Introduced Version
HOUSE BILL No. 1397
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 4-21.5; IC 10-14-3.
Synopsis: Emergency powers. Provides that in the event of a disaster
emergency, an emergency order issued by a state agency must be
narrowly tailored to serve a compelling public health or safety interest.
Entitles a person to relief if a court determines that the person seeking
judicial relief has been prejudiced by an agency action issued during a
disaster emergency that has not been: (1) applied equally to a similarly
situated person; and (2) narrowly tailored to serve a compelling public
health or safety interest. Provides that the orders, rules, and regulations
made, amended, or rescinded by the governor must be narrowly
tailored to serve a compelling public health or safety interest. Requires
any state or local agency, including the Indiana department of health
and local boards of health, to only impose a restriction that is narrowly
tailored to serve a compelling public health or safety interest. Provides
that any order or proclamation declaring, continuing, or terminating a
local disaster emergency must be narrowly tailored to serve a
compelling public health or safety interest. Provides that, if the disaster
that is the basis of the emergency order impacts an area of the state that
does not exceed the lesser of: (1) 31 counties; or (2) an area that is
inhabited by less than 33 1/3% of the population of Indiana; the state
of emergency expires in 30 days. Provides that the governor may renew
the emergency declaration in 30 day increments not to exceed a period
of 12 months. Provides that all other emergency declarations expire 30
days after the initial date of the governor's executive order and may not
be renewed or extended by the governor without the approval of the
general assembly. Removes the governor's ability to suspend certain
provisions relating to the general assembly, judicial relief of an agency
action during an emergency declaration, or provisions relating to
emergency management disasters.
Effective: Upon passage.
Lindauer
January 11, 2024, read first time and referred to Committee on Public Health.
2024 IN 1397—LS 6225/DI 116 Introduced
Second Regular Session of the 123rd General Assembly (2024)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2023 Regular Session of the General Assembly.
HOUSE BILL No. 1397
A BILL FOR AN ACT to amend the Indiana Code concerning
public safety.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 4-21.5-4-2 IS AMENDED TO READ AS
2 FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 2. (a) The agency
3 shall issue the order under this chapter by one (1) of the following
4 procedures:
5 (1) Except as provided in IC 25-1-9-10, without notice or an
6 evidentiary proceeding, by any authorized individual or panel of
7 individuals.
8 (2) After a hearing conducted by an administrative law judge.
9 (b) The resulting order must include a brief statement of the facts
10 and the law that justifies the agency's decision to take the specific
11 action under this chapter.
12 (c) In the event of a disaster emergency declared under
13 IC 10-14-3-12, the resulting order under this section must be
14 narrowly tailored to serve a compelling public health or safety
15 interest.
16 SECTION 2. IC 4-21.5-5-14 IS AMENDED TO READ AS
17 FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 14. (a) The burden
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1 of demonstrating the invalidity of agency action is on the party to the
2 judicial review proceeding asserting invalidity.
3 (b) The validity of agency action shall be determined in accordance
4 with the standards of review provided in this section, as applied to the
5 agency action at the time it was taken.
6 (c) The court shall make findings of fact on each material issue on
7 which the court's decision is based.
8 (d) The court shall grant relief under section 15 of this chapter only
9 if it determines that a person seeking judicial relief has been prejudiced
10 by an agency action that is:
11 (1) arbitrary, capricious, an abuse of discretion, or otherwise not
12 in accordance with law;
13 (2) contrary to constitutional right, power, privilege, or immunity;
14 (3) in excess of statutory jurisdiction, authority, or limitations, or
15 short of statutory right;
16 (4) without observance of procedure required by law; or
17 (5) unsupported by substantial evidence.
18 (e) In addition to the factors described in subsection (d), in the
19 event of a disaster emergency declared under IC 10-14-3-12, the
20 court shall grant relief under section 15 of this chapter if it
21 determines that a person seeking judicial relief has been prejudiced
22 by an agency action that has not been:
23 (1) applied equally to a similarly situated person; and
24 (2) narrowly tailored to serve a compelling public health or
25 safety interest as described in IC 4-21.5-4-2(c).
26 The governor is prohibited from suspending any provision of this
27 subsection under the governor's authority to suspend statutes
28 under IC 10-14-3-12.
29 SECTION 3. IC 10-14-3-11, AS AMENDED BY P.L.56-2023,
30 SECTION 69, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
31 UPON PASSAGE]: Sec. 11. (a) The governor has general direction and
32 control of the agency and is responsible for carrying out this chapter.
33 In the event of disaster or emergency beyond local control, the
34 governor may assume direct operational control over all or any part of
35 the emergency management functions within Indiana.
36 (b) In performing the governor's duties under this chapter, the
37 governor may, subject to sections 12.5 and 12.7 of this chapter, do the
38 following:
39 (1) Make, amend, and rescind the necessary orders, rules, and
40 regulations to carry out this chapter with due consideration of the
41 plans of the federal government. However, the orders, rules,
42 and regulations that have been made, amended, or rescinded
2024 IN 1397—LS 6225/DI 116 3
1 must be narrowly tailored to serve a compelling public health
2 or safety interest.
3 (2) Cooperate with the President of the United States and the
4 heads of the armed forces, the Federal Emergency Management
5 Agency, and the officers and agencies of other states in matters
6 pertaining to emergency management and disaster preparedness,
7 response, and recovery of the state and nation. In cooperating
8 under this subdivision, the governor may take any measures that
9 the governor considers proper to carry into effect any request of
10 the President of the United States and the appropriate federal
11 officers and agencies for any emergency management action,
12 including the direction or control of disaster preparations,
13 including the following:
14 (A) Mobilizing emergency management forces and other tests
15 and exercises.
16 (B) Providing warnings and signals for drills, actual
17 emergencies, or disasters.
18 (C) Shutting off water mains, gas mains, and electric power
19 connections and suspending any other utility service.
20 (D) Conducting civilians and the movement and cessation of
21 movement of pedestrians and vehicular traffic during, before,
22 and after drills, actual emergencies, or other disasters.
23 (E) Holding public meetings or gatherings.
24 (F) Evacuating and receiving the civilian population.
25 (3) Take any action and give any direction to state and local law
26 enforcement officers and agencies as may be reasonable and
27 necessary for securing compliance with this chapter and with any
28 orders, rules, and regulations made under this chapter.
29 (4) Employ any measure and give any direction to the Indiana
30 department of health or local boards of health as is reasonably
31 necessary for securing compliance with this chapter or with the
32 findings or recommendations of the Indiana department of health
33 or local boards of health because of conditions arising from actual
34 or threatened:
35 (A) national security emergencies; or
36 (B) manmade or natural disasters or emergencies.
37 However, any state or local agency, including the Indiana
38 department of health or local boards of health, shall only
39 impose a restriction that is narrowly tailored to serve a
40 compelling public health or safety interest.
41 (5) Use the services and facilities of existing officers, agencies of
42 the state, and of political subdivisions. All officers and agencies
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1 of the state and of political subdivisions shall cooperate with and
2 extend services and facilities to the governor as the governor may
3 request.
4 (6) Establish agencies and offices and appoint executive,
5 technical, clerical, and other personnel necessary to carry out this
6 chapter, including the appointment of full-time state and area
7 directors.
8 SECTION 4. IC 10-14-3-12, AS AMENDED BY P.L.99-2021,
9 SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
10 UPON PASSAGE]: Sec. 12. (a) The governor shall declare a disaster
11 emergency by executive order or proclamation if the governor
12 determines that a disaster has occurred or that the occurrence or the
13 threat of a disaster is imminent. Except as provided in subsection (b),
14 the state of disaster emergency continues until the governor: earlier of
15 the following:
16 (1) The governor:
17 (A) determines that the threat or danger has passed or the
18 disaster has been dealt with to the extent that emergency
19 conditions no longer exist; and
20 (2) (B) terminates the state of disaster emergency by executive
21 order. or proclamation.
22 (2) If the disaster that is the basis of the emergency order
23 impacts an area of the state:
24 (A) that does not exceed the lesser of:
25 (i) thirty-one (31) counties; or
26 (ii) an area that is inhabited by less than thirty-three and
27 one-third percent (33 1/3%) of the population of the state
28 as determined in accordance with IC 1-1-3.5-3;
29 thirty (30) days, but the governor may renew the
30 emergency declaration in thirty (30) day increments not to
31 exceed a period of twelve (12) months; or
32 (B) that is not described in clause (A), thirty (30) days after
33 the initial date of the governor's executive order, and the
34 state of disaster emergency may not be renewed or
35 extended by the governor without the approval of the
36 general assembly.
37 An executive order issued under this section must indicate the
38 nature of the disaster, the specific area or areas impacted by the
39 disaster, and the conditions which have brought the disaster about
40 as well as the conditions that make possible termination of the state
41 of disaster emergency. An executive order under this section shall
42 be disseminated promptly by means calculated to bring the order's
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1 contents to the attention of the general public. Unless the
2 circumstances attendant upon the disaster prevent or impede, an
3 executive order shall be promptly filed with the secretary of state
4 and with the clerk of the city or town affected or with the circuit
5 court clerk of the county affected.
6 (b) A state of disaster emergency may not continue for longer than
7 thirty (30) days unless the state of disaster emergency is renewed by the
8 governor. The general assembly, by concurrent resolution, may
9 terminate a state of disaster emergency at any time. If the general
10 assembly terminates a state of disaster emergency under this
11 subsection, the governor shall issue an executive order or proclamation
12 ending the state of disaster emergency as described in subsection (a).
13 All executive orders or proclamations issued under this subsection
14 must indicate the nature of the disaster, the area or areas threatened,
15 and the conditions which have brought the disaster about or that make
16 possible termination of the state of disaster emergency. An executive
17 order or proclamation under this subsection shall be disseminated
18 promptly by means calculated to bring the order's or proclamation's
19 contents to the attention of the general public. Unless the
20 circumstances attendant upon the disaster prevent or impede, an
21 executive order or proclamation shall be promptly filed with the
22 secretary of state and with the clerk of the city or town affected or with
23 the clerk of the circuit court.
24 (b) (c) An executive order or proclamation of a state of disaster
25 emergency renewed or extended under this section:
26 (1) activates the disaster response and recovery aspects of the
27 state, local, and interjurisdictional disaster emergency plans
28 applicable to the affected political subdivision or area; and
29 (2) is authority for:
30 (A) deployment and use of any forces to which the plan or
31 plans apply; and
32 (B) use or distribution of any supplies, equipment, materials,
33 and facilities assembled, stockpiled, or arranged to be made
34 available under this chapter or under any other law relating to
35 disaster emergencies.
36 (c) (d) During the continuance of any state of disaster emergency,
37 the governor is commander-in-chief of the organized and unorganized
38 militia and of all other forces available for emergency duty. To the
39 greatest extent practicable, the governor shall delegate or assign
40 command authority by prior arrangement embodied in appropriate
41 executive orders or regulations. This section does not restrict the
42 governor's authority to delegate or assign command authority by orders
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1 issued at the time of the disaster emergency.
2 (d) (e) In addition to the governor's other powers, and subject to
3 sections 12.5 and 12.7 of this chapter, the governor may do the
4 following while the state of emergency exists:
5 (1) Unless otherwise prohibited by law, suspend the provisions
6 of any regulatory statute prescribing the procedures for conduct
7 of state business, or the orders, rules, or regulations of any state
8 agency if strict compliance with any of these provisions would in
9 any way prevent, hinder, or delay necessary action in coping with
10 the emergency.
11 (2) Use all available resources of the state government and of
12 each political subdivision of the state reasonably necessary to
13 cope with the disaster emergency.
14 (3) Transfer the direction, personnel, or functions of state
15 departments and agencies or units for performing or facilitating
16 emergency services.
17 (4) Subject to any applicable requirements for compensation
18 under section 31 of this chapter, commandeer or use any private
19 property if the governor finds this action necessary to cope with
20 the disaster emergency.
21 (5) Assist in the evacuation of all or part of the population from
22 any stricken or threatened area in Indiana if the governor
23 considers this action necessary for the preservation of life or other
24 disaster mitigation, response, or recovery.
25 (6) Prescribe routes, modes of transportation, and destinations in
26 connection with evacuation.
27 (7) Control ingress to and egress from a disaster area, the
28 movement of persons within the area, and the occupancy of
29 premises in the area.
30 (8) Suspend or limit the sale, dispensing, or transportation of
31 alcoholic beverages, explosives, and combustibles.
32 (9) Make provision for the availability and use of temporary
33 emergency housing.
34 (10) Allow persons who:
35 (A) are registered as volunteer health practitioners by an
36 approved registration system under IC 10-14-3.5; or
37 (B) hold a license to practice:
38 (i) medicine;
39 (ii) dentistry;
40 (iii) pharmacy;
41 (iv) nursing;
42 (v) engineering;
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1 (vi) veterinary medicine;
2 (vii) mortuary service; and
3 (viii) similar other professions as may be specified by the
4 governor;
5 to practice their respective profession in Indiana during the period
6 of the state of emergency if the state in which a person's license
7 or registration was issued has a mutual aid compact for
8 emergency management with Indiana.
9 (11) Give specific authority to allocate drugs, foodstuffs, and
10 other essential materials and services.
11 SECTION 5. IC 10-14-3-29, AS AMENDED BY P.L.99-2021,
12 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
13 UPON PASSAGE]: Sec. 29. (a) A local disaster emergency:
14 (1) may be declared only by the principal executive officer of a
15 political subdivision; and
16 (2) may not be continued or renewed for more than seven (7) days
17 except by or with the consent of the governing board of the
18 political subdivision.
19 Any order or proclamation declaring, continuing, or terminating a local
20 disaster emergency shall be given prompt and general publicity and
21 shall be filed promptly in the office of the clerk of the political
22 subdivision, and must be narrowly tailored to serve a compelling
23 public health or safety interest.
24 (b) The effect of a declaration of a local disaster emergency is to:
25 (1) activate the response and recovery aspects of all applicable
26 local or interjurisdictional disaster emergency plans; and
27 (2) authorize the furnishing of aid and assistance under the plans.
28 (c) An interjurisdictional agency or official may not declare a local
29 disaster emergency unless expressly authorized by the agreement under
30 which the agency functions. However, an interjurisdictional disaster
31 agency shall provide aid and services according to the agreement.
32 (d) If a local disaster emergency is declared under this section, the
33 political subdivision may not prohibit individuals engaged in
34 employment necessary to:
35 (1) maintain a safe rail system;
36 (2) restore utility service; or
37 (3) provide any other emergency public service;
38 from traveling on the highways within the political subdivision during
39 the local disaster emergency.
40 (e) If a local disaster emergency is declared under this section, the
41 political subdivision may not prohibit individuals trained and certified
42 as first response broadcasters, as set forth in section 22.5 of this
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1 chapter, from traveling on the highways within the political subdivision
2 during the local disaster emergency.
3 (f) If a local emergency is declared under this section, the political
4 subdivision may not prohibit individuals trained and certified as first
5 response communications service providers, as set forth in section 22.6
6 of this chapter, from traveling on the highways within the political
7 subdivision during the local disaster emergency.
8 (g) If a local emergency is declared under this section, the political
9 subdivision must comply with sections 12.5 and 12.7 of this chapter.
10 SECTION 6. IC 10-14-3-35 IS ADDED TO THE INDIANA CODE
11 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
12 UPON PASSAGE]: Sec. 35. The governor is prohibited from
13 suspending any provision of:
14 (1) IC 2;
15 (2) IC 4-21.5-5-14(e); or
16 (3) this chapter;
17 under the governor's authority to suspend statutes under section
18 12 of this chapter.
19 SECTION 7. An emergency is declared for this act.
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