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The panel appointed to hear the disciplinary case against Indiana Attorney General Todd Rokita has set a public hearing for December, but it is strongly encouraging Rokita and the disciplinary commission to reach an agreement through mediation.
In a Friday order denying Rokita’s motion for discovery, the hearing panel composed of Indiana Court of Appeals Judges Cale Bradford and Nancy Vaidik and former U.S. Magistrate Judge William Hussmann Jr. gave the Supreme Court Disciplinary Commission and Rokita 45 days to pursue mediation.
Rokita and the commission were given a list of three mediators to choose from, but if they can’t decide on one within 14 days, then each party will have its choice to narrow down the options by striking off a mediator one at a time.
The three potential mediators are: retired Indiana Supreme Court Justice Steven David, civil mediator Patricia McCrory of Harrison Moberly and James Riley Jr., a mediator of business and commercial cases and of counsel for Riley Bennett Egloff LLP.
James Ammeen, an attorney with Ammeen & Associates LLC representing Rokita, told The Lawyer in an interview that mediation, albeit an “unprecedented” move by the high court, is on the table for them, and they are currently in discussion about what it should look like.
“We need to sit down with our client and get a firm understanding of what his objectives are and his goals,” Ammeen said, “And I’m sure that the lawyers for the disciplinary commission are doing the same with their client, which has eight people involved in the decision-making process. So, there’s a lot to talk about.”
The commission did not respond to The Lawyer on whether it was considering mediation at this time, but Ammeen said his team is having negotiations with the commission’s lawyers about “what the next steps should look like.”
Even if the parties reach an agreement through mediation, Ammeen said the state supreme court would have to agree to it.
But if no agreement is made, then the commission and Rokita will head to a public hearing on Dec. 18 and “thereafter until completion,” according to the panel’s order.
“One of the fortunate things is that the schedule that the panel gave us is pretty fast, and so one way or another, this dispute probably will be resolved, you know, at the latest in the first quarter of next year,” Ammeen said. “Hopefully, before the end of the year.”
Although it is rare for a disciplinary case to go to mediation, David Remondini, an expert on mediation and an adjunct professor at Butler University, told The Lawyer that, in trial cases, it is fairly typical for a judge to offer up three names of potential mediators and direct the parties to narrow down the options until one is left.
“I am sure every judge has their own process but it is likely the judges name mediators they know and they feel would be acceptable to the parties,” he said in an email.
The Friday order was made in response to Rokita filing a motion to compel discovery and requesting that the panel order the disciplinary commission to provide all “communications about Respondent, the investigations involving Respondent, and information related to the Commission’s allegations in its Complaint filed against the Respondent.”
The commission then motioned for the hearing panel to issue a protective order for much of the requested material on the basis that it is “confidential, privileged, and/or irrelevant.”
The hearing officers denied Rokita’s motion, calling it “unduly burdensome” and “annoying,” and stating that the material is unlikely to lead to admissible evidence.
They made clear in the order that their task, as framed by the Supreme Court’s opinion last month, is only to determine whether Rokita intentionally misled the Supreme Court when he signed a conditional agreement and accepted responsibility for his actions that led to his first disciplinary case.
In Rokita’s answer to the commission on Aug. 15, he argued that the commission had violated Indiana’s Anti-SLAPP statutes when it filed its second complaint against him.
But on Friday, the hearing panel denied Rokita’s attempt to gain access to discovery through an Anti-SLAPP defense, saying that there has not been a single disciplinary proceeding in any U.S. jurisdiction in which the subject was allowed to raise an Anti-SLAPP defense.
“We cannot see how any internal communication, investigation, or other information gathered by the Commission could shed any light on Respondent’s state of mind when he indicated to the Supreme Court that he had taken responsibility for his actions in Cause No. 23SDI-258, which, again, is the only question before us,” the hearing officers wrote.
Even though they disagree with the hearing panel’s conclusion, Rokita’s attorneys are looking ahead.
“You play the cards that are on the table, and we have other defenses to assert, and we are going to move forward,” Ammeen said.
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