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Holcomb sues General Assembly, leaders over new law curtailing his emergency powers

Follow our legislative coverage at The Indiana Citizen, in partnership with TheStatehouseFile.com

Gov. Eric Holcomb filed a lawsuit against the Indiana General Assembly Tuesday in Marion County Circuit Court, challenging a  newly enacted law that allows the legislature to call itself into “emergency” sessions.

After the House and Senate passed House Bill 1123 earlier this month, Holcomb vetoed the bill, saying a “central” part of it was unconstitutional and violates the separation of powers outlined by the Indiana Constitution.

Both chambers voted to override the veto, passing the bill into law without the governor’s signature. Holcomb’s lawsuit lists the Legislative Council—specifically naming House Speaker Todd Huston, R-Fishers, and Senate President Pro Tem Rodric Bray, R-Martinsville—as defendants.

In a statement after he filed the lawsuit, Holcomb said he took an oath to uphold the Indiana Constitution and he has “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 the lawsuit, Holcomb alleges “the General Assembly has impermissibly attempted to give itself the ability to call special sessions, thereby usurping a power given exclusively to the governor.”

He adds that Sections 2, 4 and 5 of House Enrolled Act 1123 infringe upon and undermine the constitutional power to call sessions, which is a power the constitution only gives the governor. The lawsuit says these provisions will be disruptive to the state of Indiana.

“HEA 1123’s very existence has created uncertainty and confusion,” the lawsuit states. “This controversy must be resolved as soon as possible or the consequences could be severe, including disruption to Indiana and the proper functioning of state government—something that concerns every Hoosier.”

Sen. Greg Taylor, D-Indianapolis, Senate minority leader, issued a statement after Holcomb filed the lawsuit, saying that while he didn’t agree with all of the governor’s decisions regarding the pandemic over the past year, he thinks it’s better to have one person making the quick decisions during times of crisis.

“House Enrolled Act (HEA) 1123 is an overstep in power by the supermajority in the legislature, and it’s not at all surprising that Governor Holcomb is challenging the constitutionality of this proposal,” Taylor said. “Then, when there are judges speculating about the bill and raising concerns with it before it even makes it out of the General Assembly, you would think that would be enough to get folks to stop and rethink what they’re doing.”

During committee hearings on HB 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; but even then, the bill moved through the legislature and ultimately 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. “The Constitution provides for two and only two types of legislative sessions: the regular annual session and special sessions called by the governor when in his opinion ‘the public welfare shall require it.’”

The lawsuit says the General Assembly enacted HEA 1123 on an “emergency” basis, so the law is already in effect because Indiana remains in a state of emergency due to the COVID-19 pandemic. This means lawmakers could call  an “emergency session” at any time.

“This controversy is ripe for judgment,” the lawsuit states. “The Court should promptly resolve the significant uncertainty and confusion over the constitutional powers of the Executive and Legislative Branches created by HEA 1123, which a declaratory judgment can effectively resolve.”

Senate President Pro Tem Bray said the lawsuit did not come as a surprise.

“The governor shared his intent to challenge the constitutionality of this law with me, and this is not unexpected,” Bray said. “As I have said before, there is a fundamental disagreement on the constitutionality of HEA 1123.”

House Speaker Huston issued a similar statement that this lawsuit was not unexpected.

“Governor Holcomb has been transparent about his thoughts and intentions regarding House Enrolled Act 1123,” Huston said. “We are in consultation with the Indiana Attorney General’s Office on what the next steps will be in this matter.”

Drew Anderson, spokesperson for the Indiana Democratic Party, said in a statement that the party has “spent the last 100 days helping President Joe Biden pass the American Rescue Plan and get Indiana safely out of COVID-19.”

“Looks like the Indiana Republican Party is continuing with their intraparty civil war that’s done nothing but harm the state in the process,” the statement said.

Hope Shrum is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.