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By Marilyn Odendahl
The Indiana Citizen
August 30, 2024

The Indiana Supreme Court has declined to hear the dispute over an inspector general’s report on Indiana Attorney General Todd Rokita’s former moonlighting gig, upholding a lower court’s decision which applied a last-minute change to state statute to find the report was confidential.

In an order issued Aug. 22, the Supreme Court denied transfer to Rokita v. Tully, 23A-PL-705. All five justices concurred on the decision, but the order did not provide any reason as to why they did not accept the case.

This brings to an end a controversy that erupted just weeks into Rokita’s tenure as attorney general. While he took office in January 2021, he initially kept his private-sector job with Apex Benefits. His office attempted to quell questions about potential conflicts of interest between his public duties and his moonlighting by saying the Indiana inspector general had reviewed the matter and concluded Rokita’s “interests and outside employment are all squarely within the boundaries of the law.”

However, Rokita’s office refused to release the inspector general’s informal advisory opinion.

Barbara Tully, an Indianapolis resident, filed a lawsuit in the summer of 2021, arguing the report was a public record. As the case was moving from the trial court to the Court of Appeals of Indiana, the legislature inserted into state statute an amendment, drafted by the attorney general’s office, which stated that the inspector general’s informal advisory opinions are confidential.

The Court of Appeals maintained its job is to interpret the laws that the legislature has written. In this case, the appellate panel ruled it had to follow the amended law and find the inspector general’s report was not a public document.

Since the Supreme Court will not hear the case, the Court of Appeals’ ruling stands.

Rokita’s office did not respond to a request for comment by the Citizen deadline. Also, the office did not answer questions about whether it would be releasing the inspector general’s opinion and how much the office spent on this three-year court battle.

However, in an email sent Sept. 3, a spokesperson for the attorney general’s office defended the effort to amend the law and called the trial court’s order to release the inspector’s general’s opinion “very bad.”

“The opinion and those like it have always been confidential,” the spokesperson wrote in the email. “There is a monumental good government reason for providing these opinions: to allow state employees to ask advice without repercussions. The public access councilor also agreed with this. The legislation was to cement what has always been their intent and practice for decades and to make sure a very bad trial court decision didn’t go any further.”

Tully’s attorney, William Groth of Bowman & Vlink, issued brief statement, pointing out that the Marion County Superior Court had ordered Rokita to release the report, but the Indiana General Assembly, “at AG Rokita’s instigation,” enacted a retroactive statute that effectively set aside the trial court’s ruling.

“We will leave it to others to opine whether allowing the legislature to interfere in ongoing litigation in this manner is sound public policy or consistent with the separation of powers,” Groth said.

Separation of powers argument over ‘final judgment’ 

In her petition to transfer to the Indiana Supreme Court, Tully raised two arguments. She asserted Rokita had implicitly waived confidentiality by publicly disclosing the inspector general had written an opinion about his private employment. Also she claimed the legislature’s action in amending the inspector general’s statute violated the separation-of-powers provision in Article 3, Section 1, of the Indiana Constitution.

The Court of Appeals ruled the legislature had not run afoul of the separation-of-powers provision because, the court’s opinion stated, the order issued by the trial court was not a “final judgment.” Under the well-settled doctrine of separation of powers, the General Assembly cannot pass a law that effectively sets aside a final judgment from any court, the appellate court noted. However, in the Rokita employment case, the deadline for appealing it had not passed, so the legislature was allowed to amend the law underlying the case.

Tully told the Supreme Court that the Court of Appeals’ definition of “final judgment” – that is “something akin to a judgment from which all appeals had been exhausted” – was unsupported by Indiana statute, court rules and case law. Pointing to precedent, Tully argued “final judgment” almost always designates the judgment that determines all the rights and obligations of the parties, so that the case can be appealed.

“Allowing the legislature to interfere with final judgments when an appeal is pending would be contrary to the clear language of Article 3, Section 1, and would cede exclusive judicial powers to the legislature,” Tully asserted. “Under the novel rule proposed by the Court of Appeals, every trial court determination and even some appellate decisions can now invite improper legislative interference.”

Rokita echoed the Court of Appeals, saying the separation of powers does not bar appellate courts from applying new laws to cases pending before them.

“It has been settled law for more than a century that the appellate courts can recognize and apply changes in the law to cases pending before them,” Rokita argued in his brief opposing transfer. “The Court of Appeals rested on that long-standing principle when it rejected Tully’s separation of powers argument, and her petition to transfer seeking review of that decision should be denied.”

Groth told The Indiana Citizen that despite the outcome of the lawsuit, he would like to see Rokita make the informal advisory opinion public.

“Now that the case is over, we hope that the AG for the sake of transparency will agree to permit the public to see the Inspector General’s report Mr. Rokita has thus far refused to disclose,” Groth said.

This article has been updated to include the comment from the Indiana Attorney General Todd Rokita’s office.

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.