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Governor sues General Assembly to strike down law authorizing emergency legislative sessions
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2021 Indiana General Assembly

Governor sues General Assembly to strike down law authorizing emergency legislative sessions

State of the State

Gov. Eric Holcomb delivers his 2021 State of the State address to the Indiana General Assembly remotely due to the COVID-19 pandemic. On Tuesday, Holcomb sued the General Assembly seeking to strike down a new law enacted over the governor's veto that permits the Legislature to convene without the governor's consent during periods of statewide emergency.

Gov. Eric Holcomb is asking a Marion County judge to declare unconstitutional a new Indiana law authorizing the General Assembly to convene during statewide emergencies without obtaining the governor's consent.

The Republican chief executive claims the Indiana Constitution permits only the governor to call special sessions of the General Assembly once the Legislature has adjourned for the year, typically in late April during odd-numbered years and mid-March in even-numbered years.

Holcomb said the provisions of House Enrolled Act 1123, allowing the General Assembly to convene itself for up to 40 days whenever its 16-member Legislative Council decides action is needed to respond to a statewide emergency, infringes on the governor's special session role and violates the separation of powers required by the Constitution.

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

House Speaker Todd Huston, R-Fishers, said the governor has been "transparent" with legislators "about his thoughts and intentions regarding House Enrolled Act 1123."

"We are in consultation with the Indiana attorney general's office on what the next steps will be in this matter."

Attorney General Todd Rokita, a Republican originally from Munster, said the governor (and state agencies) lack the authority to sue the General Assembly using outside counsel because state law directs the attorney general to resolve any disputes when two parts of state government disagree on a legal question.

"Allowing state agencies to resort to the judicial system for review of every statute passed would foster legislative irresponsibility and unnecessarily overburden the courts into issuing, essentially, advisory opinions," Rokita said.

The emergency session law took effect April 15 after both chambers of the Republican-controlled General Assembly voted to override the governor's April 9 veto and enact the new law notwithstanding his objections.

During legislative debate, state Rep. Matt Lehman, R-Berne, insisted the Constitution allows the General Assembly to set the days and times it convenes, and establishing an emergency session falls within that authority — though he acknowledged the question was likely to end up in litigation.

Holcomb urged the Indianapolis court to rule promptly on his constitutional claims "or the consequences could be severe, including disruption to Indiana and the proper functioning of state government — something that concerns every Hoosier."

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There is, however, little possibility the General Assembly will convene an emergency session anytime soon, which may prompt the court to dismiss the governor's case and wait to rule until the emergency session law actually is invoked by the Legislature.

Holcomb on Monday signed into law House Enrolled Act 1372 extending this year's General Assembly adjournment deadline to Nov. 15 from April 29 to give lawmakers time to complete the once-a-decade process of redrawing legislative district boundaries that was postponed due to COVID-19 data processing delays at the U.S. Census Bureau.

At the same time, the governor's COVID-19 emergency declaration is unlikely to still be in effect in mid-November, thereby eliminating any basis for an emergency legislative session this year.

House Democratic Leader Phil GiaQuinta, D-Fort Wayne, said it's shameful Hoosier tax dollars are being spent on this "needless power struggle" between Statehouse Republicans.

"Too many times, we have watched as our colleagues across the aisle have forced through legislation with questionable constitutionality. It's yet another symptom of the Republican infighting we've been seeing all session," GiaQuinta said.

"House Democrats voted 'no' on this bill because we believe in prioritizing Hoosiers' safety over political attacks. When there are too many cooks in the kitchen, decisions 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."

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