For the first time since the Marion County Superior Court issued an order in December 2022 which found, in part, that Indiana Attorney General Todd Rokita violated a state confidentiality law, attorneys representing the state’s top lawyer and Indianapolis OB/GYN Caitlin Bernard were back before a judge Tuesday morning arguing over whether the trial court could reopen the case to remove the finding against Rokita.

The hearing in Bernard et al. v. Rokita, et al, 49D13-2211-MI-038101, was held in Marion County Circuit Court before Judge Amber Collins-Gebrehiwet in the Community Justice Center (above) in Indianapolis.

Christopher Bartolomucci, partner at Schaerr Jaffe, and Patricia Orloff Erdmann, chief counsel for litigation in attorney general’s office, represented Rokita. Bartolomucci told the judge Rokita should be allowed to challenge the confidentiality finding because it is prejudicial not only because the ruling is being used against him in other proceedings but it is also undermining the public’s confidence in the attorney general.

Paul Rodney and Elissa Preheim, attorneys with Arnold & Porter Kaye Scholer, along with Matthew Gutwein, partner at DeLaney & DeLaney, represented Bernard. Rodney countered the trial court no longer has jurisdiction because the case has been moved to the Indiana Medical Licensing Board, saying that moreover, Rokita can rebut the finding that he broke state law by making his arguments before the board.

Collins-Gebrehiwet did not ask questions or interrupt the attorneys as they presented their arguments. At the conclusion of the roughly 30-minute hearing, she said should issue a ruling by May 20.

However, Collins-Gebrehiwet started the proceeding by informing the parties she was only going to consider the attorney general’s motion to strike the plaintiffs’ notice to dismiss the case. Rokita had also asked for the court to correct what he described as the “erroneous finding” that he violated state law.

Citing the 2003 decision from the Court of Appeals of Indiana in Turner v. Turner, 983 N.E.2d 643, Collins-Gebrehiwet told the parties the original judge who issued the finding would have to hear the arguments in the attorney general’s motion to reconsider and correct error. She told the parties she does not believe she has jurisdiction to hear the matter.

Judge Heather Welch issued the Dec. 2, 2022, order which included the determination that Rokita had broken confidentiality. If Collin-Gebrehiwet rules the attorney general should be allowed to challenge that determination, then Rokita would have to go before Welch and argue the finding was wrong.

Bartolomucci said he did not agree with Collins-Gebrehiwet’s reasoning but did not argue the issue. Instead, at the end of the hearing, he asked the judge if he could submit a brief presenting his arguments against returning the case to Welch’s court.

“You can file a brief,” Collins-Gebrehiwet replied, “but I’ve researched it pretty well.”

After the hearing, the attorney general’s office released a statement doubling down on its accusations against Bernard and reiterating its request to revise Welch’s order.

Reading from a prepared statement, Kelly Stevenson, press secretary for the attorney general’s office, said, “First, we must remember this entire issue started when a doctor violated patient privacy by sharing confidential information at a political event and failed to report according to Indiana law so that she was not returned to an environment of a perpetrator.

 “Those issues are currently under consideration by the Indiana Medical Licensing Board,” Stevenson continued. “And today’s proceeding is all about ensuring that the board can make its decision free from an unwarranted conclusion previously made by this court. That is why we are asking the court to vacate that conclusion. We look forward to the judge’s final ruling on this case.”

Plaintiffs’ counsel issued a statement, saying Rokita should not be allowed to go back and present new arguments in a case that has ended.

“Attorney General Todd Rokita is challenging the Court’s December 2, 2022, order finding that the Attorney General violated the law by disclosing confidential information to the media about Dr. Caitlin Bernard,” the attorneys for Bernard said in a statement. “Like every other litigant, the Attorney General cannot now, after the Court has closed the case, try to relitigate issues that he previously had the opportunity to address.”

Confidentiality finding

The fight between Bernard and Rokita started when The Indianapolis Star published a story July 1, 2022, examining the impact of abortion bans in neighboring states following the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, 124 S. Ct., 2228 (2022). Included in the article was a reference to an abortion Bernard had performed on a 10-year-old rape victim from Ohio who had to come to Indiana where the procedure was still legal.

According to court documents, the attorney general’s office began receiving complaints about Bernard on July 8. About a week later, Rokita began making public statements about Bernard and alleging she had violated state law by not reporting the abortion to authorities.

State law, Indiana Code section 25-1-7-10(a), prohibits the attorney general from publicly discussing any consumer complaints or any investigations the office is conducting. Rokita has maintained he did not violate the law because he did not reveal the existence of the complaints or their contents. Rather, he shared that his office was investigating suspected wrongdoing based on facts already known to the public.

In the December order, Welch recounted Rokita statements starting with an appearance July 13 on national television. He said his office was “gathering the information” and “gathering the evidence.” A day later, his office issued a press release stating, “we are investigating this situation” and “her behavior could also affect her licensure.”

Welch concluded, “The public statements made by the Attorney General prior to the referral of the matter to the medical licensing board, therefore, are clearly unlawful breaches of the licensing investigations statute’s requirement that employees of the Attorney General’s Office maintain confidentiality over pending investigations until they are so referred to prosecution.”

The determination about Rokita’s actions was part of Welch’s order which denied Bernard and Caldwell’s motion for a preliminary injunction. The plaintiffs had filed the motion to stop the attorney general from continuing to make public statements which they said were damaging their reputations and putting their families in danger.

Welch noted in the order that the court no longer had jurisdiction because the matter had just been referred to the medical licensing board. After Welch issued the order, the plaintiffs filed a motion for voluntary dismissal of the lawsuit.

Oral arguments

In court Tuesday, Bartolomucci said dismissing the case would deny the attorney general from contesting the assertion that he violated state law. He argued the conclusion of law finding Rokita had breached confidentiality restrictions was erroneous and “it was dicta in the classic sense” because it was not necessary to the court reaching a decision on the preliminary injunction motion.

Moreover, Bartolomucci continued, Rokita had no chance to rebut the finding and now it is being used against him in the Barnard matter before the medical licensing board.

The Schaerr Jaffe attorney said his client does not want to reopen the case for a large litigation but just wants a limited opportunity to correct the ruling “we felt is in error.”

Rodney replied that the attorney general was making an “extraordinary request” to reopen a case in which the state had prevailed.

In addition, the attorney general should not have been surprised by the confidentiality issue, Rodney said. The plaintiffs highlighted Rokita’s public comments in their original complaint filed with the court and their preliminary injunction. It was part of their legal argument showing they had been irreparably harmed by the statements about the investigation.

Consequently, Rodney argued, the trial court had to address Rokita’s actions as part of its analysis to reach a conclusion if the plaintiffs had been irreparably harmed.

Rodney continued that the voluntary dismissal erases the lawsuit so the case is treated “as if it never existed.”

Bartolomucci pushed back that the case is continuing to exist because Bernard included Welch’s order in an exhibit filed in the medical licensing board proceeding. The doctor, Bartolomucci said, is not treating the case as if it never existed.

The medical licensing board has scheduled a May 25 hearing in the Bernard case. — Marilyn Odendahl

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