperses E15 blends of fuel in the state. The EPA already mandates that all E15 pumps have a label clearly advising consumers of the possible implications of using the fuel in certain engines. I find this additional layer of government unnecessary and confusing.”

Still awaiting action from the governor are SEA389 that would end protections for 60% of the state’s wetlands, SEA5 that would allow local elected officials to overrule public health mandates, and HEA1577, the medically dubious “abortion reversal” bill. SEA5 and HEA1577 haven’t reached Holcomb’s desk as of Tuesday, according to press secretary Rachel Hoffmeyer.