Legislature joins governor in asking Indiana Supreme Court to rule on emergency powers dispute

Disputing that an emergency actually exists, the Indiana General Assembly is still supporting Gov. Eric Holcomb’s petition requesting that the Indiana Supreme Court undertake an immediate review of House Enrolled Act 1123 and decide if the Legislature has the power to convene its own special sessions.

In a nine-page response filed with the Supreme Court on Monday, the Legislature brushed aside the governor’s contention that HEA 1123 violates the separation of powers established by the Indiana Constitution.

Instead, the General Assembly maintained that the “threshold defenses” it raised should be addressed. Those defenses include the suitability of the named legislative defendants, the availability of the relief the governor is demanding and a rehashing of Attorney General Todd Rokita’s assertion that because he did not give permission, the governor did not have the ability to file the lawsuit in the first place.

“So while the State’s view is that the Court ultimately need not reach the Governor’s claims, the Court will certainly need to reach at least one of the State’s threshold defenses, all of which separately present substantial questions of law of great public importance that justify immediate transfer,” the Legislature stated in its response in Holcomb v. Bray, et al., 21A-PL-2339.

Holcomb filed the lawsuit after the General Assembly overrode his veto of HEA 1123. He argued the law runs afoul of Articles 4 § 9 and 3 § 1 of the Indiana Constitution, which grant the governor the sole authority to call the Legislature into special session.

The Marion Superior Court disagreed and, in two footnotes, cited John Adams.

“Against the current backdrop of unprecedented restraints and constraints on personal liberties under the auspices of federal, state and local emergency powers, claimed to be necessitated by a now 20-month old pandemic, one of Adams’ earliest statements on the concept of separation of powers still resonates today: ‘There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty,’” Marion Superior Judge Patrick Dietrick wrote in his Oct. 7 ruling. 

Holcomb’s motion for emergency transfer articulated the emergency created by allowing the law to stand. Holcomb stated that if the Legislature would call itself into special session after the conclusion of its 2022 regular session, any laws passed would be open to a constitutional challenge.

However, the Legislature countered that the governor’s motion is wrong to suggest this case as presenting an emergency.

“In any case, HEA 1123 has never been invoked and is unlikely to be invoked any time in the near future: While the Governor has continued to perpetuate a state of emergency (though it is unclear how much longer he will do so), no threat of an actual emergency session exists because the General Assembly is already operating in non-emergency session and will likely continue to do so throughout the remainder of this year and into March 2022,” the Legislature stated.

The General Assembly noted a bill passed during the 2021 session extended the regular legislative session to Nov. 15, 2021, to give enough time for the Legislature to complete the state and federal redistricting process. Indiana Code § 2-2.1-1-3 enabled the Statehouse to commence its next regular session on Nov. 16 and continue until the end of the next regular session, March 14, 2022.

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