Holcomb Appeals - Part 3

IN THE INDIANA COURT OF APPEALS
CAUSE NO. ________________________
ERIC J. HOLCOMB, GOVERNOR OF THE ) Appeal from the
STATE OF INDIANA, ) Marion Superior Court 12
)
Plaintiff, )
) Trial Court
vs. ) Case No. 49D12-2104-PL-014068
)
RODRIC BRAY, in his official capacity as the )
President Pro Tempore of the Indiana State Senate, ) The Honorable Patrick Dietrick,
and chairman of the Indiana Legislative Council, ) Judge
TODD HUSTON, in his official capacity as the )
Speaker of the Indiana State House of )
Representatives, and vice-chairman of the Indiana )
Legislative Council, THE LEGISLATIVE )
COUNCIL, as established by Indiana Code )
§ 2-5-1.1-1, and THE INDIANA GENERAL )
ASSEMBLY, )
)
Defendants. )
GOVERNOR ERIC J. HOLCOMB’S VERIFIED MOTION FOR TRANSFER
PURSUANT TO IND. APPELLATE RULE 56(A)
Governor Eric J. Holcomb (“Governor Holcomb”), by counsel, pursuant to Ind. Appellate
Rules 34 and 56(A), requests that the Supreme Court accept Emergency Transfer of this
appeal. In support, Governor Holcomb states:
INTRODUCTION
This separation-of-powers dispute between Indiana’s Governor and the Indiana General
Assembly involves a “substantial question of law of great public importance” under App. R. 56(A).
Because of the nature of this constitutional dispute and the COVID-19 pandemic, “an emergency

2
exists requiring a speedy determination” of this case, rendering it appropriate for Emergency
Transfer.
This case is about whether the General Assembly’s passage of House Enrolled Act 1123
(“HEA 1123”) improperly usurped a power exclusively vested in Indiana governors by the Indiana
Constitution, and by doing so, whether the General Assembly has (a) fundamentally altered the
delicate separation-of-powers balance established by the Constitution, and (b) unconstitutionally
denied Indiana citizens their right to vote upon a proper constitutional amendment.
Central to this dispute is the meaning of Articles 4 § 9 and 3 § 1 of our Constitution. Article
4 § 9, states:
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. (Emphasis added).
Article 3 § 1, states:
The powers of the Government are divided into three separate departments; the
Legislative, the Executive including the Administrative, and the Judicial: and
no person, charged with official duties under one of these departments, shall
exercise any of the functions of another, except as in this Constitution
expressly provided. (Emphasis added).
Together, those provisions mean that when a constitutional power has been expressly
vested in one branch of government – here, a governor’s authority to call a “special session” – for
that power to concurrently exist in another branch, that power must be “expressly provided” for
elsewhere in the Constitution. The General Assembly has no express constitutional authority to
call a “special session.”

3
In April 2021, the General Assembly passed HEA 1123, which purports to vest in a
Legislative Council the authority to call an “emergency session of the general assembly.” Ind.
Code § 2-2.1-1-1(3)(C)(2021).1
What HEA 1123 calls an “emergency session” is, in reality, a
“special session” under Article 4 § 9. The General Assembly has thus unconstitutionally created
for itself the power to call a “special session.”
The General Assembly can obtain the right to call a “special session,” if done through a
proper constitutional amendment. The Court need look no further than Kentucky to see what our
General Assembly could have done. Kentucky’s Constitution, like Indiana’s, expressly vests the
authority call a special session only in its governor. Ky. Const. § 80. To further the Kentucky
legislature’s desire to have the same ability, it passed a proposed constitutional amendment that
will be submitted to Kentucky voters for approval. Cameron v. Beshear et al, 2021-SC-0107-1,
Aug. 21, 2021, p.32 n.24 (Ky. 2021) (Hughes, J., concurring). But the Indiana General Assembly
has failed to do likewise, instead attempting to legislatively vest itself with a power that can only
be granted to it by a proper constitutional amendment.
“[A]n emergency exists requiring a speedy determination” that warrants Emergency
Transfer. The COVID-19 pandemic remains ongoing and winter may bring another increase in
infections.2
In 2021, our General Assembly has, for the first time, extended its session for the
entirety of 2021. Its 2022 session is currently scheduled to end on March 14, 2022. If HEA 1123
remains enforceable beyond that 2022 date, and after which the Legislative Council calls the
General Assembly into an “emergency” (special) session under HEA 1123 and passes laws
1
HEA 1123 is codified at I.C. § 2-2.1-1.2-1 et seq. and I.C. § 2-2.1-1-1(3)(C).
2
See https://fox59.com/news/doctors-concerned-about-the-cold-weathers-impact-on-covid-19s-
spread/ (last accessed October 20, 2021)(“The temperatures are dropping and the COVID-19
cases are rising, which doctors expected.”).

4
thereunder, the constitutionality of those laws will be in question and subject to legal challenge.
Failure to obtain a definitive decision by this Court before then could leave Indiana citizens, and
the proper functioning of state government, in a state of uncertainty during an emergency. That
outcome is potentially dangerous and is also bad public policy.
Indiana citizens deserve a definitive answer whether HEA 1123 is constitutional before the
end of the 2022 session. That is unlikely to occur absent Emergency Transfer. This Court is the
final arbiter of the meaning of our Constitution, and should this Court agree and overturn the Trial
Court’s Order, then prompt resolution of this case will afford the General Assembly time during
its 2022 session to consider other options. For these reasons, and others set forth below, Governor
Holcomb respectfully requests that this Court grant Emergency Transfer.
FACTUAL AND PROCEDURAL BACKGROUND
HEA 1123 allows the Legislative Council3
to convene a session of the General Assembly
during a state of emergency; to establish the date, time, and place that each house of the General
Assembly will convene; and to establish an agenda. I.C. §2-2.1-1.2-7. The Legislative Council
may take these actions without any formal vote of the full General Assembly. Id. Governor
Holcomb vetoed HEA 1123 on April 9, 2021, which was overridden on April 15, 2021. HEA
1123 went into effect that day.
On April 27, 2021, Governor Holcomb filed his Complaint for Declaratory Judgment
and Injunctive Relief, Exhibit A (the “Complaint”), seeking both a declaration that HEA 1123
was unconstitutional, and permanent injunctive relief enjoining its enforcement. The
Defendants (collectively, “Appellees”) moved to strike Governor Holcomb’s Complaint on
3
The “Legislative Council” is a composed of only sixteen General Assembly members. I.C. § 2-
5-1.1-1.

5
April 30, 2021. The Trial Court denied the Motion to Strike on July 3, 2021. The Appellees
sought writs from this Court, both of which were denied.
On August 6, 2021, Governor Holcomb and the Appellees filed cross-motions for
summary judgement. Exhibit B, Exhibit C. On August 23, 2021, the parties filed their
responses. Exhibit D, Exhibit E. The Trial Court heard arguments on September 10, 2021.
On October 7, 2021, the Trial Court entered its Order, Exhibit F, rejecting the myriad
procedural and jurisdictional arguments advanced by the Appellees, but holding that HEA
1123 is constitutional. Governor Holcomb has appealed that decision.
REASONS WHY EMERGENCY TRANSFER IS WARRANTED
I. The Trial Court’s Order Is Wrong
A. Article 4 § 9 Of Indiana’s Constitution Expressly Grants The Power To
Call A “Special Session” Only To The Governor
This case involves a constitutional dispute between the executive and legislative
branches of the sort not seen in Indiana since Tucker v. State, 35 N.E.2d 270 (Ind. 1941),
wherein the General Assembly also passed laws designed to usurp the constitutional powers
of Indiana governors. In Tucker, this Court, consistent with the longstanding constitutional
interpretive cannon of expressio unius est exclusio alterius, observed: “If inconsistent
intention must be avoided in construing the express provisions of the Constitution, surely it is
not permitted to imply an intention that conflicts with a definitive and expressed intention.”
Id. at 292 (Emphasis in original). “To write into the Constitution by implication authority for
this Legislature in its discretion to strike down the express grant of all executive powers to the
Governor, and to vest [others] with functions that are everywhere recognized as belonging to
the Governor and to the executive power, would do violence to every known rule of
construction.” Id. (Emphasis added).

6
Respectfully, the Trial Court’s analysis of Article 3 § 1 was error and conflicts with
Tucker. Although citing to Article 3 § 1 in its Order, p. 27, the Trial Court’s analysis does
not meaningfully address a central tenet of Governor Holcomb’s position: because an Indiana
governor’s authority to call a “special session” is expressly vested only in governors, that
same power cannot also be vested by implication in the legislative branch. Article 4 § 9 does
not expressly grant the General Assembly the power to call a “special session,” and so a law
such as HEA 1123 purporting to do so is unconstitutional.
Indiana is one of fifteen states that restrict the ability of a legislature to call a “special
session” and instead vest that authority solely in the governor.4
The General Assembly’s
attempt to pass legislation authorizing itself to call an “emergency” (special) session is not
unprecedented in the United States. See Simpson v. Hill, 263 P.635 (Okla. 1927); People v.
Parker, 3 Neb. 409, 1872 WL 6043 (1872).
In Simpson, in which the legal efficacy of a legislative session was at issue, the
Oklahoma Supreme Court characterized Oklahoma’s separation-of-powers language as
follows:
The last clause, “and neither shall exercise the powers properly belonging to either
of the others,” is an inhibition. It is found in the said article and is strong
language, and used to prevent one of the said branches of state government from
undertaking to do what the organic law of the state directs shall or may be done by
another.
Simpson, 263 P. at 638 (emphasis added). It went on to conclude:
The Constitution made plain, by said section, that the Governor possessed the
power to convoke the Legislature in extraordinary session. This being true, the said
inhibition in the last sentence of said Article 4 expressly forbids the legislative
branch, or any part thereof, from exercising this power. We reach this conclusion
4
There are thirty-five states that provide the legislative branch that power (Exhibit G), with
Kentucky perhaps soon being number thirty-six. Indiana’s legislature knew how to give itself
that power, but decided not to do so through a constitutional amendment.

7
not by an independent interpretation of our constitutional provisions, although they
are so clear there is no room for confusion, unless confusion be the object and aim.
Id. at 639.
The Simpson and Parker cases are relied upon by a leading treatise to conclude that
“[u]nless specifically authorized by constitutional provision, a legislature has no authority to
convene itself in special session, and its actions under an attempt to do so are void.” 1 Sutherland
Stat. Const. § 5:1. Accord, 72 Am. Jur. 2d States, Etc. §46. Despite that authority, and without
mentioning any of it in its Order, the Trial Court reached the opposite conclusion.
Indiana’s legislature has decided not to attempt to amend the Constitution to obtain
concurrent authority with what is presently the express and exclusive authority of Indiana
governors to call “special sessions.” It has instead legislatively vested itself with a power that can
only be granted to it by a proper constitutional amendment. See Ellingham v. Dye, 99 N.E. 1 (Ind.
1912). This Court should grant Emergency Transfer and correct this unconstitutional action.
B. The History Of Article 4 § 9 Does Not Support HEA 1123
The Trial Court also made no mention of, or attempted to reconcile, important
constitutional history that bears directly on the constitutionality of HEA 1123. Under the
well-established “method of interpreting and applying provisions of the Indiana constitution”
set forth in, inter alia, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013), the Trial Court
was required to engage in:
[A] search for the common understanding of both those who framed it and those
who ratified it. Furthermore, the intent of the framers of the Constitution is
paramount in determining the meaning of a provision. In order to give life to their
intended meaning, we examine the language of the text in the context of the history
surrounding its drafting and ratification, the purpose and structure of our
constitution, and case law interpreting the specific provisions. In construing the
constitution, we look to the history of the times, and examine the state of things
existing when the constitution or any part thereof was framed and adopted, to
ascertain the old law, the mischief, and the remedy. The language of each provision

8
of the Constitution must be treated with particular deference, as though every word
had been hammered into place.
The Trial Court only briefly (and incompletely) engaged in that analysis (Order, pp.
21-22), and did not explain how the following undisputed facts (and others) could be
reconciled with its conclusion that HEA 1123 is constitutional.
During the 1850 Constitutional Convention, the delegates discussed the timing of regular
sessions of the General Assembly which had previously been addressed in Article 3 § 25 of the
1816 Constitution. The delegates explained their reasoning for exclusively vesting the authority in
the governor to call a “special session”:
The object of the provision is to throw the responsibility of the exercise of the
executive power in calling the Legislature together, upon the Executive…. If we
cannot trust the Governor so far to superintend the affairs of the State as to give
warning to the representatives of the people of the difficulties that the State has to
encounter, and to take upon himself the responsibility of incurring the expense of a
special session, we had better abolish the office of the Governor altogether.
Report of the Debate and Proceedings of the Convention for the Revision of the
Constitution of the State of Indiana, p. 1069 (1850).
That only a governor can call a “special session” was acknowledged in 1967 when the
General Assembly was contemplating amendments to Indiana’s Constitution:

9
1967 Biennial Report to the Indiana General Assembly, pp. 14-15 (Exhibit H).
Thereafter, the Study Committee on Legislative Operations recommended this
constitutional amendment to Article 4 § 9:
A JOINT RESOLUTION proposing an amendment to section 9, article 4 of the
Constitution of the State of Indiana by changing the frequency of meetings of the
General Assembly from biennial to annual and providing a different means for
calling special sessions of the General Assembly.
***
Section 9 of article 4 of the Constitution of the State of Indiana is amended to read
as follows: Sec. 9. The sessions of the General Assembly shall be held annually
at the capitol of the State, commencing on the first Tuesday after the first Monday
of January, in the year one thousand eight hundred and fifty-three, and on the
same day of every * * * * * 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:
Provided, further, That if, after consultation with the Governor, it is the joint
opinion of the Speaker of the House and the President Pro Tempore of the Senate
that the public welfare shall require it, the Speaker and President Pro Tempore
may, at any time by proclamation, call a special session.
(Id., p. 23)(italicized emphasis in original; bold added).
That proposed text did not pass. Instead, the legislature approved these changes to
Article 4 § 9 (strikethrough deleted, underlined added):
The sessions of the General Assembly shall be held biennially at the capital of
the State, commencing on the Thursday Tuesday next after the first second
Monday of January, in the each year in which the general assembly meets year
one thousand eight hundred and fifty-three, and on the same day or 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. The length and
frequency of the sessions of the general assembly shall be fixed by law.5
5
The proposed amendment also included a schedule that served as a “gap filler” for the date and
length for scheduling the next legislative session. Exhibit I.

10
In 1970, this proposed constitutional amendment was put before the Indiana electorate.
There was no mention on the ballot about authorizing anyone other than the governor to call
a “special session,” which makes sense because the proposed amendment’s text made no
express mention of a change in the exclusive nature of that authority. Indiana voters were
asked this question on their 1970 ballots:
In its first legislative session after that constitutional amendment was approved, the
General Assembly enacted I.C. § 2-2.1-1-1, et seq. (the “Legislative Sessions and Procedures
Law of 1971”). In that Act, the General Assembly defined “special session” as “that period of
time during which the general assembly is convened in session upon the proclamation and call of
the governor under Article 4, Section 9 of the Constitution of the State of Indiana.” Id. at
1(4)(emphasis added). The Act made no mention of the General Assembly having the ability, now
that the 1970 Amendment had passed, to likewise call a “special session”—despite the high
likelihood that most of the legislators who passed that law in 1971 also voted on the proposed
amendment to Article 4 § 9 in 1967, and again in 1969.6
6
If the purpose of the 1970 amendment was to vest authority in the legislature to call a “special
session” – a type of session that often occurs when “[c]rises … arise between regular meetings of
the General Assembly,” supra — it follows that legislators in 1971 would have immediately
established a process to exercise that very power. If the legislature’s intent was to amend the
Constitution in 1970 so that it could call a “special session” during a future crisis, and because
crises are unpredictable by their nature, it makes no sense that it failed to enact a law like HEA
1123 in 1971, instead of doing so 50 years later in the midst of a pandemic.

11
In its Order, the Trial Court made much of a 1984 amendment to the Constitution which
simply removed the “schedule” to the 1970 amendment because it had no further utility. (Order,
p. 22). Any meaning ascribed to the 1984 amendment by the Trial Court is belied by the question
posed to the voters regarding that amendment, which makes no mention of creating a new power
for, or broadening any existing power given to, the General Assembly:
The Trial Court’s reliance on a case from Wisconsin, League of Women Voters of Wis.
v. Evers, 929 N.W.2d 209 (Wis. 2019), Order, p. 21, was misplaced. That case did not involve
the question of whether the Wisconsin legislature could call itself into session – Wisconsin’s
Constitution has only one restriction on its legislature’s ability to do so (“by law”), and “[n]o
one dispute[d] that [its applicable constitutional provision] authorize[d] the Legislature to
meet …‘at such time as shall be provided by law.’”7
Id. at 216. The issue in Evers was the
legal efficacy of how the Wisconsin legislature wielded that authority. This case involves
whether the General Assembly can call itself into a special (emergency) session. Article 4 §
9 answers that question in the negative.
Finally, the Trial Court’s analysis of Article 4 § 9 is flawed textually, and is contrary
to the “inhibition” against implied constitutional authority contained in Article 3 § 1.
Although a thorough analysis of the extent of the Trial Court’s erroneous textual reading
7
“The legislature shall meet at the seat of government at such time as shall be provided by law,
unless convened by the governor in special session….” Wisc. Const. Art. IV, § 11.

12
cannot be set forth in this limited Motion, it is worth noting that the Order fails to import
meaning to certain words (e.g., “each year”), while grafting too much meaning onto others.
For example, the Trial Court makes much of the phrases “length and frequency” and “fixed
by law,” but fails to explain how the “length and frequency” of a “special session” can be
“fixed by law,” when the need for a “special session” involves “[c]rises [that] arise between
regular meetings of the General Assembly,” Exhibit H, and crises are inherently
unpredictable.
This Court should grant Emergency Transfer to address these constitutional issues.
II. Emergency Transfer Is Needed
A. The Issue In This Case Is Of Great Public Importance
This Court has frequently found that questions concerning the constitutionality of laws
constitute “substantial questions of law of great public importance” justifying Emergency
Transfer. For example, this Court has granted emergency transfer to consider whether
Indiana’s Civil Forfeiture Statute violated the Constitution by authorizing reimbursement of
law enforcement costs from forfeiture revenues before revenues were allocated to the
Common School fund. Horner v. Curry, 125 N.E.3d 584 (Ind. 2019). See also Meredith v.
Pence, 984 N.E.2d 1213 (Ind. 2013); Myers v. Crouse-Hinds Div. of Cooper Industries, Inc.,
53 N.E.3d 1160 (Ind. 2016).
Governor Holcomb’s Complaint requires an interpretation of the Indiana Constitution.
Even more critical, his Complaint raises the additional issue of the proper balance of power
between the legislative and executive branches. See Citizen Action Coalition of Indiana v.
Koch, 51 N.E.3d 236, 238, 240 (Ind. 2016) (accepting emergency transfer in case involving
“the delicate balance that must be maintained between the three branches of government.”).

13
Media coverage of this case demonstrates that this constitutional issue is of great public
importance. This lawsuit has been covered by multiple news organizations, including the New
York Times, ABC News, NBC News, U.S. News, and the Indianapolis Star.8
Furthermore,
an individual citizen has filed suit over HEA 1123, demonstrating the importance of the
constitutionality of HEA 1123 to the public. See Whitaker v. The Legislative Council et al,
49D02-2104-PL-014586.
B. An Emergency Exists Requiring Speedy Determination
The issues presented by this appeal also constitute an emergency requiring speedy
determination. As explained above, if a final ruling on HEA 1123’s constitutionality is not
rendered before the 2022 session ends, there is a high likelihood that Indiana will confront a
situation where a law is passed under HEA 1123 during a state of emergency, the efficacy of
which will likely be unsettled to the extent this Court has not yet ruled. That is not an ideal
result for the citizens of Indiana.
Moreover, the violation by one governmental branch of another’s constitutional power
creates an immediate and ongoing harm to the delicate balance of Indiana’s governmental
framework. See generally Romer v. Colorado General 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....”).
8
Wines, Michael, “State Lawmakers Take Aim at the Emergency Powers Governors Have Relied
on in the Pandemic,” The New York Times, March 27, 2021; Whitehurst, Lindsay, “Texas Order
Reflects Growing GOP Vaccine Mandates Hostility,” ABC News, October 12, 2021; Gomez,
Henry, “Growing Number of GOP-led States Seek to Limit Officials’ Power to Respond to Next
Pandemic,” NBC News, June 4, 2021; Associated Press, “Judge Weighing Indiana Governor’s
Suit Over Emergency Law,” U.S. News, September 10, 2021; Lange, Kaitlin, “Indiana Governor,
Attorney General Feud Over Power,” Indianapolis Star, May 28, 2021.

14
If, as Governor Holcomb firmly believes, the General Assembly has impermissibly
usurped his constitutional authority, then each day that goes by without that constitutional
violation being remedied is an afront to the Indiana Constitution. This case involves a grave
constitutional issue that should be resolved as soon as practicable.
To the extent the Appellees respond that there is no “emergency” because the General
Assembly is in an unprecedented “all year” session in 2021 and could presumably do so again
in 2022 if this case is unresolved, that argument should be rejected. That argument ignores
(a) the ongoing nature of the constitutional separation-of-powers injury to Indiana’s
constitutional framework, (b) the fact that HEA 1123 is not limited to situations in which the
General Assembly is not in session, and (c) the fact that there is precedent to legislatures being
called into special sessions even when they are in regular sessions.9
CONCLUSION
Consistent with the urgency of this case, the Trial Court entered final judgment in just
over five months, while appropriately recognizing that the alleged separation-of-powers
constitutional injury is “immediate and ongoing….” Order, p. 8. Governor Holcomb
respectfully asks this Court to expedite resolution of HEA 1123’s constitutionality by granting
this Motion.
Respectfully submitted,
LEWIS WAGNER, LLP
/s/ A. Richard M. Blaiklock____
John C. Trimble, # 1791-49
A. Richard M. Blaiklock, #20031-49
Aaron D. Grant, #25594-49
9
Four states have called special sessions while their regular sessions were ongoing in 2021.
https://www.ncsl.org/portals/1/Documents/ncsl/2021_session_calendar1.pdf (last accessed
August 20, 2021)

15
Michael D. Heavilon, #35251-18
1411 Roosevelt Ave. Suite 102
Indianapolis, IN 46201
Office (317) 237-0500
Facsimile (317) 630-2790
jtrimble@lewiswagner.com
ablaiklock@lewiswagner.com
agrant@lewiswagner.com
mheavilon@lewiswagner.com
Attorneys for Appellants
VERIFICATION
I verify that the foregoing factual representations are true and accurate to the best of my
knowledge and belief.
/s/ A. Richard M. Blaiklock
A. Richard M. Blaiklock
WORD COUNT CERTIFICATE
I verify that this Motion contains no more than 4200 words. I verify that this Motion
contains 4196 words, inclusive of the .pdf inserts.
/s/ A. Richard M. Blaiklock
A. Richard M. Blaiklock

16
CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of October, 2021, a copy of the foregoing was served
on the following parties electronically by using the Court’s IEFS System, and by email.
Thomas M. Fisher
Patricia Orloff Erdmann
Jefferson S. Garn
Kian Hudson
OFFICE OF THE INDIANA
ATTORNEY GENERAL
302 West Washington Street
Indianapolis, IN 46204-2770
/s/ A. Richard M. Blaiklock____
A. Richard M. Blaiklock, #20031-49
LEWIS WAGNER, LLP
1411 Roosevelt Avenue, Suite 102
Indianapolis, IN 46201
Phone: 317-237-0500
Fax: 317-630-2790
rblaiklock@lewiswagner.com

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