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Tuesday, April 26, 2016

Ind. Courts - Will the non-justiciability rationale of CAC v. Koch be applied equally to the executive branch, further limiting APRA?

Here is a quote from Megan Banta's $$ April 18th story in the Bloomington Herald-Times on the CAC v. Ind. House Caucus oral argument:

Before they address the question of balancing the public’s right to know with legislative duties and what exactly is subject to the public records law, though, the justices must first determine if they even are able to make a ruling in the case, period.

The Indiana Supreme Court long has ruled that the judicial branch can’t interfere with legislative procedures under the Constitution’s separation of powers clause.

Geoffrey Slaughter, who represents the House Republican caucus, argued that precedent applies in this case. And he argued that it stretches further, as well, to cover every other constitutional office in the state, from governor to statewide elected officials to prosecuting attorneys, when they are performing their core function.

Justice Mark Massa said that essentially would limit the law to administrative offices and the bureaucracy and seemed to favor a ruling not on constitutional grounds, something he said “would do less damage to the APRA.”

And [the CAC's attorney William] Groth expressed concerns with taking the separation of powers clause that far, as well.

He said he feared it could be applied to other constitutional offices.“I don’t know where it stops,” Groth said.

Groth asked the court to find that the judicial branch can rule in this circumstance without it being an interference and to send the case back down to the lower court.

Groth raised this caution in his opening brief, as well as the rely brief. From pages 24-25 of the CAC's opening brief:
Fourth, any concerns about the release of communications from individual members of the public would apply equally to communications to the executive branch, but that would not justify the wholesale exemption of the executive branch from its APRA obligations. Thus, to hold this case nonjusticiable because it involves the legislative branch of government would call into question whether APRA claims involving the executive branch of government are also nonjusticiable.
And from the CAC reply, fn 4 at p. 11:
These are no reasons these same concerns would not equally apply to lobbyist or constituent communications with legislative bodies other than the General Assembly, such as city and county councils, as well as to Executive Branch communications, but the Caucus chooses selectively to focus solely on communications with its own members.
As the Herald-Times story pointed out, the justices raised concerns about justicability and its potential ramifications during oral argument. [the ILB is hoping later to insert timeline locators]

In their 4-1 April 19th opinion, the Court's majority stated:

However, we find non-justiciable the question of whether the documents requested in this case are exempt from disclosure under APRA’s work product exception, Indiana Code section 5-14-3-4(b)(14). Accordingly, under Indiana Trial Rule 12(B)(6), we affirm the trial court’s dismissal.
Justice Rucker, writing in dissent, said:
The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record. I would refrain from so doing and instead remand this matter to the trial court for further proceedings.
This week, in an APRA case against Governor Pence in which attorney Groth is the plaintiff, Governor Pence is now asserting a nonjusticiability defense based on CAC v. Koch. Some quotes from an April 22nd document, Governor Pence's Submission of Additional Authority, in Groth v. Pence, a case in Marion Superior Court:
The Court thus held [in CAC v. Koch] that "determining whether the documents requested by Plaintiffs are excepted under APRA as legislative work product is a non-justiciable question."

This case presents the same non-justiciable question because it asks this Court to determine whether the documents requested by Mr. Groth directly from Governor Pence are excepted under APRA as work product, deliberative material, or attorney-client privileged material. Indeed, this case involves, in part, different subsections of the very statute at issue in Koch. See Ind. Code 5-14-3-4(b)(2), (6), (10).1 Just as the judiciary should not "intermeddle" with the legislature's determination of what constitutes its own work product, the judiciary should also not "intermeddle" with the executive's determination of what constitutes its own work product, deliberative material, or privileged material. The Koch plaintiffs sent their request directly to Representative Koch; here, Mr. Groth sent his request directly to the Governor. Complaint, Exhibit A. The requests to Representative Koch were denied based on exceptions to APRA, among other reasons, just as Governor Pence denied Mr. Groth' s requests based on exceptions to APRA. Mr. Groth now asks this Court to review Governor Pence's determinations, just as the Koch plaintiffs did. In Koch, the Indiana Supreme Court declined to engage in this review because it constituted interference in the internal operations of another branch of government. This Court should likewise decline to interfere in the Executive's internal operations under Koch.

Posted by Marcia Oddi on April 26, 2016 08:18 PM
Posted to GA and APRA | Indiana Courts | Indiana Government