A unanimous Indiana Supreme Court has found HEA 1123, the controversial law allowing the Legislature to call itself into special session, violates the state’s constitution, handing Gov. Eric Holcomb a victory in a fight with the legislators that was ignited by the restrictions implemented during the worst of the COVID-19 pandemic.
In a clear and detailed 31-page opinion issued Friday afternoon, written by Chief Justice Loretta Rush, the Supreme Court found House Enrolled Act 1123 does not comply with two articles in the Indiana Constitution. Namely, the special session statute violates the “fixed by law” requirement of Article 4, Section 9, and it infringes on the constitutional authority given to the governor by Article 3, Section 1.
“The question before us is not whether it is sensible for the General Assembly to be able to set an emergency session,” Rush wrote in Holcomb v. Bray, et al., 21S-PL-518. “We decide only whether the Legislature’s chosen mechanism is permissible under the relevant constitutional text which requires the length and frequency of legislative session to be ‘fixed by law.’”
Holcomb filed the lawsuit in April 2021 after the Republican-controlled Indiana House and Senate overrode his veto of HEA 1123.
The law gave the General Assembly the power to call an emergency session if the Legislative Council adopted a resolution when the governor had declared a state of emergency and the Legislature had to address the state of emergency with legislative action. However, Holcomb said HEA 1123 ran afoul of the state’s constitutional division of powers.
“By allowing the Legislative Council to set an emergency session by simple resolution, HEA-1123 violates Article 4, Section 9’s fixed-by-law requirement,” Rush concluded. “And, by permitting the Legislative Council to set an emergency session at a time when the General Assembly is not in session, HEA-1123 infringes on constitutional authority vested only in the Governor and thus violates Article 3, Section 1. Simply put, absent a constitutional amendment under Article 16, the General Assembly cannot do what HEA-1123 permits.”
The ruling drew sharp reactions from the opposing parties.
Holcomb applauded the decision and viewed the dispute as settled.
“From the beginning, this case presented important procedural, statutory and constitutional questions that only the courts could answer,” Holcomb said in a statement. “Today, the Indiana Supreme Court has provided clarity and finality on these important issues. I appreciate the patience and humility Speaker (Todd) Huston and Senator (Rod) Bray have shown throughout the entire process, of which I always sought to match. With this critical matter resolved, we’ll continue focusing on building a prosperous state full of opportunity for all.”
Conversely, Indiana Attorney General Todd Rokita blasted the decision, inferring the justices overstepped their authority.
“The Indiana Supreme Court provided answers to several areas of the law that the governor questioned. But in doing so, the court became a legislature today by overriding the intent of those who are directly elected by the people,” Rokita said in a statement. “The good news is the General Assembly can correct this. Fortunately, the court rejected the governor’s claim that the legislature could meet only once a year unless the governor—and only the governor—calls them into session. We will continue to fight for Hoosiers and to protect their liberties.”
In reviewing the history of Indiana’s 1816 and 1851 constitutions and the amendment to Article 4 Sections 9 and 29 ratified in 1970, the Supreme Court noted the Legislature has the ability to set the length and frequency of its sessions. But the amendment added the requirement to Section 9 that the length and frequency of the General Assembly’s sessions “shall be fixed by law.”
The justices held that HEA 1123 violates the “fixed by law” provisions because it authorizes the Legislature to set an emergency session by a resolution, not by a law.
“We acknowledge that, under the provision’s plain language, the Legislature could – during a session – enact a law designating that the General Assembly will convene at a future date and place and for a specified period of time,” Rush wrote. “… But when the General Assembly is not in session, it cannot fix by law the frequency of an additional session – which is preciously what HEA-1123 permits.”
Further examining Holcomb’s argument that HEA 1123 infringes on the governor’s constitutional authority to call a special session, the Supreme Court made a careful distinction.
The justices noted they “ultimately agreed” the law violated the prohibition “against commingling powers” in Article 3 Section 1. But, they disagreed with the governor’s contention that the Legislature lacks the constitutional authority to set additional sessions.
Indeed, looking at the convention that drafted the 1851 Indiana Constitution, the Supreme Court found the delegates in approving the Address to the Electors put the governor’s special-session authority in the section of the Address entitled “In The Legislative Department.”
“This change is compelling evidence that the framers and ratifiers of the 1851 Constitution viewed the governor’s authority to call a special session as an exception to the legislative branch function,” Rush wrote.
Turning to the “length-and-frequency clause” again, the Supreme Court reiterated the General Assembly has the constitutional authority to set the length and frequency of a session through a “properly enacted bill.”
However, the Supreme Court noted, HEA 1123 constitutes an overreach of that authority.
Both Huston, R-Fishers, and Bray, R-Martinsville, reacted to the decision.
“I respect the Indiana Supreme Court’s opinion on House Enrolled Act 1123 and we’ll consider all options moving forward,” Huston said in a statement.
“We are still in the process of reviewing the opinion, and while I am disappointed in the outcome of the lawsuit, I respect the Supreme Court’s decision,” Bray said in a statement. “We will work collaboratively to find a way forward that serves the best interests of the State of Indiana.”
In the opinion, the Supreme Court also addressed and dismissed the legislative parties’ procedural arguments which contended the governor did not have to power to even bring the lawsuit. The justices disagreed with each claim advanced and found the governor was not procedurally barred from seeking declaratory relief.
IL Managing Editor Jordan Morey and IL reporter Katie Stancombe contributed to this story.