Appeals court sides with Rokita in public records case following retroactive law change

The Indiana Court of Appeals this week reversed a lower court opinion to side with Attorney General Todd Rokita in his legal fight to keep confidential an advisory opinion about his outside legal work.

The decision came after Indiana lawmakers added an exemption for such opinions — while Rokita’s appeal was pending — to the state’s public records access law.

“Based on this turn of events, we reverse and remand with instructions,” the three-judge panel agreed in an opinion by Judge Dana Kenworthy, released Monday.

The case can be further appealed to the Indiana Supreme Court.

Outside employment spat leads to legal case

When Rokita took office in January 2021, he asked the Indiana Office of the Inspector General (OIG) for an informal advisory opinion on the ethics of his continued external employment with Apex Benefits, an Indianapolis-based employee benefits brokerage firm. He got the opinion.

In comments to the Indianapolis Business Journal several weeks later, a spokesperson from Rokita’s office assured readers the opinion clarified Rokita’s “interests and outside employment are all squarely within the boundaries of the law and do not conflict with his official duties.”

Barbara Tully, an Indiana resident, contacted Rokita’s office for access to the opinion, and when her request was denied, turned to the state’s public access counselor. His office still wouldn’t provide the document so she sued.

A trial court granted Tully summary judgment and asked Rokita to give Tully a redacted copy of the opinion. Rokita appealed.

While his appeal was pending, Indiana lawmakers during the 2023 session approved new language explicitly making any OIG informal advisory opinion confidential — including previously issued ones.

“Subsection 9 changed the playing field by purporting to resolve any dispute over the scope of the OIG’s authority to grant confidential informal advisory opinions,” Kenworthy wrote.

Rokita had ended his involvement with Apex by March 2021, the Indianapolis Star reported. But his office told the paper that he’d maintain other “private sector business interests” while in office.

Court weighs in

Although Tully argued the last-minute legal change violates Indiana’s Constitution, the court disagreed, with Kenworthy noting there’s no ban on applying retroactive laws on appeal.

“Courts must generally honor the legislature’s choice to make a law retroactive unless doing so would violate a vested right or constitutional guarantee,” she wrote.

Kenworthy observed that because the court’s decision was not necessarily a final one, the legal edit wouldn’t infringe on the judiciary’s duties.

“Once a decision reaches finality — meaning no further appeal may be taken — it becomes the last word of the judicial department regarding that case,” she wrote. “At this point, the legislature cannot ‘declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.'”

And she emphasized that “courts do not set policy, the Legislature does.”

“Having interpreted the challenged statute, we conclude it falls within the legislature’s broad discretion and does not run afoul of the Indiana Constitution,” Kenworthy continued. “Therefore, we heed ‘our limited constitutional role’ and leave this policy decision to our coordinate department — the legislature.”

The court instructed the trial court to grant Rokita’s cross-motion for summary judgment.