Characterizing the legislative branch as the “political competitor” of the executive branch, the Indiana General Assembly contends House Enrolled Act 1123 is a lawful exercise of its authority and that Gov. Eric Holcomb’s attempt to overturn the statute is based on a misreading of the state’s constitution.
The Legislature, represented by the Indiana Attorney General, has presented its analysis of Article 4 Section 9 of the Indiana Constitution as part of its 66-page brief filed with the Indiana Supreme Court for the case Eric J. Holcomb v. Rodric Bray, et al., 21S-PL-00518.
HEA 1123, which was passed during the 2021 legislative session, gives the General Assembly the ability to call itself into special session whenever the governor declares a state of emergency. Holcomb vetoed the bill then sued when the Legislature overrode that veto.
The Indiana Supreme Court accepted the case after the Marion Superior Court upheld the law.
Holcomb, represented by Lewis Wagner LLP, argued in his Supreme Court brief that the law usurps the power vested exclusively with the governor by the Indiana Constitution.
However, the Legislature countered that the language in the state constitution explicitly allowing the governor to call a special session is, in fact, giving the executive branch only limited authority over the power the legislative branch already has. Specifically, HEA 1123 is enabling the General Assembly to set “by law” the “length and frequency” of its sessions as permitted by Article 4 Section 9 on the Indiana Constitution.
“The Special Session Clause does not limit the General Assembly’s authority on this score but merely confers on the Governor a limited legislative power to call the legislature into a session if the legislature happens to be adjourned at a time when ‘the public welfare’ requires its attention,” the Legislature argues, referring to language in Article 4 Section 9. “Indeed, the Special Session Clause is a textual exception – contemplated by Article 3 – to the general rule separating the functions of the branches. To turn that exception into exclusive gubernatorial authority would turn Article 3 upside down.”
To support its argument, the Legislature points to the technical sessions that are called every year by the General Assembly after the regular session has ended.
These sessions, according to the Legislature’s brief, are used to both pass new bills and to override gubernatorial vetoes. They are “distinct, stand-alone sessions” because they commence after adjournment sine die of the regular session. Moreover, the House and Senate chambers conduct “organization” proceedings by initiating formal communications and by notifying all that each chamber has formed a quorum and is proceeding with legislative business.
“The Governor argues that, notwithstanding these stand-alone-session features, technical sessions constitute transtemporal ‘resumption’ of an adjourned session by virtue of a concurrent resolution, passed during a regular session, authorizing them,” the Legislature asserts in its brief. “Even if accepted, however, that fiction would apply equally to HEA 1123 emergency session, which, to be valid under the Governor’s theory, would need only to be authorized by concurrent resolution each regular session. The Governor’s distinction between technical and emergency sessions, therefore, is an empty formalism without practical significance.”
The Legislature also rebuffs the Holcomb’s argument that HEA 1123 violates the separation-of-powers provision in Article 3 Section 1 by allowing the General Assembly to exercise power given exclusively to the executive branch.
In its examination of Articles 3 and 4, the Legislature points out the Special Session Clause is found not in Article 5, which lays out the power of the executive branch, but in Article 4 which details the power of the General Assembly.
“The Governor argues that the Special Session Clause grants him exclusive authority over all ‘non-regular’ legislative sessions, such that HEA 1123 violates Article 3 Section 1’s separation-of-powers provision by allowing the legislature to exercise exclusive executive power,” the Legislature states in its brief. “But to the extent Article 3 is relevant at all, it is by way of its Exceptions Clause, which anticipates (among other things) the Special Session Clause as an exception to exclusive legislative authority over the timing of the sessions. The Exceptions Clause of Article 3 confirm that the Special Session Clause does not, by text or implication, exclude the legislature’s own authority over its sessions or confer on the Governor a power to prevent the General Assembly from meeting.”
Oral arguments are scheduled for April 7. Holcomb’s reply brief is due Feb. 22. The Supreme Court has granted the governor permission to file an oversized reply of no more than 12,000 words.