INDIANAPOLIS (Legal Newsline) - Indiana Attorney General Greg Zoeller argued on Monday that a trial court judge may not order a sitting governor to give a lawsuit deposition, asserting the constitutional separation of powers.

The Family and Social Services Administration is appealing a Dec. 15 order by the Marion County Superior Court, which required that Governor Mitch Daniels be deposed in ongoing civil litigation between IBM and FSSA over a welfare delivery services contract that was canceled.

"The separation of powers in our state constitution recognizes the coequal nature of the three branches of government," Zoeller said. "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."

Zoeller's office doesn't represent FSSA in the main lawsuit over the cancellation of the contract, but is participating in the appeal of the lower court ruling. The appeal was argued on Monday before the Indiana Supreme Court. Zoeller's office appeared as an amicus curiae, known as a friend of the court, and Indiana Solicitor General Thomas F. Fisher argued the court's case. FSSA's appeal is pending and is represented by outside counsel.

The Supreme Court took FSSA's interlocutory appeal of the deposition order under advisement and will rule on a later date. The Marion County Superior Court has stayed enforcement of an deposition order that was made Dec. 15. Other proceedings in the lawsuit underlying the case have continued in trial court and are scheduled to continue on Feb. 27.

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