Friday, acting as counsel of record on behalf of the State of Indiana – including Governor Holcomb, Senate President Pro Tempore Rodric Bray, Speaker of the House of Representatives Todd Huston, the Legislative Council, and the Indiana General Assembly – the Office of the Attorney General moved to strike an unauthorized lawsuit filed by attorneys purporting to represent the Office of the Indiana Governor in an attempt to invalidate a law enacted by the General Assembly addressing the timing of its own sessions during a future state of emergency.
Despite the suit’s allegations, the legislature’s actions have created no emergency or unique circumstances—the new statute merely lays out a plan to address any future crisis and imposes no injury on anyone, including the Governor, that would provide legal justification for a case to go forward under current Indiana statutes and case law. HEA 1123 is constitutional. This new law leaves untouched the Governor’s constitutional authority to call the General Assembly into special session, merely carrying out the General Assembly’s own constitutional authority to “appoint by law” the day for “commencing” its sessions and to “fix by law” “the length and frequency of [its] sessions.”
Finally, the proposed legal course of action being pursued by the attorneys purporting to represent the Office of the Governor is a threat to the stability and proper functioning of our divided and limited government as it would establish a precedent for governmental branches or officials to sue one another, at taxpayer expense, over abstract disagreements in governing principles. The Constitution does not authorize the judicial branch to resolve disagreements between the other branches over legal policy, even when those disagreements implicate constitutional disputes. The legislature created the Office of the Attorney General precisely to resolve these sorts of disagreements over state legal policy.
