Legislature given deadline to respond to governor’s motion for Supreme Court review of ‘special session’ law

The Indiana Supreme Court has given the Legislature until Nov. 1 to rebut Gov. Eric Holcomb’s request that the justices decide whether the state’s constitution allows the General Assembly to call itself into a special session.

Holcomb filed the motion for emergency transfer after Marion Superior Judge Patrick Dietrick ruled House Enrolled Act 1123 — which grants the Legislature the power to convene a special session when a state of emergency is declared — does not violate the Indiana Constitution. The governor is urging the Supreme Court to accept the case, arguing it involves a “substantial question of law of great public importance.”

In an order issued Oct. 25 in Holcomb v. Bray, et al., 21A-PL-2339, the Supreme Court stated any response from the Legislature must be filed by Nov. 1.

The governor is arguing that emergency transfer is warranted because the COVID-19 pandemic is ongoing. In his motion, Holcomb asserts that if HEA 1123 remains in place beyond March 14, 2022, the date next year’s legislative session is scheduled to end, the Legislature could call itself back into “special session.” And, if the General Assembly passes laws during that extra session, the constitutionality of those statutes would be in question and subject to legal challenge.

“Failure to obtain a definitive decision by this Court before then could leave Indiana citizens, and the proper functioning of state government, in a state of uncertainty during an emergency,” Holcomb argues. “That outcome is potentially dangerous and is also bad public policy.”

Holcomb’s motion reiterates his contention that Articles 4 § 9 and 3 § 1 of the Indiana Constitution give the governor the sole power to call the Legislature into special session. The articles, the motion argues, have “expressly provided” the governor with the power to bring the General Assembly back to the Statehouse outside of its regular annual session.

Under the state’s constitution, the General Assembly has no “express constitutional authority” to call a special session, Holcomb’s motion asserts.

However, Dietrick agreed with the Legislature’s stance that Article 4 § 9 does not put any restraints on the Statehouse from setting its own schedule. The article, which permits the General Assembly to meet annually, was added to the Indiana Constitution after the voters ratified it in November 1970.

“… (T)he Special Sessions Clause is a grant of limited legislative authority to the Governor, not a limitation on the General Assembly’s express and inherent legislative authority over the scheduling of its sessions; and there is no constitutional text limiting the General Assembly’s authority over its session to only ‘regular’ sessions,” Dietrick wrote in Holcomb v. Bray, et al., 49D12-2104-PL-014068.

Holcomb asserts the trial court did an incomplete analysis of Article 4 § 9.

Specifically, neither the question on the ballot in 1970 nor the text of the amendment make any mention of anyone other than the governor having the power to call a special session. Also, when the amendment was approved, the Legislature enacted the “Legislative Sessions and Procedures Law of 1971,” Indiana Code § 2-2.1-1-1, et seq. That statute not only defines “special session” as being called by the governor but also makes no mention of the General Assembly being able to call itself into special session.

“This case involves whether the General Assembly can call itself into a special (emergency) session,” Holcomb’s motion states. “Article 4 § 9 answers that question in the negative.”

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