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Indiana Gov. Eric Holcomb sues over legislation limiting executive powers

Indianapolis Star logo Indianapolis Star 4/30/2021 Amelia Pak-Harvey, Indianapolis Star
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The ongoing power struggle between Gov. Eric Holcomb and the state legislature is now making its way to court.

It's the latest development in the rift between Holcomb and members of his own Republican party who have been perturbed by the governor's extensive ability to declare a state of emergency and issues various mandates during the coronavirus pandemic. 

a person sitting on a bench next to a fence: Indiana Governor Eric Holcomb watches as Georgia Tech faces Loyola in the first round of NCAA March Madness on Friday, March 19, 2021, at Hinkle Fieldhouse in Indianapolis. © Jenna Watson/IndyStar Indiana Governor Eric Holcomb watches as Georgia Tech faces Loyola in the first round of NCAA March Madness on Friday, March 19, 2021, at Hinkle Fieldhouse in Indianapolis.

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Lawmakers introduced House Bill 1123 this session, allowing the General Assembly to call themselves into an emergency 40-day session and distribute discretionary federal funds. 

But Holcomb vetoed the bill, calling it unconstitutional and an encroachment on the governor's exclusive powers. Legislators overrode his veto, the second time they've done so during this legislative session.

Now, Holcomb is suing over the measure, asking a Marion County judge to stop the new law over the objection of Attorney General Todd Rokita, who said he declined to authorize outside counsel to represent Holcomb in the case.

Holcomb has called the bill unconstitutional, noting in his lawsuit that the General Assembly has "impermissibly attempted to give itself the ability to call special sessions, thereby usurping a power given exclusively to the governor under Article 4-9 of the Indiana Constitution."

“If HEA 1123 becomes law and can be used by the General Assembly, it will create significant uncertainty and solidify the controversy over its constitutionality,” Holcomb said in an April 9 letter to Speaker Todd Huston. “This is a matter of immediate and substantial public interest. In addition, any legislative actions taken during an unconstitutional special session will be void and thus open and subject to legal challenges to set them aside.”

“Government should serve as a steady foundation during a time of crisis,” Holcomb continued. “Avoidable legal challenges during a state of emergency will only serve to be disruptive to our state.”

The lawsuit claims that the legislation violates the Indiana Constitution, including a provision that grants the governor the right to call special sessions.

The complaint also cites the constitutional provisions allocating separation of powers between the legislative, executive and judicial branches of state government. 

In an email, Holcomb spokeswoman Rachel Hoffmeyer cited conflict of interest in choosing to pursue outside counsel, noting that Rokita would not be able to represent both sides of a lawsuit.

But in a statement, Rokita said that only he may determine and advocate the legal position of the entire state government.

He said his office declined to authorize outside counsel to represent Holcomb not due to a conflict of interest but to set a "single, unified legal position for the state as a whole."

"The Indiana Supreme Court has also held that no state agency or office holder may file a declaratory judgment action," Rokita said. "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."

House Speaker Todd Huston, who is named in the lawsuit, said in a statement that Holcomb has been transparent about his thoughts and intentions regarding the legislation. 

"We are in consultation with the Indiana Attorney General's office on what the next steps will be in this matter," Huston said. 

Senate President Pro Tempore Rodric Bray, who is also named in the lawsuit, also said that Holcomb had shared his intent to challenge the constitutionality of this law, and the move is not unexpected. 

"As I have said before, there is a fundamental disagreement on the constitutionality of HEA 1123," Bray said in a statement. 

Democrats, meanwhile, jumped to condemn the inner-party infighting.

"It's a real shame that we have to use taxpayer dollars to resolve these needless power struggles," House Democratic leader Phil GiaQuinta, D-Fort Wayne said in a statement. "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."

House Democrats voted no on the bill "because we believe in prioritizing Hoosiers' safety over political attacks," GiaQuinta said. 

The legislation was borne out of the challenges of the coronavirus pandemic, during which Holcomb took criticism for limiting crowd capacities, shutting down non-essential businesses and requiring face masks. 

In early April, Holcomb lifted statewide restrictions around business capacity, which had most recently been dictated on a county level based on the local severity of cases. Holcomb also ended a statewide mask mandate early this month, although cities like Indianapolis are keeping certain restrictions such as its mask mandate in place.  

The new legislation also creates an emergency advisory group, which would advise and consult with the governor on executive orders issued during a state of emergency.

Indiana still remains in a state of public health emergency, which currently expires April 30, 2021.

Call IndyStar reporter Amelia Pak-Harvey at 317-444-6175 or email her at apakharvey@indystar.com. Follow her on Twitter @AmeliaPakHarvey.

This article originally appeared on Indianapolis Star: Indiana Gov. Eric Holcomb sues over legislation limiting executive powers

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