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Wednesday, September 16, 2015

Ind. Gov't. - A lot more on: Common Cause asks Attorney General to file amicus brief in Indiana House public records case

In this Sept. 8th post, the ILB quoted a WRTV6 report that "Attorney General Greg Zoeller has declined to issue an opinion in a battle over access to legislative emails, saying it would require his office to take a legal position in opposition to their own client: state government." The post linked to the AG's Sept. 2nd letter to Common Cause.

WRTV's Kara Kenney had a follow-up story Sept. 11, headed "Indiana attorney general clarifies stance over public records requests." A quote:

“I do want to clear up a misunderstanding that I think the lobbyists at Common Cause intentionally created,” said Zoeller on Thursday. “They asked me to file an amicus brief on an issue that was not before the Court of Appeals. No lawyer, not just my office, but no lawyer can go into the Court of Appeals and argue a case that’s not presented.”

Zoeller said issuing an opinion on the email flap would require his office to take a legal position in opposition to their own client: state government.

“I represent the legislature almost every day, when there are challenges to the acts of the legislature,” said Zoeller. “These are my clients, and the separation of powers issue is one that is very important to the defense of the legislature. It’s part of our constitutional protections.” * * *

Julia Vaughn, Policy Director for Common Cause Indiana, expressed frustration about Zoeller's decision not to issue a brief on the legislative email issue.

"We're disappointed the AG is using the separation of powers principle to avoid taking a firm stand against legislative secrecy," Vaughn said. "He is assuming that the Access to Public Records Act's application to the General Assembly violates that doctrine, which isn't warranted in this case.

The Fort Wayne Journal Gazette has editorialized on the issue. From a Sept. 9 editorial headed "Precedent setting: Zoeller inconsistent in public-access support":
Attorney General Greg Zoeller stepped up last month in support of public access. He filed a friend-of-the-court brief in support of ESPN in the TV network’s bid to obtain police records from the University of Notre Dame – an effort rejected by a St. Joseph County judge.

“The trial court’s decision runs contrary to the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees,” the attorney general wrote in the amicus brief.

But Zoeller’s support for public access apparently stops at the General Assembly’s doors. When Common Cause Indiana – acknowledging his strong record on transparency and public access – asked that he support its position in a lawsuit alleging open records law violations, the attorney general pointed to separation of powers. To side with Common Cause and consumer groups in a challenge to the Indiana House Republican Caucus, his office would have to oppose state government – its own law client, he argued.

“The court’s decision in the (public access lawsuit) was solely based upon the separation of powers that rightly precludes the judiciary from interfering with internal matters of the legislative branch,” Zoeller wrote in response to Common Cause’s hand-delivered appeal.

“We’re disappointed the (attorney general) is using the separation of powers principle to avoid taking a stand against legislative secrecy,” responded Julia Vaughn, policy director for Common Cause. “He is assuming that applying the Access to Public Records Act to the General Assembly violates that doctrine, which isn’t warranted in this case.”

Vaughn also notes that Zoeller’s clients should be Indiana residents, not the “extremely self-interested House Republican caucus and their private law firm, which is one of the lobbyists from whom legislative emails are sought.”

Indeed, the public seems to fall to second-class status behind ESPN in Zoeller’s response. If separation of powers precludes any challenge to the political caucus, who then ensures that the public is entitled to “full and complete information regarding the affairs of government and official acts of those who represent them”? Are legislators exempt from the laws they write?

In response to the lawsuit over email correspondence between energy company lobbyists and Rep. Eric Koch, R-Bedford, attorneys for the caucus have argued that public record laws do not apply to them, contrary to a ruling from the Indiana public access counselor.

“Essentially, the curtains are drawn tight around the legislative process,” Vaughn wrote in her original letter to the attorney general, “depriving Hoosiers of their right to government that is transparent and ultimately accountable.”

The attorney general cites judicial precedent for opting out of his challenge to lawmakers. Too bad he’s not following his own precedent in supporting transparency in Indiana government.

A few days later (Sept. 13) the FWJG had an opinion column from the editorial page editor, Karen Francisco. It begins:
The Indiana attorney general dropped by the newsroom to plead his case that very day, offering a strong argument as to why he couldn’t file a friend-of-the-court brief on behalf of Common Cause and others seeking access to correspondence between a legislator and utility lobbyists. The groups want to know why the chairman of the House Utilities and Energy Committee, Republican Eric Koch, attempted to block solar-friendly bills opposed by utility companies.

Zoeller patiently described the concepts of separation of power, obligation to clients and non-sequitur arguments to explain why a judge would “laugh him out of the courtroom” if he submitted an amicus brief arguing that Hoosiers have the right to know what their elected representatives are doing.

Today the South Bend Tribune has a long editorial, headed: "Our Opinion: A disappointment, for the record." It reads [ILB emphasis added]:
Attorney General Greg Zoeller’s recent decision not to support a legal challenge to Indiana lawmakers’ secrecy is all the more disappointing because it is a departure from an otherwise solid record on matters of public access.

Zoeller declined to issue an opinion, saying it would require his office to take a legal position in opposition to its own client — state government. He had been asked to weigh in on the matter by the government watchdog group Common Cause Indiana, which along with the Citizens Action Coalition and the Energy and Policy Institute filed a lawsuit against the Indiana House Republican Caucus and Rep. Eric Koch, R-Bedford, alleging they violated the Indiana Access to Public Records Act by not providing access to lawmaker emails.

The House has said the public records laws do not apply to it, despite an opinion from the Indiana Public Access Counselor that says the General Assembly should follow the state’s APRA.

Given the attorney general’s record on the issue of transparency in public records, Common Cause’s request isn’t surprising.

Just last month, Zoeller filed an amicus brief supporting ESPN’s argument that the University of Notre Dame should be required to release specific information from its campus police reports. The sports network sued Notre Dame after the university denied access to police reports related to student athletes.

Indiana statute allows but doesn’t require the attorney general to file such briefs. It seems clear that Zoeller added the weight of his office to this legal battle to support, in his words, the concept that “all persons are entitled to full and complete information regarding the affairs of government.”

It was hardly the first time we took note of Zoeller’s defense of the public’s right to know. In 2012, he intervened when lawyers at the Department of Child Services tried to restrain The Tribune from publishing an article, transcript and tape recording detailing a desperate call the DCS hotline received from a neighbor of 10-year-old Tramelle Sturgis’ family six months before the South Bend boy was tortured and murdered by his father.

The DCS appeal led to The Tribune being temporarily forbidden from publishing its story. Zoeller stepped in, overruled DCS lawyers and moved to dismiss the appeal, allowing this newspaper to post and publish the information. He later publicly apologized to The Tribune for the matter — even though it wasn’t Zoeller’s office that precipitated the situation.

Earlier this month, in explaining his position not to take a legal position on the issue of legislative secrecy, Zoeller pointed to the separation of powers. Positioning his office with Common Cause would mean opposing its client, state government. The fact that the legislature has hired outside counsel — at taxpayer expense — in its fight to keep out the public doesn’t end his office’s obligation “to not act in our law client’s legal interest,” he wrote.

By declining to support the legal challenge to legislative opacity, Zoeller is definitely providing excellent service to lawmakers who wish to keep the public’s business private. Less certain is who will step forward to defend the public’s right to the “full and complete information regarding affairs of the government.”

Posted by Marcia Oddi on September 16, 2015 10:09 AM
Posted to Indiana Government