UPDATE: Judge dismisses Ritz’s Board of Education lawsuit

A judge has dismissed a lawsuit that Indiana Superintendent of Public Instruction Glenda Ritz filed against members of the State Board of Education, saying she didn’t have authority to go to court without representation from the attorney general.

However, Marion Circuit Judge Louis Rosenberg left open the opportunity for Attorney General Greg Zoeller to bring the suit back to court – and that Ritz might return to court if Zoeller refuses to represent.

“If her request is denied, that raises different issues than are now before the court,” Rosenberg said in his decision.

Meanwhile, four individuals have filed complaints with the public access counselor with the goal of taking the matter back to court.

The judge ruled three days after hearing oral arguments on whether the attorney general has the option of representing all state officials and agencies in court or the exclusive responsibility. Rosenberg’s decision favors the exclusive authority.

“The reason you don’t see one arm of state government’s executive branch sue another is because the statute and case law make it the attorney general’s responsibility to represent state agencies in court and harmonize their conflicting legal positions,” Zoeller said in a statement after the ruling.

“The judicial branch was not meant to oversee internal conflicts within the executive branch,” he said. “My office was not adverse to any of our clients but sought only to ensure proper legal procedures were followed.”

The decision did not address the underlying lawsuit, which accuses 10 members of the State Board of Education – who were all appointed by Republican governors – of violating the state’s Open Door Law by taking official action without meeting in public for a debate and vote.

Ritz read a statement about the ruling after adjourning a State Board of Education meeting on Friday.

“I have just heard the news. I have not seen the ruling so I obviously cannot comment on it specifically,” she said. “However I can say this: This case was filed because I believe the board took illegal action outside of the public arena and that needed to be stopped.

“I am disappointed in today’s ruling and concerned for all Hoosiers that have their lives affected by unelected boards, particularly those that act perhaps in secret,” she said. “Open door laws are very important in the state of Indiana. All commissions and boards use them and action should always be taken in a public way and I stand by that.”

The lawsuit followed a letter the board members signed last month that asked GOP legislative leaders to have the nonpartisan Legislative Services Agency calculate A-F school grades, even before the Department of Education had finished working on the data.

Attorneys for Ritz had argued in court that state law exempts the superintendent – and other officers created by the Indiana Constitution – from the requirement that she use the attorney general.

But Rosenberg did not find the argument persuasive. He said the Indiana Supreme Court has ruled in previous cases that the attorney general must represent state officers in court – or give written permission for another attorney to do so.

“This court is obliged to follow” those precedents, Rosenberg said.

Gordon Hendry, an education board member, said he was pleased by the judge’s decision.

“I hope that this is the end of it and we can move on in a collective fashion to focus on the critical issues facing Hoosier schools and school children,” Hendry said.

But Senate Minority Leader Tim Lanane, D-Anderson, said after the ruling that Zoeller “now has a duty to render an opinion” about the underlying case.

“It would go a long way toward reaching common ground on this issue,” Lanane said.

But Zoeller said “now that this question is behind us, we encourage everyone to work to resolve their disputes in a way that respects one another and the state we all serve.”

When asked if she wanted to try to continue legal action, Ritz said, “I want the issue to be resolved. So I don’t know. I haven’t talked to my legal staff at all about the ruling.”

But she might not have to go back to court or ask for help from Zoeller.

Indianapolis attorney William Groth said four identical complaints were filed Friday with the state’s public access counselor alleging that the Board of Education acted illegally. Those complaints – which came from Tony Lux, Ed Eiler, Cathy Fuentes-Rohrer and Julie Hollingsworth – ask the public access counselor to issue informal opinions on the case quickly “because they intend to file an action in Marion Circuit Court” challenging the state board’s actions.