14

By Marilyn Odendahl

The Indiana Citizen

November 14, 2023

(Editor’s note: this story has been corrected to clarify Indiana Attorney General Todd Rokita was reprimanded for violating two rules of professional conduct.)

Indiana Attorney General Todd Rokita is trying to prevent his disciplinary complaint from being entangled in appellate court arguments over whether to release a report about his previous employment with Apex Benefits.

Rokita has filed a motion to strike in Theodore Edward Rokita v. Barbara Tully, 23A-PL-705. He claims Barbara Tully’s mention of the disciplinary complaint against him in her reply brief is “immaterial and inappropriate” in this case.

He asserts in his motion filed Nov. 2 that the reference exposes the “naked partisanship” of Tully and her attorney, William Groth of Bowman & Vlink in Indianapolis. Also, Rokita argues that bringing in the disciplinary complaint “did not contribute to the substantive legal issues at hand and appeared to be a deliberate attempt to impugn his reputation rather than engaging in a productive legal discourse.”

Groth, according to the attorney general’s motion to strike, filed a disciplinary complaint against Rokita in December of 2022.

Multiple disciplinary complaints were filed against the attorney general,  after he made several inflammatory comments about Dr. Caitlin Bernard, an Indianapolis OB/GYN, and revealed his office was investigating her in the summer of 2022. Bernard was targeted by Rokita after The Indianapolis Star reported she had provided abortion care to a 10-year-old Ohio rape victim.

The Indiana Supreme Court recently gave Rokita a public reprimand for violating two rules of professional conducts for his remarks about Bernard on Fox News. Rokita’s comment – calling Bernard “an abortion activist acting as a doctor with a history of failing to report” – was found to be an extrajudicial statement that could prejudice an adjudicative proceeding and had no substantial purpose other than to embarrass or burden Bernard.

Tully asserts in her response to Rokita’s motion that she is raising the disciplinary complaint because Rokita’s answer to his conduct regarding Bernard contrasts with his argument for keeping the opinion on his employment private.

As Tully explains, Rokita claims the informal advisory opinion from the state inspector general on his previous employment is confidential under state law. He contends he cannot make the advisory opinion public even though his office has claimed the inspector general found his private sector job did not conflict with his public duties. Yet, Rokita also argues he was able to speak about the ongoing investigation into Bernard, because she spoke publicly first about her medical treatment of the Ohio girl.

“Rokita is asking this Court to give him the benefit of a double standard,” Tully argues in her response in opposition to Rokita’s motion to strike. “He claims that although he did not waive his right to confidentiality by making a public claim of complete exoneration, the physician’s vague and unspecific public comments had waived her right to confidentiality.”

After he was sworn into office as attorney general in January 2021, Rokita continued to moonlight with Apex Benefits. His office said an informal advisory opinion from the Inspector General of Indiana did not find any conflict of interest with him keeping the job in the private sector, while he also served as the state’s top lawyer.

Tully filed a lawsuit in July 2021 seeking access to the report. The Marion County Superior Court found the document was public and ordered Rokita to release it. However, the trial court did allow Rokita to redact as much as he wanted.

Rokita appealed the ruling and Tully cross-appealed, fighting the redactions in the report and the denial of her attorney fees.

In his motion to strike, Rokita accuses Tully of straying beyond the arguments she raised in her original cross-appeal. Rokita asserts Tully is “attempting to take another bite out of the briefing apple” by continuing to address issues in her appeal which have already been briefed, namely whether he waived confidentiality and the legislature’s passage of an amendment – at Rokita’s request – during the waning hours of the 2023 session, which made informal advisory opinions confidential.

“Ms. Tully’s inclusion of waiver and separation of powers arguments, which were exhaustively briefed by both parties, is in violation of this Court’s rules prohibiting new arguments on reply,” Rokita argues in his motion. “Allowing Ms. Tully to introduce these arguments in her reply would unjustly favor her, as it would enable her to use her reply in support of her cross-appeal to elaborate on the issues she did not sufficiently address in her Appellee Brief.”

However, Tully maintains that under court precedent, she has the ability to raise the waiver issue as part of her cross-appeal, because it supports her argument for affirming the trial court’s ruling. Moreover, she asserts that Rokita’s motion to strike from her reply brief the separation of powers argument is “frivolous,” since the legislature acted after the trial court had rendered its decision.

“Were this Court to grant Rokita’s motion to strike those arguments from her Reply, she would have had but a single opportunity (i.e., in her Response Brief) to brief this weighty constitutional issue, while Rokita (both in his opening brief and again in his reply) had two,” Tully argues. “It is Rokita who seeks two bites of the apple while limiting Tully to one.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.