« Ind. Decisions - 7th Circuit decided one Indiana application yesterday [Updated] | Main | Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s)) »

Friday, March 17, 2017

Ind. Decisions - More on: The email attachment that is the object of Groth v. Pence is now public

Updating this ILB blog from March 15th, which linked to the document at issue, Fatima Hussein of the Indianapolis Star reports this morning in a story headed "Pence document shows Republican strategy for fighting Obama immigration plan." Some quotes:

After the administration of former Gov. Mike Pence, who is now vice president, fought the release of a political white paper for two years, the contents of the document were released by officials from another state.

The six-page document discusses legal precedents that could be used to challenge former President Barack Obama's 2014 decision to defer enforcement of certain immigration laws.

"The focus of the proposed litigation is not immigration," said the document, written by Texas Gov. Greg Abbott, who was then attorney general. "Rather, it is the scope of executive authority." * * *

Wednesday, the white paper obtained from another state was released by a website called Rewire, dedicated to women's reproductive rights. Just hours later, attorneys representing the governor's office sent Groth's attorney, Greg Bowes, a copy of the white paper and filed a motion "Regarding Change in Circumstances," in an attempt to moot the case.

"Because the document is now in the public domain for the first time, it is now subject to disclosure under APRA," wrote attorney Joseph Chapelle to Bowes. Chapelle originally represented Pence, but under rules of civil procedure now works on behalf of current Indiana governor Eric Holcomb.

The white paper focuses on how "the unchecked expansion of executive authority wielded by President Obama threatens the constitutional balance of power."

Ironically, the Groth v. Pence case also touches on a question of executive authority. After Groth filed suit in Marion County Superior Court, a judge ruled in favor of Pence, saying the redactions the administration made to the public record were "proper."

The ruling left open the possibility that the executive branch could claim that its redactions were nonjusticiable, a legal term that means not for the court to decide. That finding was based on an earlier Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep. about redactions made by the legislature.

Groth appealed the decision in April. This January, the Indiana Court of Appeals ruled that Groth does not have the right to view the political white paper, but disagreed with the governor's contention that it would violate the separation of powers doctrine for the judiciary to second guess the redactions.

That was an important finding to advocates of government transparency, who feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Earlier this year, Groth petitioned the Indiana Supreme Court to take up the case, then attempted to remand the case back to the trial court in light of an IndyStar investigation revealing that Pence used a private email account to conduct government business and was hacked.

Bowes said the revelation of the white paper may affect how the court proceeds, "but this does not moot our case," he said.

"The revelation just supports our argument that we made to the Supreme Court that Texas was obviously seeking other states to join the lawsuit," Bowes said. "We feel an obligation for the case to continue."

ILB: Here are copies of:

Posted by Marcia Oddi on March 17, 2017 09:57 AM
Posted to Indiana Government