Attorney General Todd Rokita is not as powerful or important as he thinks he is.
That's the ruling from Marion Superior Judge P.J. Dietrick on Rokita's attempt to insert himself in a separation of powers dispute between Gov. Eric Holcomb and the Indiana General Assembly.
The decision paves the way for Dietrick to decide later this year the validity of a new law permitting the Legislature to convene a 40-day "emergency session," without the governor's consent, to address urgent state needs when the governor declares a statewide emergency.
Holcomb contends House Enrolled Act 1123 runs afoul of the Indiana Constitution, which he believes allows only the governor to call lawmakers back to the Statehouse once the House and Senate have adjourned for the year — typically in April during odd-numbered years and in March during even-numbered years.
There's never been any doubt the emergency session law would end up in court.
In fact, Holcomb sued the General Assembly less than two weeks after lawmakers enacted the statute over the governor's veto.
At the time, the Republican sponsors of the new law and the Republican governor welcomed the third branch of government to resolve the constitutional question.
But then Rokita got involved.
The Republican attorney general, originally from Munster, claimed in court filings that when there's a dispute between two branches of government, even involving a constitutional claim, only he is empowered to decide it, not the courts.
In this case, Rokita said he agreed the Legislature was within its rights to establish an emergency session option. As a result, he said there's no basis for the governor to retain outside counsel for a lawsuit that's not needed because Rokita already decided it.
"A fundamental legal principle consistently understood and applied over several decades by both state and federal judges is that Indiana law vests the attorney general alone with authority to determine the state's position on legal questions — including the constitutionality of House Enrolled Act 1123," Rokita argued.
Not so fast, Dietrick said.
In his 19-page ruling, which includes the subhead "The attorney general overstates his role," Dietrick noted the governor has a duty to protect the Indiana Constitution and the executive powers granted to his office, which inherently authorizes the governor to use all means at his disposal, including the courts, to challenge any alleged usurpation of those powers by another branch of government.
The attorney general, whose office is established by statute and not created by the Constitution, "cannot unilaterally block a constitutionally created officer (the sitting governor) from taking those actions ascribed to him/her by the Indiana Constitution" — particularly in a separation of powers case, Dietrick said.
To do otherwise, he said, would create "an absurd result that could not have been intended by either the drafters of Indiana's Constitution, or the General Assembly; to wit: the very legislators who passed HEA 1123 recognized that whether it was constitutional should be decided by the courts, not Attorney General Rokita."
"Although the attorney general has some authority to take positions in litigation involving some state 'agencies,' that authority is not as extensive or vast as the attorney general claims," Dietrick said.
"That authority does not extend to controlling litigation regarding separation of powers disputes involving two separate branches of government, as is the case here."
Moreover, Dietrick said Rokita's efforts to insert himself in this case may have violated the Indiana Rules of Professional Conduct for attorneys, which bar lawyers from representing opposing parties in the same lawsuit.
"In this situation, Attorney General Rokita has an irreconcilable conflict of interest," Dietrick said. "The court takes no position on whether Attorney General Rokita's conflict requires him to completely recuse himself and his office from continuing to represent the defendants in this case."
Dietrick also rejected Rokita's claim the governor's lawsuit cannot proceed since the General Assembly technically is in session this year through Nov. 15, and members of the House and Senate generally are protected from civil process during legislative sessions.
He said allowing the Legislature to exploit its delayed adjournment to avoid court action in this case would make the legislative branch supreme over the executive and judicial branches, instead of Indiana maintaining three co-equal branches of government as required by the Constitution.
Rokita filed paperwork Monday afternoon seeking to immediately appeal the judge's ruling "in the interest of protecting Hoosiers."
"The Constitution belongs not to the governor, the legislature, or the attorney general, but to the people of Indiana," Rokita said. "If left unchallenged, the court's order in this case threatens to tip the balance of powers and undermine the individual liberties of the citizens of this state."
Joe Heerens, Holcomb's general counsel, said prior to Rokita's appeal announcement that he looks forward to a judge ultimately addressing the merits of the underlying constitutional question.
"The outcome is important for Gov. Holcomb and how future governors operate in times of emergency," Heerens said.