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State of Indiana ) in the Marion Superior Court ) County of Marion ) Cause No

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State of Indiana ) in the Marion Superior Court ) County of Marion ) Cause No 49D02-2104-PL-014586 Filed: 4/30/2021 3:06 PM Clerk Marion Superior Court 2 Marion County, Indiana STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) COUNTY OF MARION ) CAUSE NO. JOHN R. WHITAKER, ) ) Plaintiff, ) ) 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 Indiana 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, ) ) Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF The Plaintiff, John R. Whitaker (“Citizen”), by counsel, and for his request for declaratory and injunctive relief against the Defendants the Indiana 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 Legislative Council, and the Indiana General Assembly (collectively, the “Defendants”) states the following: INTRODUCTION 1. This case seeks to put a stop to the Indiana General Assembly’s (“General Assembly”) unconstitutional attempt to grant itself the power to call a special session of its body, a function exclusively given to the Governor of the state of Indiana (“Governor”) under the Indiana Constitution. 2. The backdrop to this case is the historic public health crisis that Indiana, along with the rest of the world, has been waging against the coronavirus disease 2019 (“COVID-19”), which has been the single gravest public health threat in over a century. 3. On March 6, 2020, Governor Eric Holcomb, issued Executive Order 20-02, which declared a public health emergency throughout the State of Indiana as a result of the COVID-19 outbreak in the United States and a confirmed report of a Hoosier contracting this virus. Ind. Exec. Order No. 20-02 (March 6, 2020), https://www.in.gov/gov/files/20- 02ExecutiveOrderDeclarationofPublicHealthEmergencyforCOVID-19FINAL.pdf 4. As of the filing of this lawsuit, the State of Indiana remains in a state of emergency as a result of COVID-19 pursuant to Executive Order 21-08 – the Fourteenth Renewal of the Public Health Emergency Declaration For the COVID-19 Outbreak. Ind. Exec. Order 21-11 (April 29, 2021), https://www.in.gov/gov/files/Executive-Order-21-11-Fourtenth-Renewal-of-Emergency- Declaration.pdf 5. Although there are reasons for Hoosiers to be hopeful due to the availability of vaccines for COVID-19 for all Hoosiers over the age of 16, the COVID-19 virus (similar to other viruses) has mutated, and multiple variants have been documented throughout the world, including within Indiana’s borders. Darby Beane, Indiana reporting variant strains in state as COVID-19 positivity rate ticks up slightly, WDRB.com (March 31, 2021), https://www.wdrb.com/news/indiana-reporting-variant-strains-in-state-as-covid-19-positivity- rate-ticks-up-slightly/article_f65ca140-9269-11eb-83b3-af5a478021ed.html (last visited April 28, 2021). Thus far, the COVID-19 vaccines have provided protection against the currently known 2 mutations and variants of COVID-19. However, some of the currently known COVID-19 variants have shown to be as much as fifty percent more contagious as the original COVID-19 strand, and thus it would be a mistake to assume that the war against COVID-19 has concluded. 6. If the current emergency worsens or if another public health crises were to occur, it is essential that the emergency powers of the State are clear to avoid any possibility of future confusion and significant uncertainty arising at the worst possible moment. 7. Yet, the General Assembly has decided to create uncertainty and confusion through its enactment of House Enrolled Act 1123 (“HEA 1123”) which, among other things, grants itself the power to also call for a special session of the General Assembly under the guise of what it calls an “emergency session.” 8. This provision of HEA 1123 is a direct challenge to the Governor’s sole and exclusive power under Article 4, Section 9 of the Indiana Constitution to call a special session of the General Assembly when in his opinion “the public welfare shall require it.” 9. HEA 1123 provides that the “Legislative Council,” codified under Indiana Code section 2-5-1.1-1, and made up of the Defendant Bray, Defendant Huston, and other legislators, has the right and ability to call a special session of the General Assembly, which it labels as an “emergency session.” 10. Regardless of the name given to this new session, it is nothing more than a special session under a different label. Namely, it is one-time and non-recurring in nature, as opposed to regular sessions of the General Assembly which occur every year. The distinction between regular sessions, on the one hand, and special sessions, on the other, was established by Indiana’s 1816 and 1851 Constitutions, which drew bright lines between the two. HEA 1123 would blur and 3 destroy those lines, thereby creating significant uncertainty over the correct operation of state government. 11. This unconstitutional usurpation of the Governor’s exclusive constitutional powers creates an “extreme circumstance” warranting immediate judicial intervention. 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. 12. Representative Matt Lehman, a member of the Legislative Council, has remarked that the legislative branch cannot refrain from passing bills just because it fears the laws will not be found constitutional and “[t]he Constitution will take care of itself.” Kaitlin Lange, Gov. Holcomb opposes attempt by lawmakers to limit his emergency powers, Indianapolis Star (March 11, 2021), https://www.indystar.com/story/news/politics/2021/03/11/indiana-governor-eric- holcomb-emergency-powers-covid/6954306002 (last visited April 28, 2021). 13. At least one of the Defendants, Defendant Huston, has publicly indicated that whether the Legislative Council has the constitutional right to call for an emergency session is a matter for the courts to decide stating that, “It’s just a disagreement. We’ll let the courts decide. We’ll have an answer moving forward.” Katlin Lange, Lawmakers pass bill limiting governor’s emergency powers. It could end up in the courts, Indianapolis Star (April 5, 2021), https://www.indystar.com/story/news/politics/2021/04/05/indiana-covid-mask-mandate- governor-holcomb-emergency-powers-bill/7052905002/ (last visited April 28, 2021). 14. Through the use of public interest lawsuits, the public has the ability to ensure that the powers exclusively provided to one branch of government are not unconstitutionally utilized by another branch of government. When Hoosiers elect an individual to serve in a state office 4 whether in the role of the Governor, a State Representative, a State Senator, a judge, or any other office, they do so with the understanding that each office holder will only perform the roles and responsibilities that have been granted to their specific office under the Indiana Constitution or Indiana law. That is why the individuals who are elected to serve in these state offices take an oath to uphold the Indiana Constitution, and not just any one specific state statute. 15. In the words of one current Indiana Supreme Court Justice “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.” Horner v. Curry, 125 N.E.3d 584, 608 (Ind. 2019) (Rush, C.J., concurring in part and dissenting in part). 16. To that end, Indiana courts have opened their doors to the public to file public interest lawsuits challenging the constitutionality of governmental actions, statutes, and ordinances, which is what Citizen is doing now. See, e.g., Embry v. O’Bannon, 798 N.E.2d 157 (Ind. 2003) (holding that taxpayers have standing to challenge whether Indiana’s dual-enrollment program is violative of the Indiana Constitution’s provision forbidding use of public money “for the benefit of any religious or theological institution.”); Brooks v. State, ex rel. Singer, 162 Ind. 568, 70 N.E. 980 (1904) (allowing a resident of Ripley County, Indiana to challenge the constitutionality of the legislative apportionment act of 1903); Bd. of Comm’rs of Clay Cnty v. Markle, 46 Ind. 96 (1874) (allowing Indiana taxpayers to challenge the constitutionality of statute and county-seat relocation proceedings). PARTIES 17. Citizen is a resident living in Indianapolis, Marion County, Indiana. He is a life- long Hoosier, was the Special Counsel to former Governor Robert Orr (1984-88), and has been a 5 Marion County resident for more than forty years. As an Indiana citizen and taxpayer in good standing, he seeks to redress the unconstitutional usurpation of the executive powers of the Governor of the State of Indiana by the Indiana General Assembly and the resulting costs to taxpayers of unconstitutional legislative sessions. 18. The Legislative Council, as established under Indiana Code section 2-5-1.1-1, is a 16-member committee of the General Assembly tasked with various responsibilities under the Indiana Code. 19. Defendant Bray is the President Pro Tempore of the Indiana State Senate. In his role as the President Pro Tempore, he is a member of the Legislative Council codified under Indiana Code section 2-5-1.1-1.
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