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Second lawsuit filed against General Assembly over bill limiting governor’s authority

While Indiana Attorney General Todd Rokita filed a motion for the Marion County Superior Court to strike down Gov. Eric Holcomb’s lawsuit against the General Assembly Friday, a private Indiana citizen was filing his own lawsuit against the General Assembly.

That Hoosier, John Whitaker—a former Indianapolis attorney and special counsel to former Republican Governor Robert Orr—filed the suit in Marion County to stop the General Assembly’s “unconstitutional attempt” to grant itself the power to call itself into special sessions, which it has deemed “emergency sessions.”

House Enrolled Act 1123 passed into law after the legislature overrode the governor’s veto on the bill in early April. The law gives the General Assembly the power to call special sessions during emergencies, which is a power the Indiana Constitution only gives to the governor.

Holcomb (above) filed a lawsuit against the General Assembly April 27, saying a central part of the law is unconstitutional and violates the separation of powers outlined in the state’s constitution.

Whitaker said as a citizen and taxpayer, he wants to “redress the unconstitutional usurpation of the executive powers of the governor … and the resulting costs to taxpayers of unconstitutional legislative sessions.”

James Tierney, lecturer in law at Harvard Law School, former Maine Attorney General and current director of StateAG.org, an educational resource on the office of the state attorney general, said cases where a state governor sues the state legislature are oftentimes resolved by someone else joining the lawsuit.

“Here you have the governor suing. Usually that kind of lawsuit would come from some friends of the governor,” Tierney said. “Usually would be someone who agrees with the governor would bring the lawsuit, and then that takes the governor out of the situation.”

Thierney said after the governor does what he wants to—vetoing a bill—he would typically disappear while someone else brings up the lawsuit, which the attorney general would ethically defend against.

Whitaker said in the lawsuit that the General Assembly is creating uncertainty and confusion by passing HEA 1123.

“If the current emergency worsens or if another public health crisis 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,” the lawsuit states.

Rokita said in a press release the General Assembly cannot be sued while the legislative session is going on, and since it did not fully adjourn April 22, the session is still ongoing until Nov. 15.

However, a spokesperson for the Office of the Indiana Attorney General said the office is currently reviewing Whitaker’s suit.

“In keeping with our statutory directive, the Office of the Attorney General will defend HEA 1123 against an appropriate constitutional challenge timely brought by an external party who claims a real, direct injury—just as we would any other state law,” said the spokesperson.

Tierney said the attorney general’s office is going to naturally defend the law because that’s what it does, “even if the governor doesn’t like it.”

Hope Shrum is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.