Judge weighing Indiana governor’s suit over emergency law

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Indiana’s constitution gives the Legislature full authority to meet whenever it wants, a top state lawyer argued Friday in a bid to squash Gov. Eric Holcomb’s lawsuit challenging the increased power state legislators gave themselves to intervene during public health emergencies.

Holcomb contends that the law passed this spring — despite his veto — violates the constitution by giving legislative leaders the authority to call lawmakers into an “emergency session” when the governor has declared a statewide emergency.

Republican legislators advanced the law following criticism from conservatives over a statewide mask mandate and other COVID-19 restrictions that Holcomb imposed by executive order.

Holcomb’s lawsuit, now being weighed by a Marion County judge, has divided Indiana’s Republican hierarchy as he maintains the constitution permits only the governor to call the General Assembly into special session after its annual session ends.

Republican state Attorney General Todd Rokita has sided with legislators and unsuccessfully argued that courts shouldn’t consider Holcomb’s lawsuit.

On Friday, state Solicitor General Thomas Fisher, a top Rokita deputy, pointed the judge to state constitution language stating “The length and frequency of the sessions of the General Assembly shall be fixed by law.”

Fisher argued that a 1970 constitutional amendment allowing the Legislature to meet each year gave lawmakers “maximum flexibility” on deciding when to meet, and that legislators could pass a law setting meeting times outside their current annual sessions that begin in early January and adjourn by the end of April.

The governor’s lawsuit seeks to prevent the Legislature from doing “in summer and fall what it can do in winter and spring” and prevent lawmakers from representing their constituents in response to statewide emergencies, Fisher said.

The Legislature has the existing authority to terminate emergency orders issued by the governor with a simple majority vote. Numerous Republican lawmakers sponsored such resolutions during this year’s session, but legislative leaders didn’t advance any of them for votes before the regular legislative session ended in April.

Richard Blaiklock, one of the private lawyers representing Holcomb, said the constitution gives authority only to the governor to call the Legislature into a special session. He argued legislators were trying to make an “end run” around the constitution with the emergency session law.

“It acts, it looks, it walks like a special session,” Blaiklock said. “It is a special session by another name.”

Holcomb has said he’s worried that any action taken by the Legislature under the new law could be challenged as illegal and lead to “significant uncertainty” during a time of emergency.

Blaiklock said if legislators want the authority to meet at any time, then they should seek to amend the state constitution rather than set up an “illegitimate session.”

“For whatever reason, they decided not to follow that process and went the wrong way,” Blaiklock said.

Marion County Judge Patrick Dietrick gave both sides 10 days to submit more court documents before he makes a decision. Legal experts anticipate the dispute will ultimately be decided by the state Supreme Court.

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