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Wednesday, March 01, 2017

Ind. Decisions - More on: Plaintiffs file petition for transfer in Pence/Holcomb redacted emails case

Updating this comprehensive ILB post from Feb. 7, 2017, re the petition to transfer filed in the case of Groth v. State, which sought certain emails from then-Governor Pence, here is the "Corrected Response of Appellee Mike Pence, as Governor of the State of Indiana, in Opposition to Petition for Transfer of Appellant William Groth," [response to transfer petition] which the docket indicates was filed Feb. 24th. From the response:

The Court of Appeals’ majority affirmed the trial court’s decision based on its conclusions that the Governor acted within his discretion in declining to turn over the white paper under the deliberative materials exemption in APRA, Opinion at 30-31, and that the Governor has properly withheld the white paper because it is subject to the attorney-client privilege, id. at 23-30.

However, the Court rejected the Governor’s argument that his decision to withhold the white paper was nonjusticiable under the separation of powers provision of the Indiana Constitution, Opinion 9-18. The Governor has not sought transfer of that issue, but it would be presented for resolution if transfer is granted. Ind. App. R. 58(A). * * *

For the reasons set forth in sections I and II, supra, this Court should deny transfer. If this Court does grant transfer, it should consider addressing the issue discussed in section III, supra.

The "issue discussed in section III" was summarized in a Fort Wayne Journal Gazette editorial:
[But the governor also argued that under the separation of powers, the open records law did not apply to him.] “The governor’s argument would, in effect, render APRA meaningless as applied to him and his staff,” Najam wrote. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”
That portion of the Court of Appeals ruling may now be at risk if the Supreme Court grants transfer, even though it is not the portion of the opinion that petitioner Groth is appealing. The ILB asked Groth attorney Greg Bowes about the decision to petition for transfer to the Supreme Court:
We pursued the petition for transfer, because we believe the Court of Appeals decision improperly expanded the common interest doctrine and the interpretation of deliberative materials. Even the Public Access Counselor has written that the deliberative materials exception only applies when the information comes from within the government. We knew the governor could reassert the separation of powers issue, but felt the Supreme Court had very narrowly decided the Koch case, and hoped it would not allow the idea to be extended to the executive branch.

I believe there has been a dangerous pendulum swing away from government transparency, and hope this appeal will provide some pressure to push the pendulum in the opposite direction.
Re whether Pence is still involved in this case, presumably the automatic substitution rule of Ind. App. Rule 17(C)(1) applies:
C. Substitution Of Parties.

(1) Automatic Substitution for Public Officers in Official Capacities. When a public officer who is sued in an official capacity dies, resigns or otherwise no longer holds public office, the officer's successor is automatically substituted as a party.

Next scheduled to be filed is a Reply Argument on Transfer.

Posted by Marcia Oddi on March 1, 2017 09:16 AM
Posted to Ind. App.Ct. Decisions | Indiana Decisions | Indiana Government