Trial court greenlights second lawsuit against Legislature

The taxpayer’s lawsuit against the Indiana General Assembly for granting itself the ability to call legislators into special session has survived both a motion to certify an interlocutory order for appeal and a motion to stay, with the trial court rejecting the same arguments that were made in response to the lawsuit filed by Gov. Eric Holcomb over the same issue.

John Whitaker, former special counsel to Indiana’s 45th governor, Robert Orr, filed a complaint in Marion Superior Court after the Legislature overrode Holcomb’s veto of House Enrolled Act 1123. The law gives the General Assembly the power to convene an emergency session if the governor has declared a state of emergency.

Like Holcomb does in his lawsuit, Whitaker asserts the statute violates the separation of powers. Specifically, he argues Article 4, Section 9 of the Indiana Constitution only gives the governor the ability to call a special session of the General Assembly.

The Legislature had filed a motion to continue Whitaker’s lawsuit, arguing the legislators have immunity as granted by Article 4, Section 8 of the Indiana Constitution and codified by Indiana Code section 2-3-5-1. Together, provisions prohibit senators and representatives from being subject to any civil process until the legislative session has formally ended for at least 30 days.

The Indiana General Assembly has not officially adjourned from its 2021 session. Instead, the leaders recessed so the members could be called back this month to draw and vote on the new legislative and congressional district maps.

When Marion Superior Judge Timothy Oakes denied the request for a continuance, the Legislature filed a motion for an interlocutory appeal and a motion to stay the proceedings pending the appeal. The defendants reiterated their arguments from the motion to continue.

These arguments mirror the ones the Legislature put forth in its motion for an interlocutory appeal in the governor’s lawsuit. Ultimately, the defendants turned to the Indiana Supreme Court for relief, but the justices denied the attempt and prohibited any additional petitions for rehearing.

Whitaker, in his responses to the defendants’ motions, argued for efficiency and, citing Indiana Appellate Rule 14(B)(1)(c), “a more orderly disposition of the case.” Speculating the defendants will make several attempts to get the matter to the appellate courts, he requested the court allow the case to proceed so the parties could work through the substantive merits of the constitutional issues.

“Instead, the finite resources of Indiana’s court system would be far better served by allowing the Defendants to consolidate any appellate review of the legal issues in this case, including any issues it may have related to the Court’s Order, after the Court issues its final judgment in this matter,” Whitaker asserted.

Oakes did not write separately in denying both motions. However, he did remind the parties that local rules require motions to be accompanied by proposed orders.

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