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Indiana Attorney General Todd Rokita has used public money to pay the private law firm, Schaerr Jaffe, to defend him before the Indiana Supreme Court Disciplinary Commission. (Photo/submitted)

By Marilyn Odendahl

The Indiana Citizen

August 24, 2023

The Indianapolis woman trying to see the ethics opinion about Indiana Attorney General Todd Rokita’s previous moonlighting gig claims a last-minute legislative maneuver “engineered by Rokita and his confederates” intrudes on judicial authority in violation of the Indiana Constitution.

Barbara Tully made her arguments in a response to the attorney general’s attempt to keep private an informal advisory opinion from the Indiana Inspector General. Rokita requested the opinion shortly after he became attorney general, apparently to see if he could ethically perform his duties for the state while continuing to hold his job in the private sector with Apex Benefits.

His office claimed the inspector general found no ethical conflicts but refused to release the advisory opinion. After the Marion County Superior Court ordered in January that a copy of the opinion be given to Tully, Rokita was able to amend the inspector general statute making such opinions confidential, including those issued before the amended statute took effect.

He has since turned to the Court of Appeals of Indiana, filing Theodore Edward Rokita v. Barbara Tully, 323A-PL-705, and argued, in part, that Tully’s lawsuit is now moot under the new law.

Tully counters Rokita is usurping the separation of powers clause in Article 3, Section 1 of the Indiana Constitution.

“This type of gamesmanship by a member of the executive branch to involve the legislative branch in judicial branch affairs violates the constitutionally-mandated separation of powers,” Tully asserts in her brief filed Wednesday. “This Court should decide this appeal based on the facts and law as they existed when the trial court entered its final judgment in favor of Tully.”

Further, Tully argues the amendment runs afoul of the single-subject rule in Article 4, Section 19 of the Indiana Constitution. Legislation must be limited to a single subject to prevent “logrolling” where a wholly disparate provision with little support in the legislature is inserted into a popular bill and passed into law.

Tully argues that no “rational unity” exists between budget matters and retroactively making confidential previously-issued informal advisory opinions. Moreover, the amendment was never scrutinized in committee hearings or by the public.

“This type of manipulation of the legislative process at the very least should diminish the normal presumption of constitutionality,” Tully asserts. “The apparent purpose of this amendment was to invalidate Tully’s judgment under (the Access to Public Records Act) without bothering to comply with normal legislative formalities and should warrant heightened judicial scrutiny ….”

In addition to responding to Rokita’s appeal, Tully is cross-appealing the trial court’s ruling.

Specifically, she is asking the Court of Appeals to reverse the lower court’s decision that permitted Rokita to redact as much of the informal advisory opinion as he wanted before he released it to the public. Also, she contends the trial court erred by not awarding her costs and attorney fees.

Indiana precedent

Before the Court of Appeals, Rokita, represented by nationally-known conservative attorney James Bopp, argued the retroactive statute applies because this case is still pending.

“Indiana law permits courts to consider a retroactive statute that became effective during the pendency of an appeal, unless it would require a change in a final judgment,” the attorney general asserted.

Tully bolsters her separation-of-powers argument by citing Toomey v. Ind. Department of Correction, 49D01-1501-PL-3142, an open-records case with “a remarkably similar fact pattern.”

In that case, Katherine Toomey successfully sued to get a list of the drugs the state used to carry out executions by lethal injection. However, after the court ruling, the Indiana General Assembly inserted into the 2017 biennial budget bill a retroactive amendment that exempted the drugs from disclosure under APRA.

The DOC then returned to court and, pointing to the new law, tried to moot the ruling in favor of Toomey.

Unpersuaded, the circuit court found the retroactive language in the new law violated the separation of powers and asserted the judiciary may not be controlled by the executive or legislative branches.

“The General Assembly may not change the result of (Toomey’s) litigation,” former Marion County Circuit Court Judge Sheryl Lynch wrote in the November 2018 order. “While other requests may be precluded by the Statute, blocking Toomey’s request after this Court had already ordered the Department to produce the documents violates Article 3, Section 1 of Indiana’s Constitution.”

 ‘A sword and a shield’

Apart from the constitutional arguments, Tully maintains the informal advisory opinion prepared for Rokita is not confidential.

Her court brief tussles with the attorney general over which administrative rule is applicable to this situation, but she asserts Rokita was required by law to seek an opinion from the Ethics Commission. Both ethics rule 5, 42 Indiana Administrative Code § 1-5, et seq., and Indiana Code § 4-2-6-5.5 give the commission the ability to issue advice on a state officer’s outside employment.

Consequently, any advisory opinion issued by the commission to Rokita would be public record.

Tully also asserts that despite the rules and law, Rokita himself waived confidentiality when, through his office, he voluntarily disclosed that the inspector general’s opinion found no ethical violation.

“Rokita waived any confidentiality inuring to his benefit by using a confidentiality privilege as both a sword and a shield, i.e., to shield the IG’s opinion from disclosure while at the same time using that opinion as a sword by publicly characterizing it as having completely exonerated him of any conflict of interest relating to his outside employment while serving as attorney general,” Tully argues. “(Rokita) self-servingly elected to disclose both the existence of the IG’s opinion and its purported conclusions, and he thus waived any discretionary privilege.”

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