A special counsel to former Gov. Robert Orr has filed a lawsuit on behalf of Hoosier taxpayers against the Indiana General Assembly over House Enrolled Act 1123, arguing, in part, the taxpayers will have to cover the expenses if legislators call themselves back into session.
The new law gives the Legislature the power to call itself into a special session whenever the governor declares a state of emergency that “the legislative council determines has a statewide impact.” Gov. Eric Holcomb vetoed the measure and after the General Assembly overrode the veto, he challenged the law in state court.
John Whitaker is asking the Marion Superior Court to find the law violates the Indiana Constitution and to issue a permanent injunction preventing the law from taking effect. In his complaint, Whitaker emphasized the law creates the potential for confusion and uncertainty during an emergency.
“This unconstitutional usurpation of the Governor’s exclusive constitutional powers creates an ‘extreme circumstance’ warranting immediate judicial intervention,” the lawsuit states. “Any law that is passed during an unconstitutional special session called by the General Assembly risks being deemed void and would lead to uncertainty and confusion for the general public and to the correct operation of state government.”
The complaint, John r. Whitaker v. the Legislative Council, as established by Indiana Code section 2-5-1.1-1, Rodric Bray in his official capacity as the President Pro Tempore of the Indiana State Senate and a member of the Legislative Council, Todd Huston, in his official capacity as the Speaker of the Indiana State House of Representatives and a member of the Indiana Legislative Council, and The Indiana General Assembly, 49D02-2104-PL-014586, was filed April 30 in Marion Superior Court 2. Judge Timothy Oakes is presiding.
The attorneys from the Indiana Attorney General’s office filed an appearance on behalf of the defendants May 14.
Whitaker’s attorneys at McNeely Law declined to comment. Also, Indiana Senate President Pro Tem Rodric Bray and Indiana House Speaker Todd Huston declined to comment on pending litigation.
Democratic Rep. Ed DeLaney, Indianapolis, described the law as an “unnecessary picked fight” designed to energize Republican voters ahead of the 2022 primary election.
“It’s a show,” DeLaney said of HEA 1123. “It’s a publicity stunt before next year’s primary.”
Whitaker echoes Holcomb’s constitutional arguments that HEA 1123 violates Article 4 Section 9 of the Indiana Constitution, which gives the governor the power to call a special session of the General Assembly.
Moreover, he asserts the Legislature’s encroachment upon executive powers will incur extra expenses that will have to be paid by the taxpayers.
“Any additional special session called by the Legislative Council, will also result in additional costs to the taxpayers through additional per diem expenses for the members of the Indiana General Assembly as well as the payment of administrative costs and expenses that would necessarily result from the General Assembly being in session,” the lawsuit states.
DeLaney said the law is written so narrowly the Statehouse will likely never pass legislation under HEA 1123. However, the statute will still have consequences for Hoosiers because, DeLaney maintained, it could prevent the governor from carrying out an effective public health measure during a crisis.
“If I’m Joe Citizen, I don’t want that on the books,” DeLaney said. “…As a citizen I would want this thing struck down so that we could deal with emergencies like they were emergencies.”
Holcomb’s lawsuit has drawn the ire of Attorney General Todd Rokita. In a motion to strike the governor’s legal action, Rokita argues Holcomb cannot pursue the complaint because the attorney general’s office did not give permission for the executive branch to hire outside counsel.
Whitaker contends his lawsuit is permitted by the courts as a way for the public to keep a check on elected officials. Through this use of a public interest lawsuit, he argues, citizens can ensure one branch of government does not unconstitutionally utilize the powers provided exclusively to another branch.
To bolster his point, Whitaker quotes from Horner v. Curry, 125 N.E.3d 584, 608 (Ind. 2019) (CJ Rush concurring in part and dissenting in part), which found “… the public-standing doctrine enables … a check in state government: it permits the People to procure the enforcement of a public right by invoking the judiciary’s guardianship of the Constitution when the constitutional structure has been compromised.”