Indiana Attorney General Todd Rokita’s fight to overturn a trial court’s finding that he violated a state confidentiality law has been moved to another court – its third since the original complaint was filed in November 2022 – and set for a hearing April 11.
Marion County Circuit Court Judge Amber Collins-Gebrehiwet is now presiding over the dispute between the attorney general and Indiana OB/GYN Caitlin Bernard over public statements Rokita (above) made about his office’s investigation into Bernard. Marion County Superior Court Judge Heather Welch in a December 2022 order found Rokita had violated Indiana Code section 25-1-7-10(a) which prohibits the state’s top lawyer from disclosing information about an investigation before the matter has been referred to the appropriate licensing board.
Rokita continues to maintain he did nothing improper and has asked the trial court to “correct the erroneous finding.” Collins-Gebrehiwet has scheduled a two-hour hearing on the attorney general’s motion to strike, starting at 10 a.m., April 11.
In his latest court filing, Rokita reiterated his argument that none of his public statements violated state law.
“The Attorney General properly informed the public about his activities in compliance with the statute and his duties as Attorney General, and he did not reveal the existence of any confidential consumer complaints or any information pertaining to such complaints,” Rokita stated in his March 17 reply motion.
Bernard became the subject of an investigation in the summer of 2022 after The Indianapolis Star reported she had performed an abortion on a 10-year-old Ohio girl who became pregnant as the result of a rape. Rokita gave media interviews and participated in a Facebook Live broadcast about his office’s investigation into Bernard’s potential violations of patient privacy and of reporting requirements in abortion cases.
Along with her colleague, Amy Caldwell, M.D., Bernard filed a lawsuit and then a motion for preliminary injunction seeking to stop the attorney general’s investigation. The physicians wanted the trial court to prohibit Rokita from continuing to investigate any of the pending consumer complaints against them and from speaking publicly about the complaints and investigation.
Welch denied the plaintiffs’ request for a preliminary injunction. However, in her ruling, the judge concluded Rokita’s statements were “clearly unlawful breaches” of the statute that requires the attorney general’s office to keep investigations confidential until they are referred for prosecution.
The plaintiffs then moved to voluntary dismiss their lawsuit and, thus, preserve the judge’s conclusion about the confidentiality breach.
Rokita has engaged the Washington, D.C. law firm Shaerr Jaffe and is now fighting to keep the case open so he can rebut Welch’s findings. At the April hearing, the attorney general will try to convince the trial court that he should be allowed to present his arguments that he did not violate state law. He claims he did not address the matter previously because the issue was not raised by the plaintiffs in their push for a preliminary injunction.
Bernard and Caldwell, represented by DeLaney & DeLaney in Indianapolis and pro bono attorneys from Porter & Arnold Kaye Scholer, counter the trial court correctly determined that Rokita had overstepped his authority.
“The record was replete with evidence confirming that the Attorney General repeatedly disregarded these statutory confidentiality requirements,” the plaintiffs asserted. “Thus, there is little question that the Court’s finding that the Attorney General violated the statute was well supported in the record.”
Since the investigation has been turned over to the Indiana Medical Licensing Board, the opposing sides are both highlighting that the case is moot to advance their arguments.
The plaintiffs echo Welch by arguing the trial court no longer has jurisdiction because the matter is now before the MLB. They acknowledge the attorney general’s complaint that the preliminary injunction order with its findings on Rokita’s statements has been given to the medical board but, they contend, the relevance of the trial court’s finding is for the board to determine.
Conversely, Rokita asserts the question of whether he violated state law was moot before Welch issued her order. The attorney general’s office referred the matter to the medical board Nov. 30, 2022, two days before the trial court denied the preliminary injunction so the confidentiality provision no longer applied. — Marilyn Odendahl