Contending the Legislature is injecting politics into the litigation over House Enrolled Act 1123, Gov. Eric Holcomb is reiterating his argument to the Indiana Supreme Court that the dispute is not about public policy but rather about whether the state’s constitution allows the General Assembly to call itself into a special session.
The governor’s 56-page reply brief filed Wednesday in Holcomb v. Bray, et al., 21S-PL-518, lashes out at the “procedural arguments” the Legislature has made to block his lawsuit from moving forward and describes the General Assembly’s citation to Attorney General Todd Rokita’s forthcoming law review article about the litigation as “simply more words of the Legislative Parties’ Brief.”
Also, the governor faulted the Legislature’s brief written by Rokita’s office and presented to the Supreme Court. He asserted that rather than addressing the historical facts, the General Assembly recites the emergency orders issued in Indiana, cites news articles that seem to take exception to those orders and talks of respecting individual liberties.
“As the trial court correctly noted, ‘the issues before the court do not include the public policy merits of HEA-1123,’” the governor’s brief states. “This case is about whether HEA-1123 is unconstitutional, not whether the political motivations for its passage are meritorious.”
House Enrolled Act 1123 was passed by the Indiana General Assembly during the 2021 session in response to the actions the governor took — including ordering nonessential businesses to close and mandating masks — to control the COVID-19 pandemic. The law gives legislators the ability to call themselves into a special session when an emergency has been declared by the governor.
After the Legislature overrode his veto of the bill, Holcomb filed a lawsuit in state court, asserting the measure violates the separation of powers provision in the Indiana Constitution. The governor is being represented by Lewis Wagner.
In his reply brief, the governor reiterated his argument that the Legislature is encroaching on the power given solely to the executive branch by the Indiana Constitution to call the General Assembly into special sessions.
“If one branch of government infringes upon the constitutional authority of another branch, there is fundamental harm to Indiana’s very form of government,” Holcomb states in his brief. “Just because the Legislative Parties believe there is no practical harm in granting themselves the power to call emergency (‘special’) sessions, does not mean that there is not foundational harm to our constitutional government. There is no ‘harmless error’ when it comes to the infringement of constitutional power.”
Holcomb described the Legislature’s discussion of the state constitution’s history as “significant for its brevity and omissions.”
In particular, the governor dissected the General Assembly’s arguments of the 1970 amendment that the General Assembly has characterized as giving it the authority to call a session any time.
The governor contended that if the amendment had enabled the Legislature to call a session whenever it wanted, the representatives and senators would have immediately followed the ratification with the passage of a bill similar to HEA 1123. Citing Ellingham v. Dye, 178 Ind. 336, 99 N.E.1 (Ind. 1912), Holcomb surmised that the “prolonged … absence of claims to a particular constitutional authority” indicates the General Assembly did not view the 1970 provision as giving it a blanket ability to convene a session.
“HEA-1123 is unconstitutional because Article 4 Section 9 ‘expressly’ grants to a governor the executive function of calling a ‘special session’ that is not also ‘expressly provided’ to ‘another’ ‘person, charged with official duties under one of [the three] departments … ,’” Holcomb states in his brief. “… There is no dispute that the Legislature did not have the authority to call a ‘special session’ prior to 1970, and nothing in the 1970 or 1984 Amendments ‘expressly provided’ that it could call a ‘special session.’”
Holcomb also dismissed the Legislature’s contention that it has the authority to call itself into session because it routinely convenes a technical session after every regular session has adjourned.
“… (A) technical session is not a new, or stand-alone session,” according to the brief. “The Constitution does not contain the words ‘sine die’ but it does use the words ‘final adjournment’ in Article 5 Section 14(a)(2)(C) and – (D), which reflects the existence and efficacy of other types of adjournments, such as one to accommodate a technical session that follows a non-‘final’ adjournment of the ‘regular session’ to which the technical session is statutorily-tethered. As such, the first date of a technical session is not the ‘commencement’ of a new constitutional session that is required to be set ‘by law.’”
Detailing the “procedural arguments” made by the Legislature, Holcomb countered the Legislature’s argument that his claims are not ripe because the legislative branch has not called an emergency session. The General Assembly has argued that if it does call itself into session as some point in the future, then the dispute over the constitutionality of HEA 1123 could be litigated in the courts.
“Beyond the fact that such an approach is not good government, it ignores that any delay in resolving this constitutional issue until our state in in the midst of an as-yet undetermined future emergency could cost lives and cause serious damage,” Holcomb states in his brief. “Finally, courts do not need to decide important constitutional issues like this under intense time pressure, and neither do the parties. What the parties have taken almost a year to litigate could not have been done quickly and thoroughly in an emergency (rushed) injunctive setting.”
The Indiana Supreme Court has scheduled an hourlong oral argument in this case for April 7, 2022.