INDIANAPOLIS | A judge is likely to rule Friday on Attorney General Greg Zoeller's request to throw out the lawsuit state schools chief Glenda Ritz filed last month against the State Board of Education.
Deputy Attorney General David Arthur argued to Marion Circuit Judge Louis Rosenberg on Tuesday that under Indiana law, only the attorney general can prosecute or defend lawsuits involving state government unless he grants explicit, written permission for a state agency or official to use in-house or outside counsel.
Ritz, state superintendent of public instruction, did not obtain the attorney general's permission and therefore her lawsuit alleging the State Board of Education held an illegal meeting cannot proceed, Arthur said.
"There is no statute that gives the superintendent of public instruction the right to employ counsel to represent her in her official capacity," Arthur said. "Only he, the attorney general, is authorized to appear in court on behalf of state officials."
But Ritz attorney Michael Moore pointed to a seeming exception in the law for constitutional officers who lead a department, board or instrumentality of the state.
He said Ritz's constitutional role as superintendent of public instruction and statutory position as head of the Department of Education and chairwoman of the State Board of Education "fits the exception."
"There's some real concern about the attorney general having the unilateral, or exclusive, right to decide in all cases who gets to go to court," Moore said. "It's a duty, it's not an exclusive power."
Moore said the Democratic superintendent verbally requested permission prior to filing her lawsuit, but was denied by the Republican attorney general. The 10 members of the State Board of Education all were appointed by Republican governors.
The judge peppered both attorneys with questions during the hourlong hearing. He seemed to take special notice of Arthur's point that the Indiana Supreme Court previously has overturned two lower-court rulings that denied the attorney general's role as the state's exclusive courtroom representative.
Ritz sued the board Oct. 22, claiming it held an illegal meeting, without her knowledge, by drafting and submitting a letter requesting a legislative agency calculate 2011-12 school grades instead of her Department of Education.
Tony Walker, a board member from Gary, said circulating a letter via email is not a meeting and making a request does not meet the definition of "official action" requiring public notice under the state's Open Door Law. He has called Ritz's lawsuit "a political ploy."
The board's first meeting since Ritz sued its members is scheduled for Friday. Rosenberg's decision could be issued Friday while the board is in session.