Holcomb’s lawsuit draws rebuke from Attorney General

Editor’s note: This story has been updated.

Following the Legislature’s override of his veto, Indiana Gov. Eric Holcomb has filed a lawsuit against the legislative branch, claiming the provisions in House Enrolled Act 1123 that allow the Indiana General Assembly to call itself into “emergency session” are unconstitutional. Indiana Attorney General Todd Rokita, however, is asserting that his office has the exclusive authority to resolve the dispute.

The lawsuit, Eric J. Holcomb, Governor of the State of Indiana v. Rodric Bray, in his official capacity as the President Pro Tempore of the Indiana State Senate, and chairman of the Indiana Legislative Council, Todd Huston, in his official capacity as the Speaker of the Indiana House of Representatives, and vice-chairman of the Indiana Legislative Council, The Legislative Council as established by Indiana Code § 2-5-1.1-1, and The Indiana General Assembly, was filed Tuesday in Marion Circuit Court.

Holcomb is asking the court to declare that certain provisions of HEA 1123 unconstitutionally encroach on the governor’s “exclusive right and authority” to call special sessions and to enjoin them from being enforced.

“I took an oath to uphold the Constitution of the State of Indiana and I have an obligation (to) do so,” Holcomb said when he filed the lawsuit. “This filing is about the future of the executive branch and all the Governors who will serve long after I’m gone.”

Senate President Pro Tem Rodric Bray, R-Martinsville, issued a response, saying he was not surprised by Holcomb’s action.

“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.”

Rokita, however, released a statement asserting the power of the attorney general to prevent two branches of state government from engaging in a court battle.

“Under Indiana law, only the attorney general may determine and advocate the legal position of all of state government,” Rokita’s office said. “And that exclusive authority exists for good reason – so that Indiana speaks in court with a single legal voice. In creating the Office of the Attorney General, the General Assembly resolved precisely this sort of situation – where two parts of the state government disagree on a legal question.”

House Speaker Todd Huston, R-Fishers, said his office is working with the Attorney General.

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

House Democratic Leader Phil GiaQuinta, D-Fort Wayne, described HEA 1123 as a symptom of “Republican infighting” that is now using taxpayers dollars to resolve these “needless power struggles.”

“House Democrats voted ‘no’ on this bill because we believe in prioritizing Hoosiers’ safety over political attacks,” GiaQuinta said in a statement. “When there are too many cooks in the kitchen, decision take longer to make, and when we’re talking about public health emergencies we don’t have time to waste. The governor is more than capable of holding this responsibility and I am disappointed we have come to this yet again.”

Holcomb is being represented by Lewis Wagner attorneys John Trimble, A. Richard Blaiklock, Aaron Grant and Michael Heavilon.

However, Rokita indicated he did not want the governor’s office to hire its attorneys.

“In declining to authorize outside counsel to represent the Governor here, the Office of the Attorney General is not beset by a conflict of interest but is instead fulfilling its core purpose – setting a single, unified legal position for the State as a whole,” Rokita said in a statement.

House Enrolled Act 1123, authored by Rep. Matt Lehman, R-Berne, includes provisions that enable the General Assembly to convene in an emergency session after the governor declares a state of emergency.

While the legislators were considering the bill during the 2021 session, constitutional law experts testified the bill was unconstitutional. That included former Indiana Supreme Court Justice Frank Sullivan.

Lawmakers acknowledged the law would create uncertainty and confusion but said they would let the courts decide.

HEA 1123 passed with strong Democratic opposition. Holcomb vetoed the measure April 9 and the Statehouse overrode the governor April 15.

In the complaint for declaratory judgment and injunctive relief, Holcomb emphasizes the power to call the Legislature into special session rests solely with the governor. By passing HEA 1123, he argues, the Indiana General Assembly has “impermissibly attempted” to give itself the ability to call special session, which usurps the “power given exclusively to the governor under Article 4 § 9 of the Indiana Constitution.”

Included in the lawsuit are excerpts of Indiana’s 1816 and 1851 constitutions as well as the 1970 amendment to Article 4 § 9. Holcomb cites these passages to reinforce his assertion that only the governor can call the Legislature into a special session.

“The right and authority to call a special session is clearly, unequivocally, and exclusively a function of the governor,” Holcomb argues in the lawsuit. “As such, neither the General Assembly nor the Legislative Council can exercise this function since the Indiana Constitution does not expressly allow for it.”

In addition, he points to Article 3 § 1, a separation of powers principle, contained in the 1851 Indiana Constitution. Holcomb argues the separation makes clear that no branch of state government may exercise the function of any other branch unless “expressly permitted” by the constitution.

“As such, it protects the independence and integrity of each branch, not only from direct infringement by other branches, but also from any indirect or even remote influence from these branches,” Holcomb asserts in the complaint.

Democratic Senate Leader Greg Taylor, D-Indianapolis, issued a statement saying he was not surprised Holcomb is challenging the constitutionality of HEA 1123. He noted repeated concerns were raised in the committee hearing and on the Senate floor but not enough lawmakers stopped to rethink what they were doing.

“The entire motive behind this legislation stems from issues members across the aisle had with the governor’s public safety decisions last year,” Taylor said, referring to Holcomb’s emergency orders issued in response to the COVID-19 public health crisis. “They were upset with his mask mandate, with his decision to change the election date and expand vote-by-mail options. And, trust me, I didn’t agree with every one of the governor’s decisions over the past year either. But I do believe it’s better to have one person making those quick decision in times of crisis, rather than multiple people trying to come to agree on one solution in the middle of an emergency.”

HEA 1123 includes language that amends Indiana Code § 2-2.1-1-1 and I.C. § 2-2.1-1.2 to allow the General Assembly to convene an “emergency session.” Holcomb argues this is “functionally a special session” since both are “one-time and non-recurring.”

In his lawsuit, Holcomb urged the court to promptly resolve the “significant uncertainty and confusion” created by HEA 1123.

“Indiana remains in a state of emergency wherein an ‘emergency session’ may be called to create a new session (in) the recently adjourned General Assembly at any time through its Legislative Council,” Holcomb argues in the lawsuit. “Any delay in addressing the constitutionality to the Disputed Provisions of HEA 1123 could result in severe disruption to Indiana and the proper functioning of state government.”