The Indiana General Assembly enacted a law that allowed it to call itself into emergency session and overrode the Governor’s veto. The Governor sued the legislature, challenging the law as “unconstitutionally co-opting a purely executive function.” The Governor argued that under the state constitution, only the Governor can call an emergency session, and this law, which delegated that authority to a group of 16 legislators, unconstitutionally usurps the governor’s authority.
The attorney general of Indiana, entering an appearance for both the legislature and the governor, filed a motion to strike the appearance of the governor’s counsel. The attorney general argued that his office was solely responsible for the state’s legal representation and that he had not authorized anyone outside of his office to represent the Governor. The trial court held that there was no barrier to the governor retaining outside counsel. The district court also held that the governor had standing to bring the suit and that it was not barred by either the political-question or legislative-immunity doctrines, but he found that the law was constitutional. The governor appealed directly to the Indiana supreme court.
The supreme court held that the law was unconstitutional because it “authorized an emergency session to be set through a simple resolution, rather than a properly enacted bill as our Constitution requires.” The court also held that the statute violated the separation of powers “by allowing the setting of an emergency session to occur at a time when the General Assembly is not in session—authority conferred only upon the Governor.”
The court then addressed the question of the governor’s retention of outside counsel, holding that the governor may hire outside counsel without the consent of the attorney general. The court noted that the attorney general is “given the exclusive power to both represent and direct litigation strategy for state agencies and the state.” Although there is another statute that gives the Governor power to hire outside counsel “to protect the interest of the state in any matter of litigation where the same is involved,” the legislature argued that the statute had been impliedly repealed by an earlier decision, State ex rel.
Sendak v. Marion Superior Ct., 268 Ind. 3, 373 N.E.2d 145 (1978). The supreme court distinguished that case because the issue there was whether the Governor could hire private counsel on behalf of a state agency without the attorney general’s consent. Indiana statutes explicitly give the attorney general the exclusive authority to represent state agencies.
The legislature argued that the governor was a “state officer” whom the attorney general had the exclusive authority to represent. The court disagreed, noting that the governor is “not merely an office or officer of the state—he is the head of our state’s executive branch.” Finally, the legislature’s interpretation would “render the governor-specific section . . . meaningless. It is well settled that we must presume the Legislature did not enact a useless provision.” The court concluded,
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.
Holcomb v. Bray, No. 21S-PL-518 (Ind. June 3, 2022).