State Superintendent Ritz's Lawsuit Against State Board of Education and LSA Raises Numerous Legal Questions

Glenda Ritz, Superintendent
of Public Instruction

The Indiana Law Blog, via NPR State Impact Indiana, linked to the lawsuit filed yesterday by Indiana Superintendent of Public Instruction Glenda Ritz against members of the Indiana State Board of Education and the Director of the Legislative Services Agency.   As way of background, the Education Board members have been unhappy for what they believe is an unnecessary delay in the issuance of A-F grades for the 2012-2013 school year.  The Education Board members, via a letter dated October 16, 2013 to Senate President Pro Tem David Long and Speaker Brian Bosma ask that those leaders intervene and appoint the development of the grades (using DOE information) to the LSA. Page 3 of the letter contains the signature of the nine board members, which most notably contains Democrat Gordon Hendry, whose wife is Democrat operative Jennifer Wagner.   Page 2 of the letter (which likely is quite brief) is missing from the materials.
By letter dated October 18, 2013, President Pro Tem Long and Speaker Bosma direct George Angelone, Executive Director of LSA to obtain data from the Department of Education, of course headed by Ritz, in order to begin developing the grades.

The lawsuit by Ritz, in which she alone is the Plaintiff, contains two counts, first, that the Board, sans Ritz, violated the open meetings law and, second, that the duty delegated to LSA is outside of its statutory authority.  Ritz's attorneys on the lawsuit are two attorneys who work for her at DOE.

The lawsuit raises a number of interesting issues.  Those issues along with some general observations are as follows:

• Attached to the eight page complaint are 19 pages of exhibits.  Complaints do not have to be accompanied by exhibits to "prove" certain things in the complaint. (There is an exception when one sues for breach of contract - the rules require you attach the contract.)  When an attorney is unnecessarily attaching exhibits like that it is generally about making certain information public through the vehicle of litigation.   This is particularly true when there is a concern that a complaint might be summarily dismissed and that information might not otherwise be made public.
• Is a "meeting" in cyberspace in which board members use modern technology to make a decision about how to proceed a meeting, i.e. a "gathering" for purposes of Indiana's Open Meetings law.
• Ritz is the only Plaintiff.  She is a state official, heading a state department, suing state officials and a state agency.  They are going to attack her standing to be a plaintiff as well as the DOE's ability to prosecute the lawsuit.  (More on that in a second.) I think it would have been wise to have also named a private (non-government official) as a Plaintiff.
• There is a statute that says that only the Attorney General's Office, or legal counsel he designates, is authorized to represent state officials in court.   Expect AG Greg Zoeller to swoop into the lawsuit and argue that the DOE attorneys had no authority to file the litigation.
• On a related note, this lawsuit presents AG Zoeller with the perfect opportunity to invoke the Zoeller doctrine, perhaps even expand its reach. That doctrine holds that the Indiana Attorney General is not only the attorney for the state of Indiana but also the client, i.e the decision-maker regarding how to proceed in a lawsuit  AG Zoeller summed up the Zoeller doctrine in a letter he wrote when he refused to defend Indiana's immigration law:  

  "Sometimes my state clients mistakenly believe they are responsible for making legal decisions about a case, as a private client who hires a private lawyer might be. In fact that responsibility rests not with the client but solely with the attorney general. Part of the AG’s job description is to reconcile conflicting legal views of multiple officials and harmonize our state’s legal position before the courts, so that we don’t have competing viewpoints creating chaos for judges in choosing which voice to listen to. Ultimately, my true client is our system of justice and the people of Indiana, rather than individuals who hold government positions"
  

  That the Zoeller doctrine is flat out wrong has been discussed by me elsewhere and is too cumbersome to discuss again here. But AG Zoeller will quite possibly go to Court and invoke the doctrine by saying that Ritz has no authority to take position on behalf of the State of Indiana, that only he is authorized to do that.
•  Moving to problems on the Defendants' side, do legislative leaders, without authority from the full membership have the authority to speak on behalf of the entire 150 member General Assembly in terms of delegating an  executive agency task to the LSA?
• Is determining A-F grades within the statutory scope of the authority of LSA?
• As Gary Welsh aptly notes on his blog, there is a substantial separation of powers question raised as to whether the legislature can take a statutory duty away from executive departments/agencies like DOE and State Board of Education and delegate that duty to LSA, a legislative agency.

My bet is on Zoeller intervening early on and asking that the lawsuit be dismissed for standing reasons and for the reason that the DOE has no authority to initiate litigation without his express approval as Attorney General of the State of Indiana.