Governor Eric Holcomb is suing the Indiana General Assembly, claiming the lawmakers pushed forward an unconstitutional bill with HEA 1123.

HEA 1123

House Enrolled Act 1123 (originally House Bill 1123) would allow lawmakers to convene at any time during a statewide emergency.

Currently, any special session of the legislature must be called for by the governor.

HEA 1123 was created in response to Holcomb’s responses to the Covid-19 pandemic.

Senator Jean Leising (R-Oldenburg) said the bill would restrict Indiana’s governor “from overstepping his hand exercising his authority by continuous executive powers he’s used over the last 13-14 months now.”

State Rep. Sean Eberhart (R-Shelbyville) voted in favor of HB 1123 when it passed out of the House 69-27 on Feb. 9.

Sen. Leising was added as a co-sponsor to the bill March 29.

Leising and Sen. Mike Crider (R-Greenfield) both voted in favor of HB 1123 when it came to the Senate floor March 29 and passed 29-10.

The bill moved through both chambers of the General Assembly before being sent to the governor’s desk April 6.

Gov. Holcomb vetoed HEA 1123 on April 9.

“I am vetoing HEA 1123 because I firmly believe a central part of this bill is unconstitutional,” Holcomb said in a letter to Speaker of the Indiana House of Representatives Todd Huston.

Holcomb said the legislation would give the General Assembly the ability to call itself into a special session, “thereby usurping a power given exclusively to the governor” under the Indiana Constitution.

“As such, it seeks to accomplish that which the Indiana Constitution clearly prohibits,” he said.

Holcomb said HEA 1123 “will create significant uncertainty” if it became law.

“Avoidable legal challenges during a state of emergency will only serve to be disruptive to our state,” Holcomb added.

The Indiana House of Representatives voted 59-26 on April 15 to override the governor’s veto. Eberhart voted in favor of overriding the veto.

That same day, the Indiana Senate voted 36-8 to override the veto. Leising and Crider voted in favor of overriding the veto.

Taking it to courtOn Tuesday, April 27, Gov. Holcomb filed a lawsuit in Marion County Circuit Court asking a trial court judge to find key provisions of HEA 1123 unconstitutional and to issue a permanent injunction to prevent them from being used.

“I took an oath to uphold the Constitution of the State of Indiana and I have an obligation 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.

The lawsuit names the Indiana General Assembly, the Indiana Legislative Council, Speaker Huston and Senate President Pro Tempore Rodric Bray as defendants.

The suit claims “(t)he ramifications of any use of the Disputed Provisions of HEA 1123 by the General Assembly will be disruptive to the State of Indiana. HEA 1123’s very existence has created uncertainty and confusion. 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.”

Citing Indiana’s original Constitution from 1816 and the amended Constitutions from 1851 and 1970, the suit argues it “is the sole and exclusive right and authority of the governor to call special sessions. Nowhere in these changes, or in the actual text of the Indiana Constitution itself, was the General Assembly ever given that same right, power, or ability.”

Holcomb’s legal team also point to the separation of powers outlined in the Indiana Constitution. Where one branch of government – in this case, the Executive and Administrative branch – has explicit authority to do something, the other branches do not.

“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,” the suit states.

The lawsuit asserts further that a “emergency session” is no different than the “special session” mentioned in the Constitution. And if it were, “(t)here is no authority in the 1851 Constitution (or the 1970 Amendment) that allows or empowers, in any way, the General Assembly to create a new type of legislative session, including, but not limited to, the so-called ‘emergency session’ described in HEA 1123.”

Holcomb is seeking a declaratory judgement on the constitutionality of HEA 1123.

“This constitutional controversy fits squarely within the very purpose of declaratory judgment actions – to resolve a dispute or uncertainty before it progresses to the point where real harm occurs,” the lawsuit stated.

The suit also noted that the Indiana General Assembly passed HEA 1123 on an “emergency” basis, making the law effective immediately upon passing, rather than waiting to go into effect July 1.

Because Indiana is still in a declared state of emergency, the General Assembly could call an emergency session at any time under the law.

“Any delay in addressing the constitutionality of the Disputed Provisions of HEA 1123 could result in severe disruption to Indiana and the proper functioning of state government,” the suit continued. “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.”

A judge had not yet been assigned the case as of press time Tuesday.