By Marilyn Odendahl
The Indiana Citizen
April 28, 2023
Indiana Attorney General Todd Rokita has hired James Bopp, a nationally recognized attorney championing Republican causes, to represent him in the fight to keep confidential an Indiana Inspector General’s report about his previous employment with Apex Benefits.
Bopp along with attorneys Courtney Turner Milbank and Melena Sue Siebert, all from The Bopp Law Firm based in Terre Haute, filed an appearance April 26 notifying the Court of Appeals of Indiana they will be representing Rokita in Tully v. Rokita, 23A-PL-00705. Also, Benjamin Jones, the deputy attorney general who had been representing Rokita, filed a motion April 28 withdrawing from the case.
The attorney general’s office did not respond to a request for comment. However, Bopp told The Indiana Citizen his work for the state’s top lawyer will likely extend beyond the Tully litigation. He said Rokita had approached him a few months ago, saying the attorney general’s office was interested in hiring Bopp’s law firm to help with various cases.
“I have the greatest respect for Todd and in the work that he is doing,” Bopp said. “I said, ‘I would be very, very happy to consider doing that.’ So we came to an agreement where I would be outside counsel and they would assign various cases to us and this was the first one.”
As he tries to keep the inspector general’s opinion private, Rokita may have gotten some help from the Indiana General Assembly. Lawmakers inserted a provision into the budget bill passed early Friday which designates that informal advisory opinions from the Office of the Inspector General are confidential.
Bill Groth, of counsel at Bowman and Vlink, is representing the plaintiff in this matter, Barbara Tully. He questioned why Rokita hired outside counsel when his office has attorneys available. He also wondered who was paying Bopp’s legal fees.
Bopp said he had a contract with the attorney general and would be charging the state $200 an hour which he described as “an incredibly favorable rate.” The Indiana Citizen could not find any contract with The Bopp Law Firm on the Indiana Department of Administration’s contract portal.
The Tully case originated when Rokita’s office publicly touted that the inspector general had cleared him of any ethical violations for continuing to work for Apex after he was sworn in as attorney general. Indianapolis resident Tully asked to see a copy of the inspector general’s informal advisory opinion and then filed a lawsuit when she was denied access.
Marion County Superior Court issued an order that gave Rokita some leeway. Judge Kurt Eisgruber told Rokita to turn over the report but allowed the attorney general to redact any information included in it.
In March, Rokita filed a notice of appeal in Tully v. Rokita, 23A-PL-00705. Once the transcript from the trial court is submitted, the attorney general will have about 30 days to file his brief presenting his arguments for overturning the lower court’s ruling.
Bopp said the appeal had already been filed when he was assigned the case.
From his Indiana office, Bopp has waged battles for conservative values including the fight against abortion and campaign finance as well as election laws. He successfully litigated Citizens United v. Federal Election Commission before the U.S. Supreme Court which has enabled so-called dark money to flow from corporations, wealthy donors and special interest groups into political campaigns. Also, as general counsel for the National Right to Life Committee he has crafted model anti-abortion laws for state legislatures.
Although he had a brief stint serving as a deputy attorney general after graduating from law school in 1973, Bopp said he has never served as outside counsel for any other Indiana attorney general. He said he has served as special counsel for attorney general offices in different states.
Bopp said his office has the capacity to serve the Indiana Attorney General’s office.
“We will make sure that whatever cases we agree to handle, we will have the resources to do that,” Bopp said. “I’ve been involved in major litigation my whole career so I’m really not concerned about being able to handle this sort of work.”
The Indiana General Assembly stepped into the dispute with a provision tucked into the just-passed budget bill.
Lawmakers added language that makes confidential the informal advisory opinions issued by the inspector general to any current, former and prospective state employees and officers. Also, the provision is retroactive, keeping from the public any previously issued informal advisory opinion “that recites that it is confidential.”
Bopp had not lobbied the legislature for the change and was not familiar with the provision but he applauded the move.
“If it provides statutory confidentiality and is retroactive as you described it,” Bopp told The Indiana Citizen, “then, yeah, this case is over. The order of the trial court would need to be vacated either by the Court of Appeals or, probably, by the Marion County Judge himself.”
“We also have other arguments that are unaffected should this legislative ‘fix’ succeed,” Groth said. “Perhaps the strongest is that Rokita waived any confidentiality the inspector general opinion may have enjoyed when his office publicly touted that the opinion had cleared him of any improprieties in continuing his relationship with private employers after assuming the office of attorney general.”
In addition, Groth pointed to a similar tactic the legislature tried in another Indiana Access to Public Records Act case which was overturned by the Indiana judiciary.
The lawsuit, Toomey v. Indiana Department of Correction, 49C01-1501-PL-3142, was filed in January 2015 and sought information about the kinds of drugs the state was using to carry out death penalty sentences. Along with the names of drugs, the plaintiff wanted the expirations dates of the pharmaceuticals and the identities of the manufacturers and distributors.
While the case was being litigated, the legislature in 2017 added a “retroactive secrecy statute” to the biennial budget. The plaintiff had already won summary judgment in 2016 and the state was appealing the ruling when the lawmakers inserted language that shielded from the public information about the lethal substances used by the DOC in lethal injections.
In a 2018 order denying the DOC’s motion to modify the summary judgment order, the Marion County Circuit Court blasted the legislature as taking away judicial power while the case was still pending in the courts.
“The General Assembly does not have the authority to determine the outcome of pending litigation,” retired Judge Sheryl Lynch wrote. “As applied to this case, the General Assembly’s passage of the Statute overstepped its authority and violated the Indiana Constitution’s Separation of Powers by disturbing a pending case and upsetting this Court’s judgment.”
A split 2-2 decision from the Indiana Supreme Court left the trial court’s ruling in place.
Along with the release of the information, the trial court also awarded Toomey $538,343.72 in legal fees.