Fight over special session bill arrives at Indiana Supreme Court

Editor’s note: This article has been updated.

The Indiana Supreme Court looked closely at the state’s constitution, peppered attorneys with questions and, at times, appeared skeptical of the answers during an hourlong oral argument as the justices waded into the Statehouse feud over who has the authority to call the Indiana Legislature into special session.

All five justices heard oral arguments Thursday in Holcomb v. Bray, et al., 21S- PL-518, witnessed by a full courtroom in the Indiana Statehouse.

The arguments were also livestreamed, although the feed was lost in the closing minutes of Indiana Solicitor General Thomas M. Fisher’s argument. A short time later, a message appeared across the website that read, “Video of oral arguments from Supreme Court courtroom is currently unavailable due to technical problems.”

This case was the only oral argument on the Supreme Court’s calendar in April.

Richard Blaiklock, managing partner at Lewis Wagner LLP, represented the governor. Fisher represented the Legislature. The Supreme Court gave each side two minutes before it started asking questions.

The governor and Legislature are feuding over the constitutionality of House Enrolled Act 1123.

The law, passed on a veto override in 2021, allows the Indiana General Assembly to call itself into a special session when a state of emergency has been declared by the governor. Under the law, the Legislature’s actions are limited to only enacting bills that relate to the agenda set by the Legislative Council and to adopting concurrent and simple resolutions.

During the oral arguments, justices queried Blaiklock over whether the governor had standing to bring the lawsuit, and they asked what harm the governor suffered by the Legislature having the ability to also call itself into session.

“Gov. Holcomb is not here saying that it’s good or bad public policy to have the durability of the Legislature and the governor to be able to call a special session,” Blaiklock said. “It may be, it may not be, but that question is left for a proper constitutional amendment for the decision to be left to the voters of Indiana.”

Fisher countered HEA 1123 does not limit the governor’s authority.

“The governor says the Legislature cannot, without his invitation, meet more than once a year,” Fisher told the court. “But the Legislature has been doing that for decades both on Organization Day and technical sessions. By virtue of straightforward constitutional text, the Legislature has control over the length and frequency of its sessions, whether regular, technical or emergency. Nothing in the text or history of the Constitution suggests some exclusive power of the governor is compromised here.”

A key point of contention between the governor and the Legislature are the amendments made to the state’s constitution in 1970 and 1984, which gave the General Assembly the authority over the “length and frequency” of its sessions.

Chief Justice Loretta and Justice Mark Massa queried Blaiklock over whether word “frequency” in the amendments gave the Legislature the ability to call a special session whenever it wanted. Blaiklock responded by asserting the court had to look at the context in which the amendments were crafted.

Massa asked, “… Seems the plain meaning of (‘frequency’) would mean ‘how often,’ but you seem to argue that it’s confined to a choice between annually and biannually. Explain to me how you come to that conclusion.”

Blaiklock responded, “First of all, the legislative history surrounding the passage is abundantly clear that what the framers were wrestling with was whether to put themselves into annual session or biannual session.”

Massa pushed back, “You’re arguing that ‘frequency’ here is ambiguous, that it can’t mean ‘how often.’”

Blaiklock replied, “I do believe it means ‘how often,’ but the question is, in what context? … My reading of the court’s recent jurisprudence on constitutional interpretation is that … the framers’ intent is the polestar of figuring out the intent of the provisions.”

Massa acknowledged the amendment proposed in 1967, which gave the General Assembly the power to call itself into special session, was rejected. But he wondered if the drafters of the 1970 amendment were thinking about the ability to convene a special session when they wrote “frequency.”

“And isn’t the fact that we have to speculate about that perhaps cautioning us to simply look at the explicit, plain meaning of the language?” Massa asked.

But Blaiklock highlighted the context that the General Assembly did not enact the 1967 provision when it had the chance, and that media stories and legislative reports do not indicate the word “frequency” was meant to include special sessions.

“I think all of that together suggests that they didn’t have an intent to, by implication, give themselves this authority,” Blaiklock said.

Similarly, Justices Steven David and Christopher Goff pressed Fisher on the constitutional language.

David asked, “If your interpretation prevails, does that swallow the ability of the governor to call a special session?”

Fisher said no, explaining the governor has the ability to convene the Legislature when it is not in session. The authority of the General Assembly to set and fix by law its length and frequency of sessions and when to commence its session is different.

“It’s a separate set of powers (that) lets the Legislature decide when it wants to be in session on its own,” Fisher continued. “It’s just, if (the General Assembly is not in session) and there’s an emergency and there’s a need, there’s somebody who can pull them into session. That’s all the special session power is. It’s not a way to manage the Legislature. It’s a relief valve.”

Goff said he was struggling with the Legislature’s reasoning. He maintained the language of the constitution specifically gives the power to call a special session to the governor. So, he asked, if that ability is abrogated and the Legislature could by itself call a session, “How is that not a violation of our separation of powers?”

Fisher replied the answer is to look at the text of the constitution. “We go into the text of Article 4 Section 9,” he began. “Now I agree, before 1970, the Legislature could not have enacted this statute.”

Goff parried, “But what do you do with Mr. Blaiklock’s argument that there was a specific determination not to consider that language?”

Fisher countered, “That was too meager. The Legislature didn’t want to go that small, they went big. They went very big. They said, ‘We don’t care if it’s a special session, we don’t need to have that. We need to have authority over sessions.’”

Goff was not satisfied, asking, “Shouldn’t we be more careful than that when we’re talking about something that’s been specifically enumerated in the constitution throughout the whole history of the state?”’

Fisher answered, “I’m not sure what could be clearer than ‘control over length and frequency of sessions.’ That is crystal clear; that is straightforward.”

The Supreme Court’s website did restore the video of the oral argument later in the day, but near the 51-minute mark, while Fisher is again making his argument that the “length and frequency” provision gives the Legislature the power to call a special session, the screen goes black.

A message appears that says, “Technical difficulties prevented audio and video recording for approximately 10 minutes.” When the video returns, Blaiklock is in the middle of his rebuttal.

At the end or the oral arguments, Rush complimented Blaiklock and Fisher and their legal teams.

“Counsel, on behalf of my colleagues on the court, outstanding,” the chief justice said. “Outstanding advocacy, outstanding briefing. For the young attorneys in here, this is how it should be done.”

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