Indiana constitutional fight means tussle among GOP leaders

The conservative pushback over Indiana’s COVID-19 restrictions is turning into a tangled legal standoff among Republicans who dominate the Statehouse.

Posted: May 3, 2021 5:08 PM

INDIANAPOLIS (AP) — The conservative pushback over Indiana’s COVID-19 restrictions is turning into a tangled legal standoff among Republicans who dominate the Statehouse.

Gov. Eric Holcomb is arguing that the GOP-controlled General Assembly is violating the state constitution with a new law giving itself the power to call a special legislative session during emergencies and wants the courts to decide who is correct.

Some legal experts question legal arguments that Attorney General Todd Rokita — a past Holcomb political rival — filed with a Marion County court on Friday asking a judge to throw out the governor’s lawsuit because state law gives him alone the authority to determine whether the governor can even go to court.

Lawyers hired by the governor’s office over Rokita’s objections filed the lawsuit last week after lawmakers voted to override Holcomb’s veto of the bill allowing what the law calls an emergency session. Holcomb said he worried any action taken by the Legislature during such a session could be challenged as illegal and lead to “significant uncertainty” during a time of emergency.

While Rokita maintains the law is constitutional, long-standing legal precedents are that such disagreements between the governor and the Legislature should be decided by the courts, said former state Supreme Court Justice Frank Sullivan, who spent 19 years on the court after serving as a top official in Democratic Gov. Evan Bayh’s administration.

“I think that the attorney general is simply not correct in holding himself up as the arbiter of what the Indiana Constitution means,” Sullivan said. “That’s the job of the judicial branch.”

Republican legislators pushed the bill after criticism from many conservatives over the statewide mask mandate and other COVID-19 restrictions that Holcomb imposed by executive order with the General Assembly not meeting for about nine months after its 2020 session ended. Similar debates are occurring in states across the country.

Republican legislative leaders said they expected a court challenge to the emergency session plan. They’ve maintained that the measure wasn’t “anti-governor” and have praised Holcomb’s handling of the coronavirus pandemic, which health officials say has killed more than 13,000 people in the state.

Rokita said in a Friday statement that “the governor has done laudable work to shepherd our State through this pandemic.” But while campaigning last year as an unabashed supporter of then-President Donald Trump he said he supported curtailing the governor’s emergency powers and avoided defending Holcomb from critics of his coronavirus restrictions.

The attorney general’s office said Monday that Rokita wasn’t available for an interview about the dispute. Rokita’s office said in a statement that his “motivation for moving the court to strike this lawsuit is to protect the state’s legal interests, both short-term and long-term, independent of any one branch of state government.”

Holcomb’s attorneys at the Indianapolis law firm Lewis Wagner didn’t reply to requests for comment Monday about the attorney general’s filing. The governor’s office said last week it went ahead without Rokita’s consent because “we believe under the unique circumstance of this situation, that his approval is not necessary.”

Indiana University law professor Joel Schumm said Rokita faces an ethical conflict presenting himself as the lawyer for both sides of the dispute and the attorney general position “is not a superhero with godlike powers” under state constitutional law.

“I certainly hope (this case) doesn’t make law that the attorney general can decide if there’s a dispute between branches of government that he can resolve it himself and keep courts from being involved,” Schumm said.

Looming over the legal dispute is the intra-Republican Party fight between Holcomb and Rokita, who is widely seen as hoping to succeed the term-limited governor after the 2024 election.

Rokita’s win in last year’s attorney general race was a political comeback after giving up a U.S. House seat for a losing 2018 bid for the Republican U.S. Senate nomination. He also unsuccessfully sought the party’s 2016 nomination for governor to Holcomb after then-Gov. Mike Pence became Trump’s vice presidential running mate.

Another lawsuit, meanwhile, has been filed against the Legislature challenging the new law by retired Indianapolis attorney John Whitaker, who was a special counsel to Republican Gov. Robert Orr during the 1980s. His lawsuit filed Friday argues the courts should stop the Legislature’s “unconstitutional usurpation of the executive powers” that could result in “costs to taxpayers of unconstitutional legislative sessions.”

Rokita’s office argued that Holcomb’s lawsuit against legislators isn’t allowed to proceed now under the state constitution because the General Assembly technically is still in session despite concluding its regular business for the year on April 22. That’s because lawmakers passed — and Holcomb has signed — a bill extending the deadline for this year’s legislative session from April 29 until Nov. 15 because of delays in receiving census data so they can approve new congressional and legislative election districts.

Sullivan, the former state Supreme Court justice, said Holcomb has done all he could to prevent going from court by vetoing the emergency powers bill and that the lawsuit ban cited by Rokita doesn’t apply to actions done by lawmakers in their official roles.

“The point of this section of the Constitution is to prevent a person from interfering in the business of the Legislature by dragging a legislator into court during session such that the legislator couldn’t attend the session because he or she has to be in court,” Sullivan said. “That’s not what’s going on here.”

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Illinois Coronavirus Cases

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Cases: 1366179

Reported Deaths: 24795
CountyCasesDeaths
Cook54690810144
DuPage907991285
Will75762993
Lake67398990
Kane58533778
Winnebago33359477
Madison30572520
McHenry28675288
St. Clair27899514
Peoria23185317
Champaign20699145
Sangamon18823234
McLean18225181
Tazewell16983291
Rock Island15029318
Kankakee14223210
Kendall1309294
LaSalle12585244
Macon10778200
DeKalb9901119
Vermilion9686132
Adams8474123
Williamson7442130
Whiteside7165172
Boone671774
Ogle612081
Grundy589976
Clinton576390
Coles568996
Knox5569150
Jackson503164
Henry500767
Livingston483185
Stephenson476983
Woodford476177
Effingham472972
Macoupin471583
Marion4471115
Franklin445975
Monroe435793
Jefferson4300120
Lee417453
Randolph413384
Fulton395357
Morgan390282
Logan388959
Montgomery372974
Bureau372782
Christian367973
Fayette317855
Perry317760
Iroquois302766
McDonough286447
Jersey269350
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Saline256454
Lawrence240625
Shelby229937
Union226140
Crawford212126
Bond205524
Cass199525
Jo Daviess181924
Clark180433
Warren180146
Pike179352
Ford179047
Wayne178053
Hancock176131
Carroll175636
Richland175240
Edgar170640
White169826
Washington164425
Moultrie161128
De Witt151725
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Piatt150014
Clay148143
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Johnson144515
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Massac134640
Wabash134612
Cumberland129019
Menard123712
Jasper115118
Marshall107418
Hamilton83515
Schuyler7607
Brown7106
Pulaski6867
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Henderson52414
Calhoun5182
Putnam4833
Scott4791
Alexander46811
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Hardin38612
Pope3224
Out of IL111
Unassigned02356

Indiana Coronavirus Cases

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Cases: 735462

Reported Deaths: 13480
CountyCasesDeaths
Marion1006161752
Lake54169976
Allen40913680
St. Joseph36301553
Hamilton35807408
Elkhart28815442
Tippecanoe22464219
Vanderburgh22367397
Porter18921310
Johnson18063381
Hendricks17310315
Clark13032192
Madison12754339
Vigo12497249
LaPorte12073215
Monroe11945170
Delaware10750187
Howard9985218
Kosciusko9463117
Hancock8367142
Bartholomew8096156
Warrick7797155
Floyd7686178
Grant7094174
Wayne7069199
Boone6740101
Morgan6606139
Dubois6165117
Marshall6108112
Cass5886105
Dearborn583178
Henry5779105
Noble565084
Jackson503473
Shelby494196
Lawrence4591120
Gibson436892
Harrison436472
DeKalb430485
Clinton428453
Montgomery425789
Whitley397939
Huntington394280
Steuben391057
Miami383768
Knox372890
Jasper372049
Putnam363360
Wabash355280
Adams342655
Ripley340870
Jefferson331881
White316854
Daviess298399
Wells292081
Decatur285992
Fayette281962
Greene280485
Posey272034
LaGrange268870
Scott267454
Clay261147
Washington242132
Randolph242081
Spencer232731
Jennings230949
Starke218954
Fountain213746
Sullivan212242
Owen203056
Jay197630
Fulton196140
Carroll190220
Orange184454
Perry184437
Rush174025
Vermillion170044
Franklin168435
Tipton163345
Parke146716
Pike135334
Blackford135132
Pulaski117345
Newton108834
Brown102641
Crawford101415
Benton99014
Martin89515
Warren82615
Switzerland7948
Union71410
Ohio57111
Unassigned0417