Eric J. Holcomb, Governor of the State of Indiana v. Rodric Bray, in his official capacity as President Pro Tempore of the Indiana State Senate and Chairman of the Indiana Legislative Council; Todd Huston, in his official capacity as the Speaker of the Indiana House of Representatives and Vice-Chairman of the Indiana Legislative Council; The Indiana Legislative Council; and The Indiana General Assembly
Supreme Court Case No. 21S-PL-518
Indiana Supreme Court
June 3, 2022
Chief Justice Rush
Argued: April 7, 2022 | Appeal from the Marion Superior Court No. 49D12-2104-PL-14068 | The Honorable Patrick J. Dietrick, Judge
Appeal from the Marion Superior Court
No. 49D12-2104-PL-14068
The Honorable Patrick J. Dietrick, Judge
Opinion by Chief Justice Rush
Justices David, Massa, Slaughter, and Goff concur.
This case presents a dispute between the executive and the legislative branches of our state government over the scope of their respective constitutional authority. The General Assembly enacted a law that allows it to call itself into emergency session, which the Governor challenges as unconstitutionally co-opting a purely executive function.
The question before us is not whether it is sensible for the General Assembly to be able to set an emergency session. We decide only whether the Legislature‘s chosen mechanism is permissible under the relevant constitutional text, which requires the length and frequency of legislative sessions to be “fixed by law.” That is, each session must be specifically set by a bill enacted by the full General Assembly when it is in session. Yet, the challenged law purports to delegate this authority to a small group of legislators and allows them to wield that power outside of session. Under our Constitution, the General Assembly simply cannot do what the challenged law permits absent a constitutional amendment.
Finding that the Governor has satisfied the high burden required to establish that the law is unconstitutional and rejecting the Legislative Parties’ arguments that the suit is procedurally barred, we reverse in part and affirm in part.
Facts and Procedure
During the 2021 legislative session, in the midst of the COVID-19 pandemic, the Indiana House of Representatives introduced the bill that would become House Enrolled Act 1123 (“HEA-1123“). HEA-1123 authorizes the General Assembly to commence an “emergency session” if a small subset of legislators—eight members from each of the two chambers, known as the Legislative Council—adopts a resolution that finds the following:
- The governor has declared a state of emergency that the legislative council determines has a statewide impact.
- It is necessary for the general assembly to address the state of emergency with legislative action.
- It is necessary for the general assembly to convene an emergency session, in accordance with its authority to determine the length and frequency of legislative sessions under Article 4, Section 9 of the Constitution of the State of Indiana.
Pub. L. No. 64, § 4, 2021 Ind. Acts. 731, 733 (codified at
Four days later, Governor Eric J. Holcomb vetoed the bill, writing that he “firmly believe[s] a central part of this bill is unconstitutional.” He went on to explain that, in his view, the law impermissibly gives the General Assembly “the ability to call itself into a special session, thereby usurping a power given exclusively to the governor under
On April 27, Governor Holcomb filed suit against the Indiana State Senate President Pro Tempore and Chairman of the Legislative Council; the Speaker of the Indiana State House of Representatives and Vice-Chairman of the Legislative Council; the Legislative Council; and the Indiana General Assembly (collectively the “Legislative Parties“). Governor Holcomb sought a declaration that certain provisions of HEA-1123 were unconstitutional and an injunction to permanently enjoin enforcement of those provisions.
Three days later, the Indiana Attorney General, appearing on behalf of both the Governor and the Legislative Parties, filed a motion to strike “the appearances and all filings by unauthorized attorneys purporting to represent the Governor of Indiana in this case.” The Attorney General claimed that his office is solely responsible for the state‘s legal representation and that he had not authorized anyone outside of his office to represent the Governor. In response, the Governor asserted he did not need the Attorney General‘s consent to hire outside counsel “when
Soon after, the Governor and Legislative Parties filed cross-motions for summary judgment. The Governor argued the undisputed facts establish that HEA-1123 is unconstitutional and void as a matter of law since it “purports to grant the General Assembly, through its Legislative Council, a constitutional power exclusively granted to the governor.” The Legislative Parties agreed that the facts were undisputed but claimed that they were entitled to summary judgment because HEA-1123 is a lawful exercise of the General Assembly‘s constitutional authority to set its own meeting times. They also set out several procedural arguments as to why the Governor could not pursue the lawsuit, including that the Governor lacks standing, the case is not yet ripe, the Governor lacks the authority to hire outside counsel to bring this suit since he did not first get consent from the Attorney General, and the relief sought by the Governor is barred by the legislative-immunity and political-question doctrines. After a hearing, the trial court rejected the procedural arguments but found that HEA-1123 is constitutional.
The Governor appealed, requesting direct transfer to this Court under Appellate Rule 56(A). We accepted the Governor‘s request.
Standard of Review
We review de novo the propriety of summary judgment and pure questions of law, including constitutional claims and the procedural defenses raised here. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014); City of Hammond v. Herman & Kittle Props., Inc., 119 N.E.3d 70, 78 (Ind. 2019).
The Indiana Constitution vests the executive power of our state in the Governor and the legislative power of our state in the General Assembly.
The General Assembly‘s primary role is to exercise the legislative power of the state, which includes making and enacting laws. Inherent in this function is the ability to deliberate and debate—processes that occur in legislative sessions. Our Constitution provides details on such sessions in
The sessions of the General Assembly shall be held at the capitol of the State, commencing on the Tuesday next after the second Monday in January of each year in which the General Assembly meets unless a different day or place shall have been appointed by law. But if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session. The length and frequency of the sessions of the General Assembly shall be fixed by law.
Here, HEA-1123 permits the sixteen-member Legislative Council to set an emergency session after adopting a resolution at a time when the General Assembly is not in session. The Governor, finding no distinction between an emergency session and a special session and believing the authority to call a special session is vested solely in the executive branch, seeks a declaratory judgment that HEA-1123 is unconstitutional on several grounds. The Legislative Parties dispute those claims and also present several procedural reasons why the Governor should not be permitted to bring them in the first place.
We hold that HEA-1123 violates
Although we begin our discussion with an analysis of the constitutional challenges to HEA-1123, we first carefully considered the Legislative Parties’ threshold procedural arguments for why we should not reach the merits of the Governor‘s claims. And while several of the procedural arguments are novel, we ultimately find none of them persuasive. In the end, we affirm in part and reverse in part.
The Governor claims that HEA-1123 violates three provisions of the Indiana Constitution:
Recognizing that HEA-1123 authorizes an emergency session to be set by resolution, the Governor asserts that HEA-1123 violates
In addressing these arguments, we are mindful that all laws come “before us clothed with the presumption of constitutionality unless clearly overcome by a contrary showing.” Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013) (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)). Thus, the Governor bears a high burden to show that HEA-1123 is unconstitutional, and we will resolve any doubts about the law‘s constitutionality in the Legislature‘s favor. Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1273 (Ind. 2014).
Thus, to resolve the Governor‘s constitutional claims, we first examine the history and evolution of the constitutional provisions conferring gubernatorial power to call a special session and those granting and restricting legislative control over the length and frequency of sessions.
A. History shows that the framers and ratifiers of our Constitution have conferred upon the General Assembly increasing control and flexibility over legislative sessions.
Indiana Governors have always had the constitutional authority to call a legislative session, but the scope of that authority has changed. The 1816 Constitution authorized the Governor to convene the General Assembly “in extraordinary occasions.”
In the years following adoption of the 1816 Constitution, there were several unsuccessful attempts to call a convention to amend the document. While myriad reasons for revision were offered, among the “major issues” identified were limiting the frequency and length of legislative sessions, allowing the General Assembly to fix “the time and place of meetings,” and addressing the “governor‘s authority to call
One meaningful change was to the placement of the Governor‘s authority to convene the Legislature. That power was removed from the executive-branch article and a similar provision was added to the legislative-branch article authorizing the Governor to call a special session “by proclamation.”
Recognizing that the convention had already agreed to impose biennial sessions, Delegate Jacob Chapman of Marion County noted that the General Assembly‘s power had been reduced by “at least fifty percent” and warned that expanding gubernatorial authority over special sessions “would nearly annihilate” the remaining legislative power. Debates, supra, at 1068. Delegate Horace Biddle of Cass County went further in his criticism, calling one of the proposals “the worst provision that has been introduced into this body” and opining that it “would bring the legislative power to the feet of the Executive.” Id. at 1069. He remarked, “If there is a power in the State that should be kept free, above all others, it is the Legislative; and if there is a power to be restricted, it is the Executive.” Id. Ultimately, the delegates not only moved the Governor‘s power to call special sessions into the legislative-branch article but also rejected the proposals to expand that power.
The sessions of the General Assembly shall be held biennially at the capital of the State, commencing on the Thursday next after the first Monday in January, in the year one thousand eight hundred and fifty-three, and on the same day of every second year thereafter, unless a different day or place shall have been appointed by law. But if, in the opinion of the Governor, the public welfare shall require it, he may at any time by proclamation, call a special session.
By the mid-twentieth century, the magnitude and complexity of state government had grown substantially and showed no signs of slowing down. This trend resulted in a nationwide effort by state legislatures to regain their position as a coequal branch of government, often through constitutional amendments that eased or removed constraints on the length and frequency of sessions. Ind. Legis. Council, Fall Referendum to Be Held on 3 Amendments, 4 Legis. Ledger 3, 1–2 (July 1970); State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wash. 2d 175, 492 P.2d 1012, 1016–19 (1972). One court aptly recognized the obvious “futility of state legislatures attempting to cope with the multiplying problems of modern government in biennial sessions of limited days.” Kinnear, 492 P.2d at 1018 (quoting George S. Blair, American Legislatures: Structure and Process 151–52 (1967)). In Indiana, legal commentators characterized such constitutional restrictions as a “chief problem[] of the legislature” in need of revision. Louis E. Lambert & E.B. McPheron, Modernizing Indiana‘s Constitution, 26 Ind. L.J. 185, 190 (1950–51).
The 1967 General Assembly heeded the recommendation to revise
Meanwhile, in the fall of 1967, the Legislature established the Indiana Constitutional Revision Commission and charged it with “making recommendations relevant to revision of the Indiana Constitution.” Const. Revision Comm‘n, Biennial Report to the Indiana General Assembly 6 (1969). In its report, the Commission concluded that Article 4‘s length-and-
The 1969 General Assembly responded by overwhelmingly approving the proposal, H.R.J. Res. 10, 96th Gen. Assemb., Reg. Sess. (Ind. 1969), meaning the amendment would be placed on the November 1970 ballot. In the interim, the Legislature tasked a committee with studying “the improvements necessary in the legislative process” if the amendment were ratified. Ind. Legis. Process Comm., Report of the Legislative Process Committee i (1969). Realizing that ratification would require the 1971 General Assembly to “enact a law prescribing the length and frequency of future sessions,” the Committee drafted the Legislative Sessions and Procedures Act of 1971. Id. at 3, 5.
Then, just a few months before the ratification vote, the Legislature‘s internal newsletter included an article providing background and analysis on the amendment. Ind. Legis. Council, supra, at 2–3. That article highlighted the additional flexibility the revisions to
That November, the election ballot asked voters whether the Indiana Constitution should “be amended to permit the General Assembly to meet annually instead of biennially, and to establish the length and frequency of its sessions and recesses by law?” The amendment passed. And, during the subsequent legislative session, the General Assembly enacted the Legislative Sessions and Procedures Act, rendering the amendment‘s
This history and evolution are telling. Changes from the 1816 Constitution to the 1851 Constitution resulted in moving the gubernatorial authority to call a special session from the executive-branch article to the legislative-branch article, rejecting proposals to increase the Governor‘s control over such sessions, and imposing significant restrictions on the length and frequency of sessions. Then, when the restrictions proved untenable, they were removed by constitutional amendment. And, notably, that amendment‘s addition to
B. The General Assembly has unique constitutional authority over the length and frequency of its sessions, but because it must exercise that authority “by law,” it can be done only when in session.
Emphasizing that
Both the Governor and the Legislative Parties paint with too broad a brush. Any session set by the General Assembly must be fixed through a properly enacted bill, not a simple resolution. And thus, when the General Assembly is not in session, it cannot set an additional session. Because HEA-1123 authorizes the Legislative Council to set an emergency session by resolution, the law violates
1. By authorizing the Legislative Council to set an emergency session through a simple resolution, HEA-1123 does not comply with Article 4, Section 9‘s fixed-by-law requirement.
With the passage of the 1970 amendment to
An emergency session under HEA-1123 meets this requirement on the length, see
Further, a simple resolution does not fix anything “by law.” See, e.g., May v. Rice, 91 Ind. 546, 551 (1883). Indeed, a simple resolution is “inferior in efficiency to both a concurrent and a joint resolution, each of which is, in its turn, less effective, as the expression of legislative will, than a bill where enacted into a law.” Rice v. State, 95 Ind. 33, 46 (1884). Aside from
For these reasons, HEA-1123 violates
2. By authorizing the Legislative Council to set an emergency session at a time when the General Assembly is not in session, HEA-1123 infringes on constitutional authority vested only in the Governor.
Our distribution-of-powers provision mandates that no person, charged with official duties under one of the three branches of government, “shall exercise any of the functions of another, except as in this Constitution expressly provided.”
The framers and ratifiers of the 1851 Constitution viewed sessions as a function of the legislative branch and the Governor‘s limited power to call a special session as an exception to that function. Indeed, at the 1850–1851
Further supporting this conclusion is the limited nature of the Governor‘s authority over special sessions. Indeed, the Governor can neither control the agenda of a special session, Woessner v. Bullock, 176 Ind. 166, 93 N.E. 1057, 1058 (1911), nor set its duration,
In fact, the plain meaning of the length-and-frequency clause indicates that the General Assembly can set additional sessions. That clause uses “sessions,” plural, authorizing the General Assembly to set their length and frequency as long as it does so by law. From the time that clause was proposed in 1967 to its ratification in 1970, legislators understood the revision would provide them with increased flexibility to respond to the needs of the state as they arise. See Ind. Legis. Council, supra, at 2; Const. Revision Comm‘n, supra, at 18. Further, the ballot language describing the amendment informed ratification voters of the General Assembly‘s broad new power to modify session frequency and thus call additional sessions. The ballot description concisely asked voters if
In short, the history and plain meaning of the length-and-frequency clause reveal that the gubernatorial special-session authority is an “expressly provided”
Though the Legislature can set additional sessions, to do so at a time when the General Assembly is not in session violates our Constitution‘s distribution-of-powers mandate.
We now turn to the Legislative Parties’ threshold arguments that the Governor was procedurally barred from bringing this lawsuit. Though we discuss these claims after having concluded that HEA-1123 is unconstitutional, we thoroughly considered them before reaching that decision. And, as we explain below, we find each argument unpersuasive.
The Governor here seeks a declaratory judgment that HEA-1123 is unconstitutional and a corresponding injunction to prevent the law from being enforced. In addition to challenging the merits of the Governor‘s claims, the Legislative Parties assert numerous procedural arguments and contend that, for any one of these reasons, we need not address the above constitutional claims. They argue the Governor cannot bring a declaratory action since he is not a “person” authorized to seek declaratory relief under Indiana‘s Declaratory Judgment Act (DJA). And since, they insist, the Governor “is in no immediate danger of suffering a direct injury” from HEA-1123, he lacks standing and his claims are not ripe. They also assert the Governor lacks the unilateral authority to sue without the Attorney General‘s consent, which he did not receive. And they would have us find that both the legislative-immunity and the political-question doctrines bar the Governor from seeking injunctive relief against the Legislature. We ultimately disagree with each claim and note that some of them implicate further separation-of-powers concerns.
A. The Governor is a “person” with standing to seek a declaratory judgment, and his claims are ripe to decide.
Declaratory judgments are an expeditious and economical way to decide controversies while there is still time for “peaceable judicial settlement.” Volkswagenwerk, A.G. v. Watson, 181 Ind. App. 155, 390 N.E.2d 1082, 1084–85 (1979), trans. denied. They allow courts to declare the rights of parties and to express an opinion on a question of law without necessarily ordering the parties to take any specific action. See
Any person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or
franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Notably, though the Legislature did not define what it meant to be “affected by a statute” under the second requirement, we find it requires a plaintiff must have standing and that their claims must be ripe. See Zoercher v. Agler, 202 Ind. 214, 172 N.E. 186, 189 (1930). Standing asks whether a litigant is entitled to have a court decide the substantive issues of the claims presented, Solarize Ind., Inc. v. So. Ind. Gas & Elec. Co., 182 N.E.3d 212, 216 (Ind. 2022), while ripeness asks whether the claim is sufficiently developed to merit judicial review, Ind. Dep‘t of Env‘t Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994). The Legislative Parties argue the Governor‘s claims do not—and cannot—satisfy these threshold requirements.3
We find that the Governor has made the third showing—he questions the validity of several statutes. But the remaining requirements are less clear: whether he is a “person” under the DJA, whether he has standing, and whether his claims are ripe for adjudication. We address each in turn.
1. The Governor is a “person” under the DJA.
The Legislative Parties assert that the Governor does not fall within the DJA‘s definition of “person“; the Governor responds that he—as a
Our goal when interpreting a statute is to determine and further the Legislature‘s intent. West v. Off. of Ind. Sec‘y of State, 54 N.E.3d 349, 353 (Ind. 2016). Noting that the statute is the best evidence of that intent, we “first examine whether the language of the statute is clear and unambiguous.” State v. Am. Fam. Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008). We construe statutes only where there is some ambiguity requiring our construction. Id.
The DJA‘s definition of “person” is ambiguous. The list of potential litigants includes “any person.”
The Legislature included “any person” as part of a list that also includes partnerships, LLCs, joint stock companies, unincorporated associations, societies, and corporations.
The Legislative Parties assert that the Governor—as a state official—cannot be a “person” under this definition based on our decision in Indiana Fireworks Distributors Association v. Boatwright, 764 N.E.2d 208. We find that case distinguishable. There, we explained that state agencies and the officials that represent them cannot seek declaratory relief because they are not “persons” under the DJA. Id. at 210; see also Ind. Wholesale Wine & Liquor Co., Inc. v. State ex. rel. Ind. Alcoholic Beverage Comm‘n, 695 N.E.2d 99, 103 (Ind. 1998). Importantly, however, the state official in that case did not allege that his own rights, statuses, or relationships would be directly or personally affected by the relief he sought. Boatwright, 764 N.E.2d at 209–10. The same is not true here.
The Governor, state official or not, is a person vested with specific constitutional rights and powers including the authority to call a special session.
2. The Governor has standing.
Standing requires litigants to demonstrate a sufficient injury before a court can decide the substantive issues of their claims. Solarize, 182 N.E.3d at 217. The Legislative Parties claim the Governor has not experienced an injury and is not in any immediate danger of suffering an injury stemming
We initially note that, as a threshold issue, we determine standing by looking at a lawsuit‘s allegations—not its outcome. See id. at 215; see also Pence v. State, 652 N.E.2d 486, 487 (Ind. 1995). And so, without regard to our decision on the merits of the Governor‘s claims, we address the Legislative Parties’ argument that the Governor has not suffered a sufficient injury.
An injury must be personal, direct, and one the plaintiff has suffered or is in imminent danger of suffering. Solarize, 182 N.E.3d at 217. Under the DJA, which is designed to allow parties to resolve conflicts while there is still time for “peaceable judicial settlement,” Volkswagenwerk, A.G., 390 N.E.2d at 1084–85, plaintiffs can satisfy the injury requirement by showing their rights are implicated in such a way that they could suffer an injury. See
Looking at the Governor‘s allegations—that HEA-1123 infringes on his constitutional authority to call a special session—we find he has satisfied the injury requirement. He alleges the injury is unique to him, arguing that it is his constitutional power, and his alone, being infringed. The allegations are also clear that HEA-1123 directly caused this injury. Further, while under the DJA we need not find that an injury has occurred or is imminent, the Governor alleges he has already suffered this injury and has been suffering it since HEA-1123 was enacted over his veto.
Moreover, we have previously recognized that an “infringement by the legislative branch of the government on the constitutional power of the executive would be repugnant to the doctrine of separation of powers.” State ex rel. Branigan v. Morgan Superior Ct., 249 Ind. 220, 231 N.E.2d 516, 519 (1967) (per curiam) (citing Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941)). It follows that an allegation of this type of injury—as the Governor has made here—satisfies our injury requirement. Cf. Romer v. Colo. Gen. Assembly, 810 P.2d 215, 220 (Colo. 1991) (“The governor has alleged a wrong that constitutes an injury in fact to the governor‘s legally protected interest in his constitutional power to veto provisions of an appropriations bill. Therefore, the governor has standing to bring this action.“). In short, the Governor has alleged a sufficient injury to establish standing.
3. The question of HEA-1123‘s constitutionality is ripe.
In addition to requiring the person seeking declaratory relief to have standing, claims must also be ripe. See, e.g., Zoercher, 172 N.E. at 189. “[T]here must exist not merely a theoretical question or controversy but a real or actual controversy, or at least the ripening seeds of such a controversy.” Id. In other words, the issues in a case must be based on actual facts rather than abstract possibilities, and there must be an adequately developed record upon which we can decide those issues. Ind. Dep‘t of Env‘t Mgmt., 643 N.E.2d at 336.
The Legislative Parties assert that, since “no HEA 1123 emergency session is in the offing,” the Governor‘s claims are not ripe. They further contend that “the Legislative Council has neither acted nor threatened to act in a manner that would present an immediate danger directly affecting” the Governor‘s constitutional right to call a special session. The Governor counters that an emergency session need not be called for his claims to be ripe and that waiting for a future emergency to challenge the law is “neither prudent nor legally required.” We agree with the Governor.
The dispute here is far from theoretical, and the parties have sufficiently developed a record upon which we can decide the constitutionality of HEA-1123. Since the Governor alleges the law is unconstitutional on its face, we need not consider specific facts about a particular situation in which an emergency session could be called. It is thus unnecessary to wait for the Legislative Council to call an emergency session or a law to be passed during that session. Neither occurrence
Having found the Governor is a person under the DJA who has alleged a sufficient injury to establish standing with claims that are ripe for adjudication, we now consider whether Indiana law required him to first get consent from the Attorney General before bringing this lawsuit.
B. The Governor can hire outside counsel without consent from the Attorney General.
The Legislative Parties next argue that the Governor lacks the authority to bring this action without the consent of the Attorney General. Indiana law is clear that the Attorney General “shall prosecute and defend all suits instituted by or against the state of Indiana.”
In Sendak, we did not “impliedly repeal”
We also emphasize that we cannot and will not tell the Legislature that a statute has been impliedly repealed. Doing so would violate the most fundamental tenets of separation of powers. The legislative branch is responsible for enacting—and repealing—laws. See
The Legislative Parties nevertheless claim
First, that definition applies only to “this chapter“—Title 4, Article 6, Chapter 3.
We also cannot ignore the separation-of-powers implications of what the Legislative Parties ask us to hold: requiring the Attorney General to consent to the Governor bringing this action would effectively give that office veto power over any suit by the Governor it doesn‘t agree with. The Attorney General‘s authority, statutorily granted by the General Assembly, simply cannot trump the Governor‘s implied power to litigate in executing his enumerated power under the take-care clause without violating our Constitution‘s careful distribution of powers. See
To summarize, while the Attorney General‘s office may direct litigation on behalf of state agencies and the state as a whole, it cannot prevent the Governor from bringing a suit and hiring outside counsel to do so. We next address the Legislative Parties’ final two procedural arguments—that the legislative-immunity and political-question doctrines bar the Governor from bringing this suit.
C. Neither the legislative-immunity doctrine nor the political-question doctrine bars us from deciding the constitutionality of HEA-1123.
The Legislative Parties finally assert that two defenses unique to the Legislature protect them from the Governor‘s suit: the legislative-immunity doctrine and the political-question doctrine. Since we find
1. The legislative-immunity doctrine protects legislators from challenges to their personal conduct, not from constitutional challenges to bills they pass.
The federal legislative-immunity doctrine derives from the Speech and Debate Clause of the United States Constitution which protects legislators from being “questioned” outside of the Capitol for “any Speech or Debate” that occurs “in either House.”
The Legislative Parties nevertheless ask us to expand our state constitutional protection to cover any legislative act and then apply it to bar the Governor‘s suit. But, notably, even if we were to expand the doctrine, it is intended to protect individual legislators, not the Legislature. See, e.g., Gravel v. United States, 408 U.S. 606, 615–16 (1972). And it protects them from personal liability for things said in resolutions, reports, and open sessions and for the act of voting. Kilbourn, 103 U.S. at 204. Indeed, the test for application of the federal doctrine is whether the conduct at issue is “an integral part of the deliberative and communicative processes” by which legislators participate in legislative proceedings. Gravel, 408 U.S. at 625. It is thus not meant to prevent a court from declaring a law unconstitutional. See Romer, 810 P.2d at 225; see also Walker v. Jones, 733 F.2d 923, 925 (D.C. Cir. 1984).
Here, though individual legislators are named in this suit, it does not seek to hold them personally liable for anything they said or did in
But even if we adopted an expanded form of the doctrine, the only way it could help the Legislative Parties here is by protecting members from being compelled to testify or produce documents relating to their intentions, motivations, and activities concerning the passage of HEA 1123. See League of Women Voters of Pa. v. Commonwealth, 177 A.3d 1000, 1005 (Pa. Commw. Ct. 2017). And nothing in the record suggests that the Governor seeks such information. Cf. Knights of Columbus v. Town of Lexington, 138 F. Supp. 2d 136, 139 (D. Mass. 2001) (finding the “individual and inner-most thoughts” of legislators, which would be protected, are “simply . . . not controlling on the issue of constitutionality of legislation“). Thus, even if we were to expand the legislative-immunity doctrine, it is simply inapplicable here.
2. The political-question doctrine does not apply since setting legislative sessions is not solely a legislative-branch function.
The political-question doctrine prevents courts from getting involved in the internal matters of the legislative branch. Berry v. Crawford, 990 N.E.2d 410, 417–18 (Ind. 2013). It raises a question of justiciability—whether we should decline to hear a case due to “prudential concerns over the appropriateness of a case for adjudication.” Id. at 418. Specifically, “where a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limitation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution.” Id. at 421; see also State ex rel. Masariu v. Marion Superior Ct. No. 1, 621 N.E.2d 1097, 1098 (Ind. 1993). The Legislative Parties claim that the issue before us is such a political question involving the internal matter of scheduling a legislative session. We disagree.
Conclusion
The Governor is not procedurally barred from seeking declaratory relief on the constitutionality of HEA-1123, and we hold that the law is unconstitutional. By allowing the Legislative Council to set an emergency session by simple resolution, HEA-1123 violates Article 4, Section 9‘s fixed-by-law requirement. And, by permitting the Legislative Council to set an emergency session at a time when the General Assembly is not in session, HEA-1123 infringes on constitutional authority vested only in the Governor and thus violates Article 3, Section 1. Simply put, absent a constitutional amendment under Article 16, the General Assembly cannot do what HEA-1123 permits. This does not, however, mean the Legislature lacks the constitutional authority to set additional sessions. While our Constitution authorizes only the Governor to call a special session, the General Assembly can set additional sessions—but only by fixing their length and frequency in a law passed during a legislative session and presented to the Governor.
We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.4
David, Massa, Slaughter, and Goff, JJ., concur.
John C. Trimble
A. Richard M. Blaiklock
Aaron D. Grant
Michael D. Heavilon
Lewis Wagner, LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Thomas M. Fisher
Solicitor General
Patricia Erdmann
Chief Counsel
Jefferson Garn
Section Chief
Julia C. Payne
Melinda R. Holmes
Deputy Attorneys General
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE INDIANA CONSTITUTIONAL SCHOLARS
Josh S. Tatum
Andrea K. Townsend
Yuning Tian
Plews Shadley Racher & Braun LLP
Indianapolis, Indiana