By Marilyn Odendahl
The Indiana Citizen
June 13, 2024
Indianapolis resident Barbara Tully has appealed to the Indiana Supreme Court in her fight to learn more about the private-sector job Indiana Attorney General Todd Rokita continued to hold when he first took office as the state’s top lawyer in 2021.
Tully filed a petition to transfer in Rokita v. Tully, 23A-PL-705, on Wednesday with the Indiana Supreme Court. The Supreme Court will now give Rokita the opportunity to file a brief in opposition before making any decision on whether to accept the case.
The dispute is focused on an informal advisory opinion the Indiana inspector general issued in 2021 about Rokita working for Apex Benefits as a strategic policy adviser – even after he was sworn in as the state’s attorney general. Rokita has argued the opinion is not a public document and, after the Marion County Superior Court ruled he had to release the report, the Court of Appeals of Indiana found the report was exempt from disclosure under the Access to Public Records Act.
In between the trial and appellate court rulings, the Indiana General Assembly amended state law to clarify that all of the inspector general’s informal advisory opinions, including those issued previous to the amendment, such as the one in Rokita’s case, are confidential.
Tully is raising two issues in her petition to the Indiana Supreme Court. The first is whether Rokita waived confidentiality when his office publicly stated the inspector general’s opinion concluded his private-sector employment did not conflict with his duties as an elected official. The second is whether the legislature violated the separation-of-powers clause in Article 3, Section 1, of the Indiana Constitution, when it passed the amendment on informal opinions while the case was still being litigated.
Tully’s attorney, William Groth of Bowman & Vlink in Indianapolis, declined to comment, saying the petition speaks for itself.
The attorney general’s office said keeping the inspector general’s opinions confidential was important for all public workers.
“Of course we’ll continue to defend the confidentiality of Inspector General informal advisory opinions, which are of tremendous importance to the tens of thousands of state government employees who can rest assured that their privacy will be upheld and not turned over to the finger-pointing press if they ever choose to seek a confidential opinion regarding their career or employment,” Benjamin Fearnow, spokesperson for the attorney general, said in an email.
“The legislature clearly agrees,” Fearnow continued, “and we will defend our elected lawmakers’ right to legislate, even during legal disputes.”
When his private-sector employment became public knowledge, Rokita’s office said the inspector general had issued an opinion that found his job with Apex did not conflict with his official duties as a state elected official. However, Rokita refused to release the inspector general’s report, so Tully sued for access in July 2021.
Marion County Superior Court Judge Kurt Eisgruber ruled in Tully’s favor, finding the inspector general’s opinion was a public document, but he allowed Rokita to redact as much of the report as he wanted. Instead, Rokita drafted the amendment which the legislature then passed. Also, he hired nationally-known conservative attorney James Bopp to represent him and appealed to the Court of Appeals of Indiana.
The appellate panel reversed the trial court, finding, in part, that the legislature did not overstep when it amended state law. Rather, the panel determined the ruling issued by the trial court was not a “final judgment,” because at the time the Statehouse took action, the window was still open for filing an appeal.
“In this context, a final judgment is one from which no further appeal can be had,” the Court of Appeals wrote. “Applying this principle here, we detect no violation of the separation of powers mandate of Article 3, Section 1 because – for these purposes – the trial court’s order granting Tully summary judgment was not a ‘final judgment.’ It could be – and, in fact, was – timely appealed.”
Tully contends in her petition that the appellate court’s conclusion is not supported by Indiana statute, case law or the rules for trial and appellate procedure.
She cites to Indiana Supreme Court precedent in Lemmon v. Harris from 2011 and Thorpe v. King from 1967, which held the General Assembly may not pass a law that upends a final judgment already issued by a court. Neither of those decisions, she pointed out, said the legislature “may interfere with a final judgment” only if the appeals process has ended.
Tully asserts that allowing the Statehouse to override the rulings of the courts when an appeal is pending would not only violate the state’s constitution but also cede judicial powers to the legislature.
“The Court of Appeals seems to acknowledge this danger, but its interpretation of ‘final judgment,’ will, ironically, only make such interference more likely and more common because appeals can and do often take longer than one year, during the course of which the legislature will convene and may reverse any holding with which it disagrees,” Tully argues in her petition. “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.”
Even before the legislature amended the statute, Rokita argued the informal opinion was confidential and not subject to the state’s open records law. Tully countered that even if the inspector general’s report is exempted from the public’s review, the attorney general waived that protection when his office publicly talked about the report’s contents.
The trial court did not reach a decision on the waiver issue, but the Court of Appeals found the disclosure of the report’s contents was too limited to overcome any confidentiality. To support its finding, the appellate panel pointed to the 2003 decision in Unincorporated Operation Div. of Ind. Newspapers, Inc., v. Trs of Ind. Univ. There, the Indianapolis Star was trying to access the records related to the investigation of then-Indiana University men’s basketball coach Bobby Knight, but the court decided the information that had been made public was “very generalized” and insufficient to waive privacy.
Tully disagrees. She argues the Rokita case is different from the IU case, because the attorney general’s “self-serving announcement” was very specific. It divulged the conclusion, which, she says, is a “significant part” of the inspector general’s opinion.
“Attorney General Rokita deliberately chose to have his office publicly announce that the IG had completely exonerated him of any misconduct relating to his continued outside employment,” Tully asserts in her petition. “By voluntarily disclosing the substance, conclusion, and essence of the IG’s opinion in a self-serving public announcement, Attorney General implicitly waived his discretionary privilege to withhold disclosure of that opinion.”
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.
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
