What Authority Does the Indiana Governor Have to Issue the Stay at Home Order

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We find ourselves living in very unusual times.  Who would have thought that a mere 3 months ago we would be entering into a period of recession based on mandatory government shut down orders designed to protect us from a novel virus?  Certainly, wasn’t on our radar and probably wasn’t on many other’s radar either.  However, as the Governor’s stay at home order has continued, there are those that are starting to question his authority to issue it, maintain it, and enforce it.  Some are declaring it unconstitutional.  So, in today’s blog we have decided to take a look at the Indiana law that authorizes such an order and what it does and does not allow.

The controlling statute that was enacted on July 1, 2010 is I.C. 10-14-3-12.  The title of the law is “Disaster emergencies; emergency gubernatorial powers”.  So, lets take a look at some common questions and utilize this law to answer them.

  1. What is required for the Governor to exercise his emergency powers?  Well, the answer to this is quite simply, he is given broad discretion to decide when to declare an emergency that allows him to exercise the statutes powers.  The Governor can declare a disaster emergency by executive order or proclamation “if the governor determines that a disaster has occurred or that the occurrence or threat of a disaster is imminent.
  2. Surely the Governor can’t just keep this state of emergency in place forever can he? The statute allows the state of emergency to continue until the Governor determines that the threat or danger has passed or that disaster had been dealt with to the extent that emergency conditions no longer exist, and the Governor terminates said declaration.
  3. So the declaration can just go on forever? No, there is a 30 day limitation, however, the Governor can renew the declaration for unlimited 30 day periods.
  4. Surely the legislature has some oversight over this right? Yes the legislature may issue a concurrent resolution terminating a state of disaster emergency at any time.
  5. What powers does this state of emergency give to the Governor? There are several very broad powers given to the governor during a state of disaster emergency.  See number 6 for the authority to issue the stay at home order.  1)  The Governor is the “commander-in-chief of the organized and unorganized militia and of all other forces available for emergency duty.”; 2) the Governor may suspend any order, rules or regulations that would prevent, hinder or delay necessary action in coping with the emergency; 3)  transfer employees of the various state departments to perform or facilitate emergency services; 4)  the Governor may commandeer or use private property deemed necessary to cope with the disaster emergency; 5) assist in the evacuation of parts of the state as necessary to preserve life or mitigate the disaster including controlling the means of travel for said evacuation; 6) This is the one that gives the Governor broad authority to issue a stay at home type order.  The Governor may control ingress to and egress from a disaster area, the movement of persons within the area, and the occupancy of premises in the area;  7) Governor may suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives or combustibles; 8) Governor may provide temporary emergency housing; 9) Governor may allow certain medical related personnel licensed in other states to operate in Indiana; and 10) Governor is given specific authority to allocate drugs, foodstuffs, and other essential materials and services.
  6. Wow, the Governor really is given broad authority during a disaster emergency? Yes, by design the legislature has given the Governor the right to use people’s property, control their movement, and empower the militia to enforce the emergency orders.
  7. Is there any case law challenging this broad authority? Indiana case law is very limited on this statute.  Most of it is in relation to a Governor declaring martial law.  In Cox vs. McNutt, D. Ind. 1935, 12 F.Supp. 355, the court generally found that the Governor had wide discretion in determining whether an emergency existed requiring the utilization of military forces, and if he determined that exigency existed the courts would not interfere therewith.
  8. Well the President said he had ultimate authority, can’t he just terminate the Governor’s order and eliminate the stay at home order in Indiana? Simple answer is no.  The President of the United States does not have the authority to control or override state statutes.  The statute of each individual state is what the governors of each state are relying on to place the emergency orders and those can only be terminated by the process proclaimed in the statute.  In Indiana, the Governor can terminate it or the legislature has the ability to do so by passing a concurrent resolution as outlined in number 4 above.
  9. Well I don’t agree with the Governor I will just do as I please they aren’t going to do anything to me anyway, right? Well, not so fast.  The Indiana legislature created a crime for violating the statute giving the Governor broad powers.  I.C. 10-14-3-34 makes it a class B misdemeanor for a violation.  In Indiana a class B misdemeanor carries up to 180 day in jail.

During these uncharted times, Banks & Brower continues to provide full service to our clients.  We are answering our phones 24/7 and are still able to setup remote appointments, accept online payments, and when necessary meet in person.  All of our systems are electronically based and fully functioning during this crisis.  If you need us give us a call at 317-870-0019.