It all started with a joint lawsuit the Indiana governor filled against the U.S. government. Wochit
Vice President-elect Mike Pence walks through the halls of Russell Senate Office Building on Capitol Hill in Washington, Tuesday, Jan. 17, 2017.(Photo: Carolyn Kaster, AP)
An area laborattorney has petitioned theIndiana Supreme Court to take up his caseagainst Vice President Mike Pencein hopes that the courtwillrevealthe contents of a political white paper the former governor has fought to keep secret for nearly three years.
If successful, the communicationscould reveal a slewofRepublican political strategiesthat Pence and dozens of other U.S.governors devised againstformer President Barack Obama and anexecutive orderissued on immigrationduring his time as president.
William Groth's petition fortransfer to the Indiana Supreme Court is part of a more than two-year legal battle between the Democraticattorney and the current vice president, who was acting inhis role as Republican governor of Indiana during the events in question.
"The petition we filed today raises important issues regarding the scope and application of certain exceptions to Indiana's public transparency law," Groth told IndyStar.
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Indianapolis attorney GregBowes filed the 19-page petition Monday afternoon on behalf of Groth. They claim the appeals court erred last Januaryin determining that the white paper was a "deliberative material" for the purpose of preparing for litigation and thus siding with Pence.
The appeals court ruled thatGrothdoes not have the right to view a political white paper that was included ina 2014 public records request.
The white paper in question contains legal theories in contemplation of litigationthat was used by the governor in his decision to join State of Texas et al v. United States of America,which challenged a presidential executive order President Barack Obama issued regarding immigration.
Groth filed a request under the Indiana Access to Public Records Act seeking the documents related to the states decision to hire Barnes & Thornburg LLP as outside counsel in the suit.
In the 2-1 appellate court decision, thecourt, however, did not relinquish its power to second-guess the executive branch on matters of the Indiana Access to Public Records Acts.
That was an important finding because advocates of government transparency 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.
Judge Edward W. Najam, in a 41-page opinion, affirmedthe merits of the governors decisionto withhold the white paper from public disclosure.
Najamadded, however, "the Governor contends that his 'own determinations'under APRA are conclusive and that it would violate the separation of powers doctrine for the judiciary to 'second guess' those determinations. We cannot agree."
In other words, the opinion concluded that a governor's decision to deny a public records request can be reviewed by the court.
Chief Judge Nancy Vaidik concurred in part but ultimately dissented because she disagreed with the majoritys conclusion that Pence "has met his burden of showing that the white paper is not subject to disclosure.
Vaidik wrote that she would"reverse the trial court on this issue and order Governor Pence to produce the white paper.
In filing the petition to the Supreme Court, Groth is requesting the courtconsider whether the Court of Appeals improperly found thata document shared outside of the attorney-client relationship, here the white paper,is legally protected by the attorney-client relationship doctrine.
He is also asking the court whether the court of appeals improperly created a "deliberative materials exception" tostate public records laws to include information received from outside an Indiana government agency.
"Pence continues to invoke those exceptions in his desire to keep secret from his constituents a document prepared not by his own attorneys but one from the office of the Texas Attorney General," Groth said.
How the case came about
In December 2014, Grothrequested information regarding Pence's decision to hire outside counsel for the immigration litigation and its cost to Indiana taxpayers.
"I think joining the lawsuit without the attorneygeneral 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 told IndyStar in November. Groth is known in Indiana for representing the plaintiffs in the 2008 U.S. Supreme Court voter identification caseCrawford 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, Texas Gov. GregAbbott'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,butthe governor failed to produce the document, according to court records.
The Superior Court ruled in favor of Pence, ruling that the redactions the administration made to thepublic record were "proper."
The ruling left open thepossibility that the executive branch could utilize a previously decidedIndiana Supreme Court case that could haveprotected all of the Governor's communications from public records inquiry.
In a 4-1 ruling, the Indiana Supreme Court ruled inCitizens Action Coalition, et al. v. Indiana House Rep.,that underthe Indiana Constitutions 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.
"We hold that, on these facts, Citizens Action Coalition does not apply to the request for public records directed to the Governor," Najam said in the appellate decision.
Groth appealed thedecision handed down by Marion Superior Court in April.
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Mike Pence's redacted emails could head to Indiana Supreme Court - Indianapolis Star