For immediate release: Feb 13, 2012
Posted by: [Attorney General]
Contact: Bryan Corbin
Phone: 317.233.3970

Zoeller: Separation of powers precludes deposition of Governor

Indiana Supreme Court hears State's appeal of trial court order

INDIANAPOLIS - Asserting the constitutional separation of powers, the Indiana Attorney General's Office argued in the Indiana Supreme Court today that a trial court judge cannot order a sitting Governor to give a deposition in a lawsuit.

"The separation of powers in our state Constitution recognizes the coequal nature of the three branches of government. Under this principle the local judge should not exercise judicial authority over the head of the executive branch; and a law on the books for 160 years specifically protects a sitting Governor from being required to testify under a civil subpoena. To avoid setting a harmful precedent that would impact the day-to-day responsibilities of future governors, my office brings this important appeal to defend the institutional interests of state government," Indiana Attorney General Greg Zoeller said.

The Family and Social Services Administration (FSSA) is appealing a December 15 order of the Marion County Superior Court, which required Governor Mitch Daniels to be deposed in ongoing civil litigation between the FSSA and IBM over a canceled contract for welfare delivery services. A deposition is sworn testimony, taken out of court, with cross-examination.

The Indiana Attorney General's Office does not represent FSSA in the main lawsuit over the contract cancellation but is participating in the appeal of the lower court ruling - an appeal argued before the Indiana Supreme Court today. The Attorney General's Office appeared as an amicus curiae or "friend of the court" and Indiana Solicitor General Thomas M. Fisher argued the office's case today. FSSA is represented by outside counsel. The Supreme Court took under advisement the FSSA's interlocutory appeal of the deposition order and will rule at a later date.

While FSSA's appeal is pending, the Marion County Superior Court has stayed enforcement of its December 15 deposition order. Meanwhile other proceedings in the underlying lawsuit have continued in the trial court where trial is scheduled for February 27.

NOTE: An audio sound bite of Attorney General Zoeller's comment on the case is at this link. The Attorney General's amicus curiae brief filed in the Indiana Supreme Court is at this link. The brief cites state statute, originally enacted in 1852 and recodified as Indiana Code 34-29-2-1, which says a Governor is one of the elected officials not required to appear for testimony under a civil subpoena.

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