02

By Marilyn Odendahl

The Indiana Citizen

November 2, 2023

Even as he was slapped with a public reprimand from the Indiana Supreme Court, Indiana Attorney General Todd Rokita is still defiant, maintaining his statements were “truthful” in his public remarks about an investigation into an Indianapolis OB/GYN and saying he agreed to the punishment to save the taxpayers money.

In a six-page opinion issued Thursday, a majority of the Supreme Court accepted a conditional agreement reached by Rokita and the Indiana Supreme Court Disciplinary Commission – citing Rokita’s “acceptance of responsibility” – which settles a disciplinary case that had been opened against the attorney general. Under the agreement, Rokita is being publicly reprimanded and ordered to pay $250 in fees.

The majority found Rokita’s public statements about Dr. Caitlin Bernard, an OB/GYN at IU Health, in which he called her “an abortion activist” and accused her of failing to properly file medical reports, had no purpose “other than to embarrass or burden the physician.”

In his response to his reprimand, Rokita blamed the disciplinary action on “liberal activists” and said he decided the best thing to do was to accept the punishment.

“Having evidence and explanation for everything I said, I could have fought over those 16 words, but ending their campaign now will save a lot of taxpayer money and distraction, which is also very important to me,” Rokita stated. “In order to resolve this, I was required to sign an affidavit without any modifications.”

Indiana Chief Justice Loretta Rush and Justice Christopher Goff dissented, believing the discipline was too lenient for Rokita, because he is the state’s top lawyer and based on the “scope and breadth” of his misconduct. Neither wrote a separate opinion to explain their stance.

The Supreme Court majority of Justices Derek Molter, Mark Massa and Geoffrey Slaughter pointed to previous disciplinary cases, including one against the late Marion County Prosecutor Carl Brizzi, and concluded a public reprimand was appropriate.

“(Rokita’s) acceptance of responsibility is a mitigating factor, as are his cooperation with the disciplinary process and his lack of prior discipline over a lengthy career,” the majority wrote. “But that same length of experience also ‘counsels that he should have known better’ than to conduct himself in the manner he did.”

However, in his response, Rokita said that his comments about Bernard were “truthful” and “factual.”

“I deny and was not found to have violated anyone’s confidentiality or any laws,” Rokita stated in the press release. “I was not fined. And I will continue as Indiana’s duly-elected attorney general.”

Bernard’s attorney, Kathleen DeLaney of DeLaney and DeLaney, said Rokita should be contrite, instead of combative.

“As part of the settlement agreement, Mr. Rokita admitted to violating two attorney ethics rules by attacking Dr. Bernard on national television,” DeLaney said in an emailed statement. “His public statements should reflect that fact and we expect a prompt and sincere apology to Dr. Bernard.”

A single comment

The disciplinary action focused on an interview Rokita gave on Fox News in July 2022.

A media firestorm was ignited after Bernard confirmed to an Indianapolis Star reporter that she had performed an abortion on a 10-year-old rape victim who had to travel to Indiana from her home state of Ohio because of that state’s restrictive abortion laws. In May, the Medical License Board of Indiana found Bernard had violated patient confidentiality, and reprimanded her as well as imposed a $3,000 fine.

Immediately after the story broke, Rokita  appeared on television, publicly released a letter he sent to Gov. Eric Holcomb related to Bernard, and gave a press conference on Facebook, making statements about Bernard and saying his office was investigating her and looking at taking her medical license.

However, the Supreme Court’s opinion focused on a single statement he made in July 2022, while appearing on Fox News. Rokita said, “We have this abortion activist acting as a doctor – with a history of failing to report.”

As part of the conditional agreement, the Indiana Supreme Court Disciplinary Commission and Rokita agreed he had violated two rules of professional conduct by making that statement. He violated Rules 3.6(a) and 4.4(a) by talking about his office’s investigation into Bernard before it was completed and by making comments meant only to “embarrass, delay, or burden” Bernard.

The Supreme Court majority found during the Fox News interview, Rokita’s comment could have unfairly influenced any proceeding against Bernard. Specifically, the majority wrote that Rokita’s “statement was of a type rebuttably presumed to have substantial likelihood of materially prejudicing an adjudicative proceeding.”

A violation of a third rule was dismissed by the Supreme Court, presumably pursuant to the settlement.

After the disciplinary complaint was filed in September, Rokita filed a response with the Supreme Court. He acknowledged his statement “could reasonably be considered to have violated” the two Indiana Rules of Professional Conduct.

More remarks about Bernard

With the case now decided, the attorney general is not backing down from his original comment on Fox. He stated in his press release that his words “are factual” and that Bernard “is by her own actions an outspoken abortion activist” and “her full-time patient practice focuses exclusively on performing abortions.”

“Bernard also claims a tattoo – an image of a coat hanger – that she displays and openly discusses with the national media,” Rokita stated. “Whether you think this behavior is good or bad, I challenge any objective Hoosier to conclude that she isn’t an ‘abortion activist,’ as I stated.”

In addition, Rokita pointed to unidentified “media accounts and complainant press releases” as making the allegations – well before his television appearance – that Bernard had failed to properly file the required reports with the Indiana State Department of Health.

Planned Parenthood Great Northwest, Hawai’i, Alaska, Idaho, Indiana, and Kentucky, said it was pleased with the reprimand given to Rokita for his “repeated attempts” to harass “Dr. Caitlin Bernard just for doing her job.”

“Rokita’s attacks have no basis in medicine or health care; they are deliberate attempts to scare, silence, and shutter abortion providers in the state,” Planned Parenthood stated. “Two of the Justices in the decision believe the reprimand wasn’t far enough, and we agree. The stigmatizing, shaming, and harassing has to stop and Rokita has made it clear he won’t.”

Taxpayers’ money

Rokita was represented before the disciplinary commission by Schaerr Jaffe, a law firm based in Washington, D.C. Those attorneys also represented the attorney general in Marion County Superior Court in a lawsuit filed by Bernard against Rokita and helped represent the state at Bernard’s hearing before the medical licensing board.

To date, Rokita has not revealed how much public money has been spent defending his law license before the disciplinary commission. A review of invoices from July 2022 through April 2023 shows Rokita’s office has paid Schaerr Jaffe $180,504.94 for all of its work. The Indiana Comptroller has not provided the invoices filed by Schaerr Jaffe since April.

In a previous statement to The Indiana Citizen, Rokita defended the use of taxpayer money in his disciplinary proceeding.

”Of course, public money is involved in any matter which defends the work of a state attorney whose efforts are performed on behalf of the state,” Rokita stated in an email.

The case is In the Matter of Theodore E. Rokita, 23S-DI-258.

This story has been updated to clarify The Indiana Citizen’s characterization of Indiana Attorney General Todd Rokita’s response to being publicly reprimanded. Rokita sent out a press release defending his remarks about Dr. Caitlin Bernard during his investigation of her as being “truthful” and “factual,” and he also said he “was not found to have violated anyone’s confidentiality or any laws.”

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.