Judge to Ritz's lawyers: How can she sue without Zoeller?

Ritz did not attend today’s hearing, at which her lawyers argued her suit against the State Board of Education should be allowed to proceed.

Circuit Court Judge Louis Rosenberg had a tough question for state Superintendent Glenda Ritz today: Why should he let her lawsuit against the Indiana State Board of Education go forward?

That was just one of the queries Rosenberg put before the department’s staff lawyers that Ritz used to represent her over Attorney General Greg Zoeller’s objections.

If Ritz’s legal team can’t convince Rosenberg that they have a right to stick with the case, the suit that riled both sides of the aisle in the statehouse could be over by next week.

Ritz last month sued the other 10 members of the Indiana State Board of Education in a protest of their push to move forward with calculating A to F grades for schools faster than Ritz had advocated. The lawsuit blew the lid off simmering tensions among Ritz and state board members, who disagree on a swath of education issues, from accountability to how to promote students between grades.

Ritz’s lawsuit targeted their latest disagreement. State board members have been frustrated that A to F grades for schools have not yet been released. But Ritz argues that problems with online testing last spring are the cause of the delay. Still, board members wrote a joint letter to legislative leaders asking them to have the Legislative Service Agency calculate the grades while Ritz was out of the country.

In her lawsuit, Ritz argued that the move violated the state’s transparency laws. By jointly signing a letter to lawmakers, she argued, the board effectively made a decision outside of a public meeting, which her suit contends is a violation of state law.

In court today, discussion focused on whether Ritz has the right to file a lawsuit at all. The case was originally made by Zoeller, who asked the court to remove Ritz’s attorneys from from the case, a step that would effectively end the suit altogether. Zoeller argued that Ritz could only initiate a lawsuit with assistance from his office.
Attorney Michael Moore, representing Ritz on behalf of the Indiana Department of Education, today countered that argument, saying that Ritz qualified for an exemption in state law that allows the state to use outside attorneys in certain cases. (Ritz did not attend the hearing.)

Assistant Indiana Attorney General David Arthur, representing Zoeller, said there are no exceptions. He cited two precedents in which he said courts had ruled the attorney general is the only state officer who can decide how Indiana initiates a lawsuit. In one 1978 case, courts rebuffed a governor’s effort to hire an outside lawyer in a case against the Alcoholic Beverage Commission or ABC.

When Moore pushed back, saying that even those cases left room for exceptions, the judge, Rosenberg, replied with skepticism. “It’s a tough case to get around from your point of view,” he said, referring to the ABC case. “I don’t see a difference between ‘the governor [vs.] the ABC’ versus ‘Glenda Ritz [vs.] the department of instruction.'”

Moore tried another line of argument. Even if Rosenberg does decide that Zoeller should represent Ritz, he said, the attorney general should take her case, which he has so far declined to do. He likened the case to an attorney representing husband and wife in a divorce case.

“That is essentially me, as a lawyer, telling one client, the wife, you can’t sue the husband, who is also my client,” Moore said. “The problem here is they are not allowing the superintendent to get past the gate. They are shutting it down.”

Ritz, the only Democrat who holds statewide office in Indiana, has ruffled feathers on the state board since her shocking upset of her predecessor, Republican Tony Bennett, last year. After taking office, many of her policy ideas have been rejected by Republicans who lead the legislature and Republican appointed state board members. Among the policy ides that Republicans have rejected are Ritz’s push to end state takeover of failing schools and her effort to drop an anti-“social promotion” rule that can block students from advancing to fourth grade if they fail a reading test.

The tensions have carried over to the state board. In recent meetings, Ritz has battled her fellow board members over who controls the meeting agenda, who should lead strategic planning and whether the board would even discuss some of her proposals.

A final decision from Rosenberg should come either this Friday or next week, his office said.

UPDATE: This post has been corrected to say that Glenda Ritz’s attorneys in this case are staff attorneys of the education department.