April 21, 2023

After hiring outside counsel and presenting oral arguments to the judge, Indiana Attorney General Todd Rokita is withdrawing his motion to remove a trial court’s finding that he violated state confidentiality laws when he publicized his office’s investigation into OB/BYN Caitlin Bernard.

The state’s top lawyer filed a notice of withdrawal with the Marion Circuit Court Friday. A brief providing the legal arguments in favor of withdrawal is expected to be filed later today but the notice asserts the motion is no longer necessary.

Rokita had been seeking to amend a portion of the Marion County Superior Court’s December 2022 ruling in Bernard, et al. v. Rokita, et al., 49C01-2211-MI-038101. Bernard and her colleague Amy Caldwell, M.D., had filed the lawsuit in response to the attorney general’s repeated statements in the media alleging the physicians had violated patient privacy laws and state abortion regulations.

Marion Superior Judge Heather Welch held that Rokita’s comments about Bernard were “clearly unlawful breaches” of state law prohibiting the attorney general’s office from publicly discussing any investigation into a physician before a complaint has been filed with the Indiana Medical Licensing Board.

After the plaintiffs moved to get the case dismissed, Rokita hired Schaerr Jaffe, a Washington, D.C. boutique law firm. The outside counsel then filed a Motion to Strike Plaintiffs’ Notice of Voluntary Dismissal and to Reconsider and Correct Error in the Court’s Order of December 2, 2022.

By the time the April hearing was held on the attorney general’s motion, the case had been moved to Marion County Circuit Court. Judge Amber Collins-Gebrehiwet opened the hearing by telling the parties she was only going to rule on the motion to block the dismissal of the case. Arguments to amend the December order would have to be made to Welch.

In his withdrawal notice, Rokita refers multiple times to statements that the plaintiffs’ attorney made during the April hearing. Opposing counsel was quoted in the notice as telling the circuit court the December 2022 order is dicta or an extraneous comment that is not necessary to the decision in the case and that the attorney general’s office is not bound by the order in any future proceeding.

Based on those statements from the plaintiffs’ counsel, Rokita told the court his previous motion is  “not necessary and he therefore withdraws the Motion.” — Marilyn Odendahl

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