AG will pay D.C. outside counsel to help with Bernard case

Rokita has asked a Marion County Superior Court to correct its “erroneous judicial finding” that he should not have publicly disclosed his office’s investigation into an Indiana OB/GYN. Rokita and Scott Barnhart, director of the Consumer Protection Division of the Indiana Attorney General’s office, filed a motion to strike Jan. 9 in Bernard et al. v. Rokita et al., 49D13-2211-MI-038101. The motion stems from the lawsuit Caitlin Bernard, M.D., filed against Rokita, who claimed the physician did not follow reporting protocol when she terminated the pregnancy of a 10-year-old rape victim.

Indiana’s top attorney wants the trial court to revise its Dec. 2, 2022 order from Marion Superior Judge Heather Welch. The judge denied Bernard’s motion for preliminary injunction but also found Rokita had violated state law by talking publicly about his office’s investigation into the doctor’s conduct.

In its 43-page order, the court held Rokita “clearly violated Indiana law when discussing the confidential investigations in the media.” The court pointed to Indiana Code Section 25-1-7-10(a), which requires the attorney general to keep confidential all consumer complaints and “information pertaining to the complaints” until a notice is filed with the appropriate licensing board that his office intends to prosecute the licensee.

However, the motion to strike counters that Rokita followed the law by not making any statements about the complaints that had been filed against Bernard. He talked to the media and issued press releases about the investigation into Bernard, characterizing her as an “abortion activist acting as a doctor,” but the motion states he did not reveal that complaints had been filed.

In fact, the motion asserts the court order did not cite any evidence that Rokita even knew about the complaints when he appeared on Fox News Channel on July 13, 2022, and first acknowledged his office was looking into Bernard’s actions. Moreover, the motion continues, Bernard’s attorney, Kathleen DeLaney, was the one who disclosed the existence of the complaints.

“A public official must have breathing room to comment on matters of public importance,” Rokita’s motion argues. “And, a trial court cannot be used as an instrument to impose a gag order on a public official on an entire subject simply because that subject also forms part of a consumer complaint.”

Bernard has until Feb. 23 to file a response to the attorney general’s motion. The doctor is being represented by DeLaney and pro bono attorneys from Arnold & Porter Kaye Scholer.

The attorney general’s office did not respond to The Indiana Citizen’s question of why it is continuing to spend taxpayer dollars on this case when the state successfully blocked the preliminary injunction and the plaintiffs have moved to dismiss the case entirely.

Bernard’s attorney, Kathleen DeLaney of DeLaney & DeLaney, sees the motion to strike as the attorney general attempting to again present his case to the court.

“The Attorney General is trying to re-litigate issues that have already been decided by the court and asserts arguments inconsistent with Indiana law,” DeLaney told The Indiana Citizen in an email.

Outside counsel

The motion to strike was filed by the attorney general’s office and the law firm Schaerr Jaffe, which identifies itself as counsel for Rokita. Schaerr Jaffe is a boutique litigation firm that has represented governments, businesses and religious institutions in state and federal courts.

“We have a history of successfully assisting the Office of the Attorney General when it represents the people and officials of the State of Indiana against Caitlin Bernard and similar activists and organizations,” Gene Schaerr told The Indiana Citizen. “We are continuing in that role with the current litigation matters (involving Bernard).”

Former Indiana Attorney General Curtis Hill enlisted Schaerr Jaffe in July 2019 as outside counsel in the federal case Whole Woman’s Health Alliance v. Hill. The contract was amended three times to extend the firm’s term of service and cap the total amount paid at $800,000.

On Dec. 13, 2022, the attorney general’s office amended the contract again. This time the contract was extended to June 30, 2023 and the scope of the legal services was changed. The firm’s legal services were switched from assisting with Whole Woman’s Health to providing help in the federal case Bernard et al. v. The Individuals Members of the Indiana Medical Licensing Board, 1:19-cv-1660, as well as the Marion Superior case Bernard et al. v. Rokita.

Also, the total remuneration was increased to not exceed $900,000.

Schaerr is the only attorney listed from the firm listed on the motion to strike. A 1985 graduate of Yale Law School, he clerked for the late Chief Justice Warren Burger and the late Justice Antonin Scalia, then served as associate counsel to President George H.W. Bush. He led the appellate practice at Sidley Austin and Winston & Strawn before forming his own boutique litigation firm.

On Feb. 2, Schaerr and his law partner, Christopher Bartolomucci, filed verified petitions for temporary admission in Marion County Superior Court. Schaerr said additional attorneys from the firm would be assigned as needed.

Public statements

Rokita’s motion is trying to get the court to revise its order before it grants Bernard’s voluntary motion to dismiss the case entirely. The attorney general is objecting to the dismissal, arguing the record is incomplete because he offered no evidence about his public statements that were made more than a month before Bernard filed her lawsuit.

Bernard had sought a preliminary injunction in part to stop the investigation and stop Rokita from talking about his office’s actions. The trial court denied the preliminary injunction on the basis that Bernard failed to show she was irreparably harmed by the attorney general’s licensing division investigation into the consumer complaints. Also, the court noted it no longer had jurisdiction because the attorney general had referred the matter to the Indiana Medical Licensing Board.

Rokita’s motion argues that dismissing the case without allowing him to prove he did not violate the law would prejudice him in “another ongoing proceeding” where Bernard is using the finding against him.

“Maintaining public confidence in the Attorney General’s adherence to the law is of vital importance,” Rokita asserts in his motion.

The dispute between Bernard and Rokita began in July 2022. On June 30, the doctor performed an abortion on a 10-year-old who was six weeks pregnant as the result of a rape. The Indianapolis Star published a story July 1 about women coming to Indiana to seek abortion services, which included a section about Bernard and her 10-year-old patient.

According to court documents, Bernard fully cooperated with Ohio law enforcement and notified the Indiana Department of Health that a pregnancy had been terminated.

After publication of the Star article, the attorney general’s office received seven consumer complaints about Bernard, all referencing the abortion on the Ohio minor. Rokita then appeared on national television, saying his office was “going to fight this” and was “looking into (Bernard’s) licensure.” He noted if Bernard had failed to report the abortion to state officials, that would be a crime.

Subsequently, Rokita continued publicizing the matter. He issued two press releases, made additional comments to the media, made public a letter he sent to Gov. Eric Holcomb about the allegations and appeared on a Facebook Live broadcast.

Marion County Superior Court found those actions violated state law.

“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 court order stated.

Rokita’s motion maintains the attorney general was following his duty to keep the public informed about “his law enforcement activities.” In his public statements, according to the motion, he did not reveal that complaints had been filed against Bernard or discuss the contents of those complaints.

Also, Rokita argues Indiana Code section 25-1-7-10 provides a “narrow exception” to the attorney general’s duty to disclose information. Construing the law as prohibiting the attorney general from saying anything about ongoing investigations would be “unreasonable,” he asserts.

“Rather, the only rational interpretation is that Section 25-1-7-10 forbids the Attorney General from saying anything about the existence or contents of a complaint made pursuant to Indiana Code section 25-1-7-4, or anything that might identify the complainant, but still permits him to perform his traditional duty of informing the public about ongoing investigations,” Rokita’s motion argues.

The case has switched courtrooms and judges within Marion County Superior Court. Originally, Welch was presiding, but less than a month after the lawsuit was filed, the attorney general’s office submitted a motion for a change of judge. Although Welch granted the motion, she retained jurisdiction over the preliminary injunction, finding the plaintiff’s request was an emergency.

Since the Dec. 2, 2022, order, the case has been transferred to Marion County Superior Judge James Joven.