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Ritz, Zoeller state differing takes on legal action

About the same time Democratic state Superintendent Glenda Ritz held a press conference this afternoon to explain her reasons for suing the state board she was hit with a new challenge — Republican Attorney General Greg Zoeller filed a motion asking the court to drop her lawsuit, arguing that only Zoeller can take legal action on behalf of a state official.

Zoeller said he is willing to help broker a settlement between Ritz and her fellow board members. Short of that it will be up to a judge to decide whether Ritz has grounds to bring her case. Here are Ritz’s statement and Zoeller’s motion:

Ritz’s statement

Thank you for being here today. As you know, this Tuesday, I filed suit against ten members of the State Board of Education individually over their violation of Indiana’s Open Doors Law. Specifically, I believe that these members took official action outside of a public meeting, in secret, without any notice to the public, or even to myself.

Let me be clear, the letter that the members of the Board sent to Republican Legislative Leadership asking that LSA take over A-F grading was done without public notice, approval or even public opportunity to comment. I have always believed that fair, open and transparent decision-making is best and it is disappointing to learn that the Board took action in a different manner.

At this time last year, A-F grades had not yet been released, even though ISTEP data was available in May of 2012. Each year, parents can request a re-score of the applied skills portion of the ISTEP test. Because of difficulties with ISTEP this year, there were over 55,000 re-scores requested statewide, and those have to be re-scored by hand. The Department is expecting to receive the re-score data on November 5.

Because Indiana has such a high-stakes testing system, one changed score can affect not just a student or school, but multiple schools. My administration has consistently provided this needed data to schools and will continue to do so openly and as fast as possible.

When I was sworn in to office, I took an oath to uphold the laws of the State of Indiana. I take this oath very seriously and I was dismayed to learn that other members of the State Board have not complied with the requirements of the law. While I respect the commitment and expertise of members of the board individually, they have collectively over-stepped their bounds.

Since Tuesday, I have spoken with the Attorney General and he has indicated a desire to bring the parties together to seek resolution of this issue. I want to say that I appreciate his involvement and while I welcome the opportunity to reach resolution, I believe that the Board’s action violated Indiana law and that this case is important. In the event that out of court resolution is not possible, the courts may be the Department’s only recourse.

Finally, since my inauguration, I have worked tirelessly to communicate openly with the Board and the public. I did not take this action lightly, but my obligations as elected state Superintendent require it. I look forward to continuing to work to improve education for all Indiana students in a fair, transparent and collaborative manner.

Zoeller’s motion:

Gregory F. Zoeller, Attorney General, by Kenneth L. Joel, and David A. Arthur Deputies Attorney General, respectfully moves the Court to strike the appearances and complaint filed by Plaintiff Glenda Ritz’s counsel and states in Support:­

1. On October 22, 2013, Plaintiff, Glenda Ritz, in her official capacity as Chair of the Indiana State Board of Education and Indiana Superintendent of Public Instruction, sued the members of the Indiana Board 0f Education “in their individual capacities as members of the Indiana State Board of Education, and George Angelone in his official capacity as Director of Legislative Services Agency, seeking declaratory and injunctive relief under Ind. Trial Rule 57, Indiana Code chs. 5-14-1.5, 34-14-1 and 34-26-1.

2. Attorneys Bernice A. N. Corely and Michael G. Moore filed the Complaint.: en behalf’ of Plaintiff Glenda Ritz.

3. indiana Code 4-6-2-1 provides, in part: “[the] attorney-general prosecute and defend all suits that may be instituted by or against the state of Indiana.”

4. Without the consent of the Attorney General, no state official may or utilize private counsel to represent herself in an official capacity suit. See State ex rel. Sendak v. Marion County Superior Court, Room No. 2, 373 N.E.2d 145, 148 (Ind. 1978) (citing State ex rel. Young v. Niblack, 229 Ind. 596, 603, 99 N.E.2d 839, 841 (Ind. 1951) (“when the suit involves State officers or employees their official capacities, the outside attorney may only act as an amicus curiae unless the Attorney General consents.”

5. “No agency, except as provided in this act (Indiana Code Section 4-6-5-6) shall have any right to name, appoint, employ or hire any attorney, or special or general counsel to represent it or perform any legal service in behalf of such agency and state the written consent of the attorney-general.” Matter of Prop. Located af Marriott Inn, 505 Marriott Drive, Clarksville, Ind., 456 N.E.2d 444, 446 (Ind. Ct. App. 1983).

6. Therefore, as Chair of the Indiana State Board of Education and Indiana Superintendent of Public Instruction, the representation of plaintiff Ritz’s legal interests lies exclusively in the hands of the Attorney General.

6. The Attorney General has not authorized attorneys Bernice A. N. Corely and Michael G. Moore to appear on behalf of the State of Indiana, and any appearances should be stricken.

7. Absent such authorization, Indiana law prohibits the Chair of the Indiana State Board of Education and Indiana Superintendent of Public Instruction in her official capacity to employ counsel to seek declaratory and for injunctive relief.

8. Because attorneys Bernice A. N. Corely and Michael G. Moore have no authority to represent the Plaintiff in her official capacity, their appearances should be stricken, together with the complaint signed by them.

WHEREFORE, the Attorney General respectfully requests that the Court:

1) Strike the appearances, if any, of attorneys Bernice A. N. Corely and Michael G. Moore entered on behalf of Plaintiff, Glenda Ritz;

2) Strike the Complaint signed by attorneys Bernice A. N. Corely and Michael G. Moore;


3) Grant the Attorney General other relief just and proper in the premises.

Respectfully submitted,

Gregory F. Zoeller

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