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Groth's attorney not surprised by Supreme Court's denial of transfer

May 3, 2017

The Indiana Supreme Court’s decision to deny transfer to an open records case involving former Gov. Mike Pence did not come as a surprise to those involved in or who had followed the case closely.

The court denied transfer to the case of William Groth v. Mike Pence, 49A04-1605-PL-1116, last week, bringing an end to a two-year battle for access to the former governor’s state emails. Labor attorney William Groth first submitted a public records request under the Access to Public Records Act in December 2014 seeking documents related to Pence’s decision to hire outside counsel to represent the state of Indiana in the case of State of Texas, et al v. United States of America.

The governor’s office responded with 50 pages of documents, several of which were redacted and others withheld, including a white paper that outlined the state of Texas’ legal theories for challenging a federal executive order on immigration. A divided Indiana Court of Appeals found that Pence’s actions did not violate the APRA, though the court unanimously rejected his arguments that the governor’s responses to public records requests were exempt from judicial review by a theory of “executive immunity.”

Open records advocates said they were pleased with the court’s decision to strike down the governor’s “executive immunity” argument, but Greg Bowes, counsel for Groth, expressed concern about the court’s decision not to order the release of the white paper under the common interest privilege, an extension of the traditional attorney-client privilege. Although Bowes said he supports the idea of the common interest privilege, he also said it did not apply to Groth’s case because the white paper did not represent a “shared legal interest” between Pence’s staff and the staff of Texas Gov. Scott Abbott, who circulated the document. Chief Judge Nancy Vaidik made a similar argument in her dissent.

Groth took his case to the Indiana Supreme Court, seeking transfer and asking the court to order Pence’s office to release the redacted and withheld documents, particularly the white paper. Then, when it was revealed in March that Pence had used a personal AOL account to conduct government business, Groth filed a motion to remand the case, asking the justices to “stay its proceedings following resolution of the issues already briefed, and to remand the case to the trial court … in light of new information showing Governor Pence used his private email account for public business and did not produce those private email messages for review until March 2, 2017.”

However, when the online publication Rewire obtained the white paper as part of a journalistic investigation and released it to the public in March, Pence’s counsel moved to dismiss the case, saying it had been rendered moot. Groth and Bowes countered that motion, but the Indiana Supreme Court ultimately denied transfer.

Bowes said he was not surprised by the justices’ decision, though he had wished for a different outcome. The attorney theorized that from a practical matter, the court may have declined the case because the Rewire investigation had unveiled the white paper, giving Groth access to the document he was most adamantly seeking.

“The Supreme Court, in its discretion to take a case, is trying to prioritize the issues,” Bowes said. “The issue of separation of powers, we believe, was handled correctly by the Court of Appeals, so perhaps the Supreme Court thought that was the most important issue.”

Likewise, Steve Key, executive director of the Hoosier State Press Association, said the decision to deny transfer came as no surprise to him or his organization, which had chosen not to get involved in the appeals process because the issue involving the public records was settled by the Court of Appeals. The only remaining issue posed to the Supreme Court was the question of the common interest privilege, he said.

“They said there was no executive immunity, and we were fine with that,” Key said.

Bowes said the court did pass on an opportunity to weigh in on the attorney-client privilege issue and the question of what kind of public documents can be protected under the deliberative materials exception. The attorney said he disagreed with how the Court of Appeals rule on those issues and had hoped the Supreme Court would take the case to decide them.

If a “better constellation of facts” occurred, the high court might then be persuaded to weigh in on those outstanding questions, Bowes said. But until then, the attorney said he is at least satisfied to know that the question of the proper separation of powers and gubernatorial “executive immunity” has been satisfied in the manner in which he argued.
 

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