The Journal Gazette
Tuesday, July 27, 2021 1:00 am

Rokita turns to justices for help

Wants lower court off Holcomb lawsuit

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – Indiana Attorney General Todd Rokita on Monday filed a writ of mandamus directly with the Indiana Supreme Court – an attempt to bypass a trial court that has ruled against him.

He wants the Indiana Supreme Court to order the Marion Superior Court hearing the case to “cease all proceedings” in the lawsuit.

A narrow category of cases may be filed directly with the Supreme Court, and the attorney general's office is arguing that some of the issues raised in the Gov. Eric Holcomb's lawsuit against the legislature meet that standard, a news release said.

“We are asking the Supreme Court to stop the executive branch power grab underway by preserving the constitutional protections that are meant to preserve Hoosiers' individual liberty and that have served Indiana well for more than 100 years,” Rokita said.

“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. This power grab by the governor and the authority it would give to the courts to interfere with political decisions should scare us all.”

Holcomb sued the Indiana General Assembly after it passed a bill allowing lawmakers during a statewide emergency to call itself in for a special session. But the Indiana Constitution gives that power to the governor. He alleges that House Enrolled Act 1123 is unconstitutional.

The bill was passed in response to the emergency orders Holcomb issued during the pandemic, which included mask mandates and limits on restaurant capacity.

His office didn't respond to a request for comment.

Rokita has tried to stop the suit on grounds that Holcomb can't sue without the attorney general's permission. A Marion County judge ruled against that argument and denied a petition for an interlocutory appeal to the Indiana Court of Appeals.

Rokita also has sought a continuance based on the General Assembly still being in session. The legislature didn't adjourn as usual in April because members must redistrict in September after census data arrive. But they are not meeting or currently working.

A hearing in Marion Superior Court is scheduled for Sept. 10 on the merits of the case – whether the legislature overstepped its constitutional powers.

Rokita's office argues that going directly to the Indiana Supreme Court now should help save taxpayers from costly litigation at the lower court level on a case that will likely end up before the Supreme Court anyway.

“The attorney general's office was created to enable the state to speak with one voice on legal matters,” Rokita said. “The reasons are straightforward: allowing the branches to sue one another or individual office holders to do the same, whenever they want, will add significant costs for taxpayers as well as create confusing and unsettled policies for all Hoosiers.”

Joel Schumm, a law professor at the Indiana University Robert McKinney School of Law in Indianapolis, said writs are rarely granted.

Indiana court rules even say that such actions are “viewed with disfavor” and “may not be used as substitutes for appeals.”

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