Attorney General Rokita Moves Court to Strike Unauthorized Lawsuit

Today, acting as counsel of record on behalf of the State of Indiana – including Governor Holcomb, Senate President Pro Tempore Rodric Bray, Speaker of the House of Representatives Todd Huston, the Legislative Council, and the Indiana General Assembly – the Office of the Attorney General moved to strike an unauthorized lawsuit filed by attorneys purporting to represent the Office of the Indiana Governor in an attempt to invalidate a law enacted by the General Assembly addressing the timing of its own sessions during a future state of emergency.

Despite the suit’s allegations, the legislature’s actions have created no emergency or unique circumstances—the new statute merely lays out a plan to address any future crisis and imposes no injury on anyone, including the Governor, that would provide legal justification for a case to go forward under current Indiana statutes and case law. HEA 1123 is constitutional. This new law leaves untouched the Governor’s constitutional authority to call the General Assembly into special session, merely carrying out the General Assembly’s own constitutional authority to “appoint by law” the day for “commencing” its sessions and to “fix by law” “the length and frequency of [its] sessions.”

Finally, the proposed legal course of action being pursued by the attorneys purporting to represent the Office of the Governor is a threat to the stability and proper functioning of our divided and limited government as it would establish a precedent for governmental branches or officials to sue one another, at taxpayer expense, over abstract disagreements in governing principles. The Constitution does not authorize the judicial branch to resolve disagreements between the other branches over legal policy, even when those disagreements implicate constitutional disputes. The legislature created the Office of the Attorney General precisely to resolve these sorts of disagreements over state legal policy.

The following is an abbreviated, annotated analysis supporting the Office’s legal conclusions and actions.

The duty of the Indiana Attorney General is to protect the State’s legal interests, both short-term and long-term, independent of anyone 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 proceeds.

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 forty 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 officeholder 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. 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. If permitted, private counsel would represent only the present interests of a single official, the Governor, not the broader interests of the State and the will of the people in safeguarding the various claims, defenses and immunities that protect an array of state agencies and governmental activities from legal attack.

Accordingly, my office has moved to strike the unauthorized lawsuit purportedly filed in the name of the Governor. In keeping with our statutory directive, the Office of the Attorney General will defend HEA 1123 against an appropriate constitutional challenge timely brought by an external party who claims a real, direct injury.

On the 100th day of the Biden-Harris Administration, Environmental Protection Agency (EPA) Administrator Michael S. Regan issued the following statement:

“From day one, President Biden laid out a vision for America that included solving our most pressing problems, from tackling the climate crisis, to confronting racial inequities, to putting people back to work in good-paying jobs and ensuring public health is a priority. The EPA workforce has moved with urgency to deliver on this Administration’s agenda, and I could not be prouder of what we’ve accomplished together so far. We are listening to our scientists and putting the focus back on actions to confront climate change. We are centering environmental justice across the agency. We are investing in our water infrastructure because we know it creates jobs and revitalizes communities. And we are moving quickly to address PFAS contamination and protect people’s health. I am so grateful for the talented public servants at EPA who make this work possible and help us fulfill our mission every single day to protect human health and the environment.”

Here are a few highlights of EPA accomplishments in the first 100 days of the Biden-Harris Administration:

• Acted to Combat Climate Change: EPA recently took a major step toward restoring California’s waiver to enforce stringent greenhouse gas pollution standards for vehicles. Additionally, EPA relaunched the agency’s climate change website after the prior Administration had it removed. EPA also awarded approximately $10.5 million to replace older diesel school buses with cleaner buses, including for the first time, alt-fuel and electric buses, through its Diesel Emissions Reduction Act (DERA) funding.
• Restored Scientific Integrity: Administrator Regan issued a scientific integrity directive to all employees. He also reset key science advisory boards, the Science Advisory Board (SAB) and the Clean Air Scientific Advisory Committee (CASAC) to return to the standard process of incorporating a balanced group of expert advisors. Additionally, EPA is in the process of vacating the prior Administration’s exclusionary science rule, which placed inappropriate restrictions on the types of scientific studies that EPA could consider in its regulatory processes.
• Advanced Environmental Justice: After meeting with leaders from the National Environmental Justice Advisory Council, Administrator Regan issued an agency-wide message directing EPA offices to take specific actions to ensure environmental justice is incorporated across the agency’s work in communities overburdened by pollution. These directives include: strengthening enforcement of environmental laws, increasing engagement, building environmental justice considerations into regulations, and incorporating President Biden’s Justice 40 directive to consider and prioritize direct and indirect benefits to underserved communities.
• Funded Job-Creating Water Infrastructure: EPA has closed more than $1.3 billion in job-creating Water Infrastructure Finance and Innovation Act (WIFIA) loans to multiple communities. These investments will generate nearly 9,000 jobs and improve water quality and safety for nearly 4 million people. Additionally, EPA announced the availability of $6.5 billion in water infrastructure funding under the WIFIA and state infrastructure financing authority WIFIA (SWIFIA) program, which is estimated to create an additional 40,000 jobs.  EPA also announced the availability of $2.7 billion for State Revolving Funds (SRFs) to assists states, Tribes, and territories.
• Moved to Address PFAS Contamination: Administrator Regan issued a memorandum to EPA’s senior leadership creating a new council charged with building on the agency’s ongoing work to better understand and reduce the potential risks caused by these chemicals and to present recommendations to the Administrator within 100 days. EPA is also moving forward to establish a drinking water standard for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and reissued the final Human Health Toxicity assessment for Perfluorobutane Sulfonic Acid (PFBS) that had been compromised by political interference during the prior Administration.