Indiana judges urge legislature to follow constitution

Frank Sullivan

In what is called “the right decision,” the Indiana Supreme Court struck down the law that allowed the Legislature to meet in special session. However, the debate over whether the governor should have exclusive power to summon the General Assembly when lawmakers are out of session may not be settled.

The unanimous decision rendered on June 3 in Eric J. Indiana State Governor Holcomb vs. Rodric Bray, et al. 21S-PL-518, found that House Enrolled Act 1123 violated Article 4, Section 9 and Article 3, Section 1, as well as Section 16 of the Indiana Constitution.

The justices emphasized that they were making no judgment on whether it was reasonable for the Legislative Assembly to have the ability to schedule its emergency sessions. Rather, they determined that the General Assembly could not simply pass a law giving itself the power to call special sessions, but rather had to amend the constitution.

“I think this will go down as the most landmark separation of powers case in Indiana legal history, former Indiana judge Frank Sullivan said, explaining that the 5-0 hold removes any ambiguity and shows that the judges clearly considered the law to be unconstitutional. He described the opinion written by Chief Justice Loretta Rush as “clear, thorough and compelling”.

Indiana Governor Eric Holcomb

HEA 1123, passed in 2021, was born out of frustration surrounding Gov. Eric Holcomb’s response to the COVID-19 pandemic, which included stay-at-home orders, business closures and mask mandates. The Republican-led Legislature said the bill provides a way to give Hoosiers a voice when a state of emergency is declared.

However, Holcomb said the bill violated the state constitution. After the legislature overruled his veto, he sued in state court.

The Supreme Court held that the provision of HEA 1123 allowing the Legislative Council to pass a resolution calling a special session violates Article 4, Section 9, wording “provided by law” which requires the Legislature to pass a law fixing the duration and frequency of its sessions. In addition, the law violated Article 3, Section 1, which prohibits one branch of government from performing any of the functions entrusted to another.

“Any session fixed by the General Assembly must be fixed by a bill duly passed, and not by a mere resolution. And so, when the General Assembly is not in session, it cannot fix an additional session “, Rush wrote for the court. “Because HEA-1123 authorizes the Legislative Council to fix an emergency session by resolution, the law violates the statutory requirement of Article 4, Section 9. , we agree with the governor that HEA-1123, by allowing the Legislative Council to schedule an emergency session while the General Assembly is not in session, violates the division of powers mandate of section 3, Section 1 and impermissibly circumvents the requirements of Section 16 for amending the Constitution.”

National problem

William Barrett, a partner at Williams Barrett & Wilkowski LLP in Greenwood, testified against HEA 1123 while the measure was still being debated at the Statehouse. After the notice was published, he said the Supreme Court had spoken “with a clear and united voice on an important question of judicial review” and that the justices “had read the history of the Constitution (of the Indiana) and read the history of the division of powers between (the branches of government)…correctly.

However, Barrett said the question of what action a governor can take when the legislature isn’t there is a national issue that many states are wrestling with. In fact, the National Conference of Commissioners on Uniform State Laws, of which he is the chairman of the Indiana delegation, is in the process of drafting a model law concerning the distribution of powers within the constitutional structure of a State.

Barrett wasn’t sure the General Assembly would want to revisit the issue in the 2023 session, but said he would watch what lawmakers do.

“I think the really interesting thing going forward is now that the court has really laid out very clearly where the lane markers are for the two branches (executive and legislative), what the answer will be,” Barrett said. “We hope that we have come out of the (pandemic) which led us to litigation, but this legal balance of powers has not yet been reconciled. I’ll be interested to see who makes the next move when he comes back.

‘Belt and suspenders’

The Supreme Court’s opinion takes a close look at the Indiana Constitution as it was written in 1816 and 1851, as well as the 1970 amendment to Article 4, Section 9. The 1851 version gave to the governor the power of special session and the 1970 amendment gave the Legislature the ability to meet annually by requiring that the length and frequency of sessions of the General Assembly be “fixed by law”.

“…The problem with HEA-1123 is not necessarily the what (defining an additional session) but the how (by simple resolution) and the when (outside of a session),” Rush wrote.

Sullivan said the Supreme Court took a “belt and suspenders” approach to the decision by giving two reasons why HEA 1123 violates the state constitution. After delving into the language “fixed by law”, the opinion offers an “alternative theory” that the law violates the separation of powers provision of Article 3, Section 1.

“(Rush) makes a point of (HEA 1123) violating the (requirements) set by law,” Sullivan said. “But, I think, article 3, section 1, could also say that there would be circumstances even if (the lawmakers) tried to do something by law, they could not interfere with the exclusive power of the governor.”

Former Indiana Senate President Robert Garton first ran for the Legislature in 1970 when the amendment to Article 4, Section 9 appeared on the ballot. He does not recall anyone asking a question about the amendment while he was on the campaign trail, which he says is likely due to voters agreeing the Legislative Assembly should meet every year to manage all of its affairs.

Although he served in the Legislative Assembly for 36 years and acknowledged his loyalty to the General Assembly, he did not support HEA 1123.

“The (Supreme Court) where it should have been was where the Court ended up because you’re dealing with the constitution here,” Garton said. “…The right decision has been made.”

He said the decision is clear: if the Legislative Assembly wants to have the power to convene in special session, it must go through the lengthy process of drafting and passing an amendment in two different sessions. Then the provision must be approved by voters.

Garton doubts such an amendment will make it to the polls. He considers a special session amendment would lead to a full-time, year-round legislature, which he doesn’t think Hoosiers would support.

As to whether a constitutional change also allowing the General Assembly to call a special session would create a power imbalance between the legislative and executive branches, Barrett saw no reason to worry because the change would reflect the will of the citizens.

“Voters will have to respond one way or another, and if they decide to shift the balance, well… they’re the ones creating the organic law,” Barrett said.•