County court battle between Rokita and physicians ends with judge’s order

The Marion County Circuit Court has granted Indiana Attorney General Todd Rokita’s request to end his effort to change another judge’s finding that as the state’s top lawyer, he violated confidentiality by making repeated public statements about his office’s investigation into Caitlin Bernard, M.D.

Marion County Circuit Judge Amber Collin-Gebrehiwet filed her order April 26 which granted Rokita’s notice of withdrawal of motion. The case that was brought by Bernard and her colleague Amy Caldwell, M.D., is now closed.

Through her attorney, Matthew Gutwein, partner at DeLaney & DeLaney, Bernard declined to comment.

As Rokita did in his notice of withdrawal, the attorney general’s office indicated the case could be concluded because the plaintiffs had described the other judge’s findings as extraneous and non-binding.

“Despite earlier public statements, Dr. Bernard’s attorneys have now agreed on the record that the court’s earlier statement of finding is ‘dicta’ and therefore not binding on any other tribunal. They also acknowledge that Dr. Bernard’s voluntary dismissal of her suit meant that it is treated as if it ‘never existed,’” a spokesperson for the attorney general office said in an email. “For these reasons and in the interest of judicial economy, the motion was withdrawn, and that withdrawal has been accepted by the Court.”

Bernard and Caldwell had filed the lawsuit against Rokita and Scott Barnhart, chief counsel and director of the Consumer Protection Division of the Attorney General’s Office, in November 2022. The obstetrician-gynecologists who perform abortions sued to prevent the defendants from continuing an investigation into their medical practices and from publicly disclosing the investigation.

Rokita alleged Bernard and Caldwell had violated state law by not properly reporting to the state the pregnancies they had terminated. In the media and on the attorney general office’s website, he talked about his investigation into the alleged wrongdoing and he issued subpoenas to Bernard and Caldwell for their patients’ medical records.

The doctors claimed the attorney general had damaged their reputations and forced them to divert time and resources away from their patients.

Marion County Superior Court Judge Heather Welch, who presided over the initial proceedings in this case, issued an order Dec. 2, 2022, denying the plaintiffs’ motion for a preliminary injunction. However in the order, Welch included her finding that Rokita had breached state confidentiality laws by talking openly about the investigation before the matter was turned over to the Indiana Medical Licensing Board.

Rokita’s actions also seem to have led to a disciplinary action being filed against him. The Indiana Supreme Court Disciplinary Commission has, to date, not filed any formal complaint against the attorney general.

In response to the court’s finding, Rokita enlisted attorneys from the Washington, D.C. firm of Schaerr Jaffe to get Welch’s finding removed from the order. The attorney general filed a motion that sought to stop the case from being dismissed and “correct the erroneous finding” made by Welch.

At a hearing April 4, Collins-Gebrehiwet informed the parties she would only be ruling on the motion to stop the case from being dismissed. If she decided the case could remain open, then Rokita would have to return to Welch’s courtroom to make his arguments that he did not violate confidentiality laws.

Collins-Gebrehiwet explained her reasoning in a minute order.

However the judge did not issue her ruling on the dismissal because Rokita filed his notice to withdraw. In his notice, he makes multiple references to assertions by plaintiffs’ attorneys that since Bernard and Caldwell had filed a notice of voluntary dismissal, the lawsuit can then be treated as if it “never existed.”

However, at the hearing, Rokita’s attorney, Christopher Bartolomucci countered Welch’s order was being used by the plaintiffs to defend Bernard before the medical licensing board. — Marilyn Odendahl

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