Gov. Eric Holcomb and Attorney General Todd Rokita (above) continued this week to release conflicting press statements and file court documents in their dispute over the constitutionality of the House Enrolled Act 1123 lawsuit.
In April, Holcomb vetoed the bill that would limit his powers during a state of emergency like the COVID-19 pandemic. Shortly after the General Assembly overrode his veto, Holcomb filed a lawsuit against the General Assembly.
Now the Office of the Attorney General has filed a court brief in Marion County Superior Court to strike the lawsuit.
“These legal issues arose when the Governor unlawfully sued the Indiana General Assembly following its override of the Governor’s veto of House Enrolled Act (HEA) 1123, which enables the legislature to call itself into emergency session following a declaration of a state emergency,” the attorney general’s office said in a statement to TheStatehouseFile.com.
The brief filed Monday states, “The question here is … whether the Governor—who in his official capacity is the State (or a part of it)—may, without the consent of the Attorney General, call another branch of the State to account before yet a third branch of the State.”
The brief goes on to state that the governor cannot hire outside legal counsel without the consent of the attorney general and the lawsuit cannot continue while the legislature is in session.
Rokita has not given Holcomb permission to hire outside legal counsel.
However, a private citizen has also filed a lawsuit. John Whitaker said the General Assembly is acting unconstitutionally in an attempt to be able to call itself into emergency sessions.
“If HEA 1123 imposes a concrete injury on a private party that challenges the statute’s validity in a justiciable case, Indiana courts will resolve that dispute,” the brief states.
The brief concludes, “If the Court does not strike the appearances, the Court should continue all proceedings to a date not sooner than 30 days following the adjournment sine die of the 2021 Session.”
During committee hearings on HEA 1123, several constitutional law experts, including Frank Sullivan, a former Indiana Supreme Court justice and current professor at Indiana University’s Robert H. McKinney School of Law, testified that the bill was unconstitutional, yet it became law.
“In my opinion, the provisions in HB 1123 that create a new ‘emergency session’ of the General Assembly to be convened by the Legislative Council are unconstitutional,” Sullivan said.
House Minority Leader Phil GiaQuinta, D-Fort Wayne, said House Democrats voted against HEA 1123 because they sought “Hoosiers’ safety over political attacks.”
“It’s a real shame that we have to use taxpayer dollars to resolve these needless power struggles,” GiaQuinta said in a statement.
The lawsuit is currently pending litigation.
“I took an oath to uphold the Constitution of the State of Indiana and I have an obligation to do so. This filing is about the future of the executive branch and all the Governors who will serve long after I’m gone,” Holcomb said in a statement.
Alexa Shrake is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.