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Indiana Legislative Update – Three Branches, Two Steps, One Continuing Conflict

Tension between the Executive, Legislative and Judicial branches is as old as the republic itself. Legislators adopt what they think is best, an agency implements the statute, and courts interpret the outcome in what is usually a “balancing of the equities.”  This age-old disagreement was recently on display as the Interim Committee on Government Reform Task Force met last week.

The two-year Government Reform Task Force, consisting of 10 members – 5 from the Senate and 5 from the House – led by Chair Sen Chris Garten (R-Charlestown) and Vice Chair Rep Stephen Bartels (R-Eckerty) met 3 times during the 2023 interim. The Task Force is directed to review external policies and standards of procedure implemented by agencies; study any other issues related to agency oversight, as determined by the Task Force; and develop recommendations for the general assembly. In the course of their work, the task force heard testimony regarding the state budget process, types of state revenues and funds, the administrative rulemaking process as amended by HEA1623-2023, and interim rulemaking for fee reductions and government reform recommendations. 

The Task Force’s report recommends legislation during the upcoming session that would attempt to alter portions of administrative rulemaking and regulatory review. Similar, unsuccessful efforts were made in the 2022 legislative session. 

The recommendation generating the most opposition from some Task Force members would direct courts reviewing an agency decision that they should not defer to the interpretation of the agency. This goes against a body of case law around judicial review of agency decisions commonly referred to as the “Chevron Two Step.” Aptly named for one of the leading cases, Chevron, and following cases, it guides courts to first look for ambiguity in statute, and second, determine if the agency’s decision is permissible. The assumption being that the agency is tasked with being the expert on matters within their regulatory purview. 

During discussion, Task Force members Senator Greg Taylor (D-Marion) and Representative Ed DeLaney (D-Indianapolis) noted that the recommendation is “a tremendous change in what courts do now” and ”completely inconsistent with our separation of powers.” They expressed concern that it was “pushing us in the direction of a full-time legislature.” DeLaney concluded by saying “I’m not terribly interested in what other states do. And I’m not terribly worried about ‘Washington run amok.’ I’m worried about what Indiana does and I think our system fundamentally works without overburdening the courts and without overburdening the legislature. I’m kind of happy with our system. I guess I’m being the conservative here.”  

The report with 12 total recommendations was approved with a 5-3 vote. 

In other court-related news, a Marion County court ruled yesterday that an Indiana law that limits who is eligible to run on the primary ballot is unconstitutional. The suit was brought by John Rust, who is running to succeed US Senator Mike Braun, who can’t be on the GOP ballot because his votes in the last 2 primary elections were not in the Republican primary – the party he wishes to represent. The judge noted that the law “unduly burdens Hoosiers’ long-recognized right to freely associate with the political party of one’s choosing and to cast one’s vote effectively.” The Indiana Republican party has already endorsed current Congressman Jim Banks who had this to say to the Capital Chronical after the ruling, “If Democrat John Rust gets his name on the ballot, then I look forward to comparing his liberal background and criminal price gouging scheme with my conservative record.”

And, finally, Indiana Attorney General Todd Rokita has had both good news and bad news recently. Last week, a Marion County judge rejected a motion to quash that had been filed by 3 health care providers in response to a March letter from the AG requesting information on services provided to transgender minors across the state. After only 3 facilities responded – of the 17+ entities – and didn’t actually answer the questions, AG Rokita filed suit in July. 

The bad news for Rokita is that he is under investigation again by the IN Attorney Disciplinary Commission just weeks after the IN Supreme Court publicly reprimanded him for violating professional conduct rules in his 2022 remarks about Dr. Caitlin Bernard after she provided abortion care for a 10-year-old Ohio rape victim. After the reprimand, Rokita issued a statement maintaining he did nothing wrong and had admitted to misconduct to “save a lot of taxpayer money and distraction.” The new complaints allege that the public statement  contradicted the affidavit Rokita agreed to under oath. It is now up to the Commission to dismiss the new complaint or advance them for further investigation. 

All of this will certainly be campaign fodder in 2024 after former Secretary of State candidate, Destiny Wells, announced she plans to run for Attorney General next year.