Attorney General Curtis Hill has issued an advisory opinion saying Gov. Eric Holcomb should call a special legislative session to consider a statewide mask mandate instead of making the decision himself.
Holcomb on Wednesday said an executive order for Hoosiers to wear masks will go into effect Monday. Later Wednesday evening, Hill’s office issued a press release challenging the governor’s authority to issue that mandate.
Hill, who lost the nomination for a second term at the Republican State Convention in June, issued the opinion after five Republican state senators asked him for his official opinion. Those who asked were Jim Buck, Blake Doriot, Aaron Freeman, Mark Messmer and Jim Tomes. None responded to interview requests.
“This opinion is not an argument for or against masks, but it is about the process,” Hill said in his letter.
Even though the opinion is advisory and Holcomb doesn’t have to act upon his suggestions, Hill said the governor’s action is unconstitutional because the governor’s order to wear masks has criminal penalties for people who violate it.
In his briefing Wednesday, Holcomb said that those who fail to follow the mask mandate will be charged with a Class B misdemeanor, which can be punishable by as much as $1,000 in fines and 180 days in jail.
Misdemeanor offenses stay on a person’s criminal record for life unless they successfully petition the court for those records to be expunged or sealed.
In his opinion, Hill said that before a conduct is determined to be subject to criminal penalty, it should receive considerable debate by the legislature, which represents the people of the state.
Hill said that the act of attaching criminal penalty to the mandate makes it a law, which the governor doesn’t have the authority to craft or issue on his own, not even even under the Emergency Management and Disaster Law.
“Pursuant to the Indiana Constitution, and the laws of our great state, if a mask mandate is to be a law, it is up to the General Assembly to make that determination,” Hill said in the opinion.
He said the Indiana General Assembly has not — and cannot — delegate law-making authority to the governor. Therefore, he wants Holcomb to call a special legislative session.
Normally, the legislature does not convene until late November for a one-day organizational session before returning full-time in January.
In the letter, Hill also said there is less of a sense of immediate emergency.
However, on Thursday, Indiana recorded the highest single-day number of confirmed COVID-19 cases since the beginning of the pandemic — 954 new cases for a new total 59,602.
The Indiana State Department of Health also reported 17 more deaths, totaling 2,683 Hoosiers who have died from the virus.
The state’s Democratic nominee for attorney general, Jonathan Weinzapfel, released a statement Thursday saying he does not agree with Hill’s opinion, and he supports Holcomb’s mask mandate.
“As Indiana’s next attorney general, there will be times I disagree with state leaders on issues, but this isn’t one of them,” Weinzapfel said. “The future of our state is at stake and I hope my Republican opponent and elected leaders from both parties join me in standing by this order.”
At an event Thursday, Holcomb was asked whether he believed he had the legal authority to impose the mask mandate.
The governor replied, “I wouldn’t have said it if I didn’t believe it. I do believe it.”
He added that his staff had done its research on the issue.
Hope Shrum is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.