The Journal Gazette
Saturday, September 11, 2021 1:00 am

Judge hears arguments in special session case

Attorneys spar over new law on governor's power

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – After months of written sparring, attorneys in the state's emergency powers case squared off in court Friday for two hours of arguments on whether the Indiana General Assembly can legally call itself into special session.

That is the crux of House Enrolled Act 1123, passed in March by the legislature in response to the governor's continued executive orders during the pandemic. By legislating themselves that power, lawmakers could come back and block a governor's moves during a declared public emergency.

Gov. Eric Holcomb vetoed the law and the legislature overrode the veto. He then sued – arguing it is unconstitutional because the Indiana Constitution gives him the power to call a special session, not the legislature.

Marion Superior Court Judge Patrick Dietrick took the case under advisement. A ruling is expected in the coming weeks.

Richard Blaiklock represented Holcomb in court and kept his arguments simple. He said the Constitution “expressly” gives Holcomb the power to call a special session – not the legislature. Article 4 Section 9 of the Constitution says “if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session.”

He added that “implied powers cannot trump expressed powers.”

Blaiklock told reporters after the argument that “you can't impliedly get that power to the legislature by mixing and matching other provisions.”

He called the new law an “end run around the Constitution” and a violation of the separation of powers doctrine.

But Solicitor General Tom Fisher – representing the legislature – said the new law doesn't delay the effect of a lawful emergency order issued by the governor. It simply gives the people's representatives the right to meet and deliberate and react to those orders.

He focused on a sentence later in the same section of the Constitution. It was added via an amendment in 1970 and says “the length and frequency of the sessions of the General Assembly shall be fixed by law.”

Fisher said it doesn't specify which sessions – regular and special – and therefore applies to them all.

“I think it's crystal clear from the text of the Indiana Constitution the legislature has authority over the length and frequency of its sessions. There's nothing about HEA1123 that is questionable under that text, and we'll hope, the court takes all those arguments very seriously.”

He also noted the legislature previously created technical corrections sessions, which sometimes are held after a regular session to fix errors in bills or act on gubernatorial vetoes. No one has ever challenged those sessions.

Blaiklock said those don't count as a session because “it's a one-day exercise of just cleaning up loose ends.”

Dietrick several times sought to put the dispute into the context of the pandemic – asking at one point if Holcomb's failure to call a special session forced the legislature to pass the new law. Blaiklock said no because the power to call a special session is discretionary.

Also, in 2020 Holcomb asked the GOP legislative leaders if a special session was needed and they said no.

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