Fatima Hussein

The Indianapolis Star

Now that the presidential campaign and most of the furor over Hillary Clinton's email scandal are behind us, the Pence administration is going to court to argue for its own brand of email secrecy.

The administration is fighting to conceal the contents of an email sent to Gov. Mike Pence by a political ally. That email is being sought by a prominent Democratic labor lawyer who says he wants to expose waste in the Republican administration.

But legal experts fear the stakes may be much higher than mere politics because the decision could remove a judicial branch check on executive power and limit a citizen's right to know what the government is doing and how it spends taxpayer dollars.

"It comes down to this — the court is giving up its ability to check another branch of government, and that should worry people," said Gerry Lanosga, an Indiana University media professor specializing in public records law.

In the case, Indianapolis attorney William Groth is appealing a decision handed down by Marion Superior Court in April, which decided that redactions the administration made to a public record could not be second-guessed by the court.

The focal point in the case is a political “white paper” that had been excluded from Groth’s public records request.

Pence’s legal defense team claims the white paper is attorney work product protected by Indiana’s Access to Public Records Act — and at the end of the day, matters of public records are not for a court to decide.

Groth argues the lower court misapplied the law.

“I think governmental transparency is an important concern of anyone who lives in a democracy – the governor cannot put himself above the law,” Groth told the IndyStar.

How the case came about

The matter stems from a lawsuit filed after President Barack Obama announced in November 2014 that he was taking new steps to "fix America’s broken immigration system." Those steps included offering deferred enforcement of immigration laws for parents of children born in the United States, and for children who entered the United States before they were 16 years old.

The action drew the ire of Republican governors across the country, including Pence, who called the policy a "profound mistake."

Pence, joined in on a lawsuit led by Texas Gov. Greg Abbot in State of Texas, et al v. United States, with the blessing of the Indiana Attorney General Greg Zoeller. Zoeller's office did not respond to IndyStar requests for comment.

Pence hired Indianapolis law firm Barnes & Thornburg to join the Texas litigation. A representative from the firm — which is also representing Pence in this case — did not respond to IndyStar requests for interview.

In December 2014, Groth requested information regarding Pence's decision to hire outside counsel and the cost to Indiana taxpayers.

"I think joining the lawsuit without the attorney general and hiring that firm was a waste of taxpayer dollars and the people have the right to know how much of their money was spent,” Groth said. Groth is known in Indiana for representing the plaintiffs in the 2008 U.S. Supreme Court voter identification case, Crawford v. Marion County Election Board.

Pence produced the documents in the request “but those documents included substantial redaction,” according to court documents.

The 57-page response also included an email that Daniel Hodge, Abbott's chief of staff, sent to 30 recipients in various states asking them to join the lawsuit against Obama.

The message included an attached white paper, but the governor failed to produce the document, according to court records.

After a yearlong trial, the Superior Court held that the issue was not a matter for the courts to decide, citing a Indiana Supreme Court case decided just days before.

In a 4-1 ruling, the Indiana Supreme Court ruled in Citizens Action Coalition, et al. v. Indiana House Rep., that under the Indiana Constitution’s separation of powers clause the legislature's redactions were nonjusticiable, a legal term that means not for the court to decide. Groth was also the attorney representing the plaintiffs in that case.

Groth appealed in June and the Indiana Court of Appeals will hear oral arguments Nov. 21 at 1 p.m. at the Statehouse, where each side will be allowed 20 minutes for arguments.

'A dangerous legal precedent'

Paul Jefferson, a former professor of state constitutional law at the Indiana University Robert H. McKinney School of Law, said the major question for the appellate court to decide is "whether they're going to extend that (Citizens Action Coalition, et al. v. Indiana House Rep.) to the executive branch as a whole."

He said if the court rules in favor of the governor, "that would severely limit the Access to Public Records Act."

It's a fear that even the highest levels of court have warned about.

In the sole dissent of the Citizens Action Coalition lawsuit, Indiana Supreme Court Justice Justice Robert Rucker stated: “The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record.”

The state's public access counselor, Luke Britt, appointed by Pence in 2013, also fears what might happen if other public officials invoke the Citizens Action Coalition privilege. "After that case, a lot of local government officials were trying to claim a similar privilege — that was one of my fears."

Jefferson said that "this will be interesting in part because it is hard to draw clean lines between what would be and what wouldn’t be if excluded from a public records request if the court is going to exempt the executive branch from public records review."

Lanosga, the public access professor, says the outcome of the case will set a precedent on what are appropriate levels of transparency in government.

"It shows no accountability," he said, "that an agency can say things are exempt just because and citizens have no recourse."