New judge requested in dispute over Rokita’s private employment

A Marion County resident seeking to review an advisory opinion issued to Indiana Attorney General Todd Rokita about the private-sector job he held while he was beginning his term as the state’s top lawyer is asking the trial judge in the case be removed and a special judge be appointed.

Barbara Tully filed a motion Nov. 16 to have Marion Superior Judge Kurt Eisgruber removed from the case and to have a special judge appointed by the Indiana Supreme Court. She argues Eisgruber should be replaced because he failed to rule on Rokita’s motion to dismiss within 30 days as required by Indiana Trial Procedure Rule 53.1(A).

Friday, the court issued an order, scheduling a Dec. 13 telephonic hearing on Tully’s motion.

Tully filed her motion the day after a Rokita filing. The attorney general filed a motion to dismiss Tully’s complaint Oct. 13. Tully filed a response Oct. 27 and Rokita filed a reply Nov. 15.

The complaint, Barbara Tully v. Theodore (“Todd”) Rokita, in his official capacity as Indiana Attorney General, 49D06-2107-PL-02533, is challenging the attorney general’s denial to give public access to an advisory opinion from the Indiana Inspector General.

After reading an article in the Indianapolis Business Journal that Rokita was continuing to work for Apex Benefits while he was serving as attorney general, Tully sought to review the inspector general’s report. According to the newspaper, the attorney general’s spokesperson said the inspector general had determined Rokita’s “interests and outside employment are all squarely within the boundaries of the law and do not conflict with his official duties.”

She asked the attorney general’s office for a copy of the opinion but the office did not respond “within a reasonable time” as required under the Indiana Access to Public Records Act (APRA), Indiana Code section 5-14-3-3(b). Tully then turned to the Indiana Public Access counselor who ruled Rokita had the discretion as to whether to release the information as permitted by I.C. section 5-14-3-4(b)(6).

In the complaint, Tully argued Rokita waived privilege to refuse to disclose the opinion when the attorney general’s spokesperson voluntarily disclosed the essence of the inspector general’s report.

Rokita countered in the memorandum accompanying the motion to dismiss by calling Tully’s allegations “legally insufficient to support her claim of an APRA violation.”

He asserted that the inspector general’s advisory is deliberative material which the APRA in an exception allows his office to withhold from public view.

“The purpose of (withholding the advisory opinion) is to ‘prevent injury to the quality of agency decisions’ for ‘[t]he frank discussion of legal or policy matters in writing that might be inhibited if the discussion were made public, and the decisions and policies formulated might be poorer as a result,” Rokita argued, citing Unincorporated Operating Division of Indiana Newspapers v. The Trustees of Indiana University, 787 N.E.2d 893, 909-10 (Ind. Ct. App. 2003) (quoting Newman v. Bernstein, 766 N.E.2d 8, 12 (Ind. Ct. App. 2002)), trans. denied.

Also, Rokita contested that confidentiality was waived by the spokesperson’s response to a media inquiry about the inspector general’s opinion.

He cited again to Unincorporated Operating Div. and stated, “A public agency does not waive its authority to resist disclosure of deliberative materials by releasing a general summation of those materials. Rather, waiver may be found only when the public agency voluntarily and intentionally relinquishes its rights under the exception by, for example, selectively disclosing materials to certain individuals but not others.”

Tully’s response contended that Rokita’s motion to dismiss fails as a matter of law because he did not submit an affidavit under oath as section 9(g) of the APRA requires to justify his refusal to disclose the inspector general’s opinion.

“Instead of following the law, Rokita asks this Court to ignore the law and assume without evidentiary basis, that (1) the IG opinion exists, (2) it completely exonerates him from any ethical breaches, (3) there were no disclosures of the purported IG opinion apart form the verbal summary given to the media, and (4) the opinion contains no disclosable factual as opposed to non-disclosable deliberative materials,” Tully asserted. “None of these issues may be adjudicated in a motion to dismiss….”

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