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

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

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

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

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.

20. Defendant Huston is the Speaker of the Indiana State House of Representatives. In this role, he is a member of the Legislative Council codified under Indiana Code section 2-5-1.1-

21. The Indiana General Assembly is Indiana’s statewide legislative department which is made up of the Indiana State Senate and Indiana State House of Representatives.

JURISDICTION AND VENUE

22. This Court has jurisdiction over this matter pursuant to Indiana Rule of Trial

Procedure 4.4(A)(1).

23. Venue is proper in this Court pursuant to Indiana Rule of Trial Procedure 75(A)(5) as Marion County is the county where the Citizen resides and is also the county where the office of the governmental organization to which the claim relates is located.

24. Declaratory relief is authorized by Indiana Code section 34-14-1 and Indiana Rule of Trial Procedure 57.

FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

I. Part Time Status of Indiana General Assembly

25. The Citizen reasserts and realleges the allegations set forth in paragraphs 1 through

24 as if fully set forth herein.

26. Since its founding as a state in 1816, Indiana has always maintained a part-time legislature.

27. Under the 1816 Indiana Constitution, the General Assembly was empowered to meet every year in a regular annual session that was to begin on the first Monday of December each year and at no other period unless as directed by law or provided in the Indiana Constitution.

Ind. Const. of 1816, art. III, § 25.

28. In 1851, Indiana adopted a new constitution.

29. As part of the 1851 Indiana Constitution, the frequency of General Assembly’s regular sessions was changed so that the legislative body would only meet in a regular session once every other year. The term for these regular sessions was to be no longer than sixty-one days.

30. During the Convention for the Revision of the Indiana Constitution, the delegates debated at length about multiple provisions in the proposed language in what would later become

Article 4, Section 9. Those debates ranged from discussions on the appropriate days and months to start the legislative session to the benefits of biennial v. annual sessions. However, there was no explicit challenge to or even discussion on the language which allowed the Governor, and the

Governor alone, to call special sessions of the General Assembly. See The Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana

1060-70 (1850).

31. Rather, the delegates seemed to accept and even acknowledged the need for limits on the legislature. See id. at 1067 (“One of the prominent causes of the calling of this Convention was the uncertainty of legislation and the fluctuations of the laws of the State.”); Id. at 1068

(“Almost the entire weight of this Convention seems to be directed against the legislative department . . . . I will not deny that this spirit is in accordance with the present sentiments of the people . . . . The people are right as to the bad character of our past legislation.”).

32. In fact, the only debate about the power of the Governor with respect to Article 4,

Section 9 appeared to come from a proposed amendment by Mr. Hendricks from Shelby County to the language (which ultimately was not adopted) that would have limited any special session to whatever topics were so designated by the Governor in his call for the special session. Id. at 1067.

During the debate on this proposed amendment, it was noted: “The object of the provision is to throw the responsibility of the exercise of the executive power in calling the Legislature together, upon the Executive. He is an officer who is set apart to superintend the public interest, and he is to be held responsible for any extraordinary expense that may be brought upon the people by any act of his. He is by the specification of the objects for which the Legislature is called to hold a special session, to show the necessity for such call.” Id. at 1069.

33. In 1970, the Indiana Constitution was amended so that the General Assembly would once again participate in annual regular sessions similar to those that were provided for under the

1816 Indiana Constitution.

34. While the 1970 constitutional amendment provided that the length and frequency of each annual session would be established by statutory law, it did not remove, modify, or even address, the Governor’s exclusive ability to call a special session, which has been a consistent part of the Constitution since its 1851 ratification.

II. Indiana Constitution

35. Article 3, Section 1 of the Indiana Constitution divides the functions of government into three departments – Legislative, Executive, and Judicial – and provides that “. . . no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

36. This division of powers provision “exists not only to protect the integrity of each branch of government, but also to permit each branch to serve as an effective check on the other two.” State v. Monfort, 723 N.E.2d 407, 413 (Ind. 2000).

37. One such function that has been enumerated to the Governor as part of the Indiana

Constitution is the ability to call for a special session of the General Assembly when in his opinion

“the public welfare shall require it.” Ind. Const. art. 4, § 9.

38. Specifically, under Article 4, Section 9 of the Indiana Constitution:

The sessions of the General Assembly shall be held at the capitol of the State, commencing on the Tuesday next after the second Monday in January of each year in which the General Assembly meets unless a different day or place shall have been appointed by law. But if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session. The length and frequency of the sessions of the General Assembly shall be fixed by law. (emphasis added). 39. Article 4, Section 9 of the Indiana Constitution also sets forth the only two types of legislative sessions which may occur: the regular annual session and the aforementioned special sessions which may be called by the Governor.

40. Nowhere else in the Indiana Constitution does it permit anyone other than the

Governor to call for a special session of the General Assembly.

41. The Indiana Supreme Court has routinely determined that when the Constitution assigns a power to one branch of government, it assigns that sole and exclusive power to that

branch. See, e.g., In re: Jud. Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350,

332 N.E.2d 97 (1975) (holding that a senate enrolled act provision relating to the qualification of county judges and requiring the Indiana Supreme Court to fix a standard of examination less than that fixed as a requirement to practice law violated the separation of powers clause of the Indiana

Constitution).

42. Nowhere in the Indiana Constitution does it provide the members of the General

Assembly with the power to reconvene themselves for an “emergency session” in which legislation may be considered or passed.

III. House Enrolled Act 1123

43. On or about April 5, 2021, the General Assembly passed HEA 1123.

44. HEA 1123 has been titled as “AN Act to amend the Indiana Code concerning public safety.”

45. Section 10 of HEA 1123 provides that “[a]n emergency is declared for this act.”

46. By including an emergency clause in HEA 1123, the provisions of the act shall become in full force and effect upon enactment. This is different than legislation passed without an emergency clause which generally would not take effect until such time as the law has been published as part of the annual session acts on or about July 1 of the current year. Ind. Const. art.

4, § 28.

47. Section 4 of HEA 1123 creates what the General Assembly has deemed

“emergency sessions” of its body and provides that “[t]he general assembly shall convene under this chapter if the legislative council adopts a resolution that finds all of the following:

(1) The governor has declared a state of emergency that the legislative council determines has a statewide impact. (2) It is necessary for the general assembly to address the state of emergency with legislative action.

(3) It is necessary for the general assembly to convene an emergency session, in accordance with its authority to determine the length and frequency of legislative sessions under Article 4, Section 9 of the Constitution of the State of Indiana.”

48. The “legislative council” referred to in Section 4 of HEA 1123 is codified at Indiana

Code section 2-5-1.1-1 and is comprised of members of the Indiana State Senate and Indiana State

House of Representatives.

49. Pursuant to Indiana Code section 2-5-1.1-2, the President Pro Tempore of the

Indiana State Senate shall be the chairman of the Legislative Council in even number years while the Speaker of the Indiana State House of Representatives shall be the chairman of the Legislative

Council in odd number years.

50. Pursuant to Section 4 of HEA 1123 the Legislative Council’s resolution calling for an “emergency session” is required to state: (1) the reasons that it is necessary for the General

Assembly to convene to address the state of emergency; (2) the date, time, and place when each house of the General Assembly will convene; and (3) the General Assembly’s agenda for addressing the state of emergency.

51. Section 4 of HEA 1123 further provides the following limitations to what the general assembly may do during an “emergency session”:

(1) “[a]n emergency session may not continue for more than forty (40) calendar days after the day the session first convenes”; (2) the General Assembly “may enact only bills relating to the agenda stated in the legislative council’s resolution during an emergency session.” (3) [t]he General Assembly “may adopt concurrent resolutions during an emergency session.” (4) “[e]ach house may adopt simple resolutions during an emergency session.”

52. Pursuant to Indiana Code section 2-3-1-4, members of the General Assembly are provided with a per diem and expense reimbursement for every day when the General Assembly is in session. The statute applies to both regular and special sessions.

53. The compensation of the General Assembly comes from the public treasury which is comprised, in part, of tax revenue that is paid by Indiana taxpayers, such as the Citizen.

54. 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.

55. On or about April 6, 2021, Defendants Bray and Huston signed HEA 1123, and sent it to Governor Holcomb for his signature.

56. On or about April 9, 2021, Governor Holcomb vetoed HEA 1123. Concurrently with his veto, Governor Holcomb issued a veto statement which read in part that:

I am vetoing HEA 1123 because I firmly believe a central part of this bill is unconstitutional. The legislation impermissibly attempts to give the General Assembly the ability to call itself into a special session, thereby usurping a power given exclusively to the governor under Article 4, Section 9, of the Indiana Constitution. As such, it seeks to accomplish that which the Indiana Constitution clearly prohibits.

57. On or about April 15, 2021, both houses of Indiana’s General Assembly voted by simple majority to override Governor Holcomb’s veto.

IV. Current Constitutional Emergency

58. Regardless of the name given, emergency sessions are just special sessions under a different name.

59. The emergency sessions are one-time sessions, non-recurring in nature, as opposed to regular sessions of the General Assembly which occur every year.

60. Nowhere in the Indiana Constitution is the General Assembly empowered with the ability or function to call or create an entirely new category of legislative session, and in fact, the power for the former is explicitly given to the Governor.

61. “[I]n exercising the judicial function of government,” the judiciary has the power and “the inevasible duty” in cases such as these “to declare legislative enactments void when that body has, in such an enactment, gone beyond or outside of the power granted to it.” Ellingham v.

Dye, 178 Ind. 336, 387, 391, 99 N.E. 1, 19, 21 (1912).

62. “In fact, the ability of an independent judiciary to check the other branches and declare statutes unconstitutional ‘was one of the central principles underlying the thinking of the framers of the Indiana Constitution and also the Constitution of the United States.’” Holcomb v.

City of Bloomington, 158 N.E.3d 1250, 1263 (Ind. 2020) (quoting Monfort, 723 N.E.2d at 413

(relying on The Federalist No. 78, at 426, 428-29 (Alexander Hamilton) (E.H. Scott ed., 1894), and Noble Cnty. Council v. State ex rel. Fifer, 234 Ind. 172, 181-82, 125 N.E.2d 709, 714 (1955))).

63. The Indiana Constitution sets limits that the General Assembly cannot cross. One of those limits is in Article 4, Section 9 which grants the Governor the exclusive power to convene a special session when, and only when, in his opinion, the public welfare requires it. Any attempt by the General Assembly to call a special session itself is a prohibited exercise by one department of a function of another department.

64. As evidenced by the above, there is “at least the ripening seeds of a controversy,”

City of Bloomington, 158 N.E.3d at 1256, which directly affects all Indiana residents, and the

“question has arisen affecting such right which ought to be decided in order to safeguard such right” as well as the correct operation of state government. Town of Munster v. Hluska, 646 N.E.2d

1009, 1012 (Ind. Ct. App. 1995).

COUNT I (House Enrolled Act 1123 Is Unconstitutional Under Indiana Constitution Article 3, Section 1 and Article 4, Section 9)

65. The Citizen reasserts and realleges the allegations set forth in paragraphs 1 through

64 as if fully set forth herein.

66. Under Article 3, Section 1 of the Indiana Constitution, a power that is given to one department of Government shall not be taken away by another department of Government unless expressly provided for in the Indiana Constitution.

67. Article 4, Section 9 of the Indiana Constitution grants to the Governor the sole and exclusive authority to call a special session of the General Assembly.

68. HEA 1123 is an unconstitutional violation of the distribution of powers doctrine of the Indiana Constitution and should be declared unconstitutional.

69. HEA 1123 usurps the Governor’s sole and exclusive authority granted to that office under the Indiana Constitution by providing the Legislative Council with the authority to call for a special session of the General Assembly under the guise of an “emergency session.”

70. A declaratory judgment will effectively solve the problem at issue; will serve a useful purpose; and is the most effective or efficient remedy for the problem at issue.

WHEREFORE, the Citizen, by counsel, respectfully requests that this Court issue a declaratory judgment that Sections 2(3)(c), 4(2),(7),(8),(9),(10), and 5(9) of House Enrolled Act

1123 violate Article 3, Section 1 and Article 4, Section 9 of the Indiana Constitution to the extent that they usurp the Governor’s sole and exclusive power to call a special session of the General

Assembly; a permanent injunction prohibiting the Legislative Council from calling an “emergency session” of the General Assembly; an award of nominal damages in the amount of $1; and all other just and proper relief.

COUNT II (Permanent Injunction) 71. The Citizen reasserts and realleges the allegations set forth in paragraphs 1 through

70 as if fully set forth herein.

72. Article 3, Section 1 of the Indiana Constitution states: “The powers of the

Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

73. Article 4, Section 9 of the Indiana Constitution provides, in part, that: “if, in the opinion of the Governor, the public welfare shall require it, he may at any time by proclamation, call a special session.”

74. Citizen seeks injunctive relief to enforce the specific mandates of the Indiana

Constitution.

75. Unless the Defendants are permanently enjoined from having the ability to call for an “emergency session” of the General Assembly, it will create significant uncertainty and solidify the controversy over the constitutionality of any actions that are taken by the General Assembly during an “emergency session,” as all such legislative actions that are taken during an unconstitutional “emergency session” will be void and thus open and subject to legal challenges to set them aside.

76. Granting a permanent injunction in favor of Citizen will not disserve the public interest and will further the public interest of enforcing the Indiana Constitution.

WHEREFORE, the Citizen, by counsel, respectfully requests that this Court issue a permanent injunction prohibiting Sections 2(3)(c), 4(2),(7),(8),(9),(10), and 5(9) of House

Enrolled Act 1123 from taking effect and prohibiting the legislative council from calling an

“emergency session” of the General Assembly; and all other just and proper relief.

Respectfully submitted,

McNEELYLAW LLP

/s/J. Lee McNeely J. Lee McNeely, Attorney No. 9542-73 Cynthia A. Bedrick, Attorney No. 21547-49 Scott A. Milkey, Attorney No. 32070-49 McNeelyLaw LLP 2177 Intelliplex Drive, Suite 251 Shelbyville, IN 46176 Tel: 317.825.5110 Fax: 317.825.5109 Emails: [email protected] [email protected] [email protected]