AG Rokita argues disciplinary commission is violating his free speech

By Marilyn Odendahl, The Indiana Citizen 6 hrs ago  0

Indiana Attorney General Todd Rokita is hitting back at the Indiana Supreme Court Disciplinary Commission, claiming it is making an “impermissible attempt” to curb his right to free speech and indicating that he is launching an investigation of his own into its actions.

The state’s top lawyer made the allegations in a motion to dismiss that he filed Thursday, asking the Indiana Supreme Court to toss new disciplinary charges that the commission has lodged against him. Rokita, represented by three separate law firms, asserted the commission is going after him for his political speech and retaliating for his proposed changes to the disciplinary process rules.

“Attorney General Rokita should be permitted to speak freely to his constituents without the constant threat of an unelected Commission parsing his every word, ready to pounce with a disciplinary action when they perceive any imagined inconsistency,” Rokita argued in his motion to dismiss.

The complaint is part from the second of three known disciplinary cases that Rokita has faced since he was first elected attorney general in 2020. These new misconduct charges stem from the statement he made after he was publicly reprimanded on Nov. 2, 2023, by the Indiana Supreme Court. The disciplinary commission then conducted a 14-month investigation into Rokita’s comments and concluded that he made false statements to the Indiana Supreme Court, engaged in dishonest behavior and misrepresented that he accepted responsibility for his misconduct.

In the third case, Rokita is facing a disciplinary investigation, which is still ongoing, over his statement in April 2024 that said anyone could sue the Indiana Department of Health if it failed to publicly release terminated pregnancy reports. Rokita said that after issuing an official, advisory opinion claiming that TPRs were public records. The attorney who filed the grievance alleges that Rokita committed misconduct since he, as the state’s top attorney, is obligated to represent all state agencies, including IDOH.

In the second case, the commission found that Rokita’s assertions in his post-reprimand comments contradicted the statements he swore to in the conditional agreement and affidavit that settled the first disciplinary complaint.

However, in his 26-page motion to dismiss, Rokita painstakingly compared the assertions in the conditional agreement and affidavit that he had earlier signed to the 675-word statement he released following his reprimand. He accused the disciplinary commission of attempting to “fabricate misrepresentation where none exists” and basing its complaint on “false contradictions.”

Throughout his motion, Rokita responds to the allegations by repeatedly asserting that his free speech rights are being violated.

“The First Amendment does not permit the Commission, as an agent of the state government, to punish Respondent, an elected public official, for his free speech,” Rokita argued in his motion. “Respondent had a right to issue the press release about the Conditional Agreement, and Hoosiers had a right to hear what he had to say about the matter.”

Rokita also claimed that as attorney general he has a heightened protection for his speech under the U.S. and Indiana constitutions because, he asserted, he speaks for all Hoosiers.

“The First Amendment does not permit the Commission, as an agent of the state government, to punish (The attorney General even has greater speech protection under our Constitutions because he does not speak (and was not speaking) with one voice,” Rokita argued in his motion. “He speaks with millions of voices as a statewide elected official and these voices are all equally protected under our Constitutions.”

In addition to his free speech defense, Rokita also argued that the disciplinary commission is violating Indiana’s anti-SLAPP law and he plans to seek “relevant discovery” to determine whether the disciplinary complaint was “filed for an ulterior political end.” The anti-SLAPP statute, the acronym of which stands of Strategic Lawsuits Against Public Participation, provides protection for free speech and is often used by journalists to defend against baseless legal actions meant to intimidate.

Rokita said the disciplinary complaint against him should be dismissed under the anti-SLAPP law, in part, because the post-reprimand statement that he made was “an obvious act in furtherance of (his) right of free speech.”

In a footnote, the attorney general put the commission’s members and staff “on notice” that he will be engaging in discovery in regards to his anti-SLAPP claim. He said they had a duty to preserve all documents and communications, “including on any personal email accounts,” related to his post-reprimand press release, the change in disciplinary procedure rules he has proposed and the pending disciplinary action against him. Rokita asked the Supreme Court to rule on his motion to dismiss within 180 days and set a schedule for the discovery of evidence.

Moreover, in arguing that the commission should withdraw the charges, Rokita indicated he is not going to negotiate a settlement of the disciplinary charges but, rather, will take the complaint to a disciplinary hearing. He also alluded to a potential for harm if the commission proceeds with the complaint.

“Given the compelling reasons for dismissal, the Commission should not force this (Supreme) Court to clean up the Commission’s mess and incur the risk of having the Commission’s authority limited in all future cases,” Rokita asserted in his motion to dismiss. “The Commission should withdraw the Complaint to help preserve the integrity of the attorney discipline system as a public hearing will only serve to further highlight all the above issues—including the repeated appearances of impropriety by Commission members and staff. The Commission should instead reconsider its determination that there is probable cause to proceed against Respondent (Rokita).”

Focusing on post-reprimand statement

Rokita’s entanglements with the disciplinary commission began when his numerous public comments and allegations about Indianapolis OB/GYN Caitlin Bernard in the summer of 2022 raised alarm within the Indiana legal community and led to his first disciplinary complaint.

The attorney general focused on Bernard, after she confirmed to a newspaper reporter that she had performed an abortion on a 10-year-old rape victim from Ohio. When the U.S. Supreme Court overturned Roe v. Wade, the Buckeye State enacted severe restrictions on reproductive care and the young girl had to seek treatment in Indiana.

In response, Rokita spotlighted Bernard in television and newspaper interviews in which he appeared, noting his office was investigating and gathering evidence against her and was looking at her medical license. He also made public a letter sent to then-Gov. Eric Holcomb about Bernard and appeared on a “Facebook Live” broadcast where he, again, referenced his office’s investigation into the physician.

After a disciplinary complaint was filed against the attorney general, Rokita’s attorneys negotiated the conditional agreement with the disciplinary commission. The agreement focused solely on the statements he made in a July 13, 2022, appearance on Fox News and found he ran afoul of two professional rules of conduct for describing Bernard as an “abortion activist acting as a doctor—with a history of failure to report.” Indiana law requires doctors to file a terminated pregnancy report, or TPR, on every abortion performed.

A narrow, 3-2 majority on the Indiana Supreme Court accepted the conditional agreement and about two hours later, Rokita issued his defiant statement. He said his words were factual and he had “evidence and explanation for everything he said.” Also, he said, he could have fought the charges but decided to sign the affidavit to “save a lot of taxpayer money and distraction.”

The disciplinary commission obtained drafts and communications from employees of the attorney general’s office related to the post-reprimand statement as part of that investigation and found Rokita had been involved in the drafting and editing process of that same statement. That bolstered the commission’s conclusion that Rokita was not sincere when he signed the conditional agreement and affidavit to settle the first disciplinary complaint.

In his motion to dismiss the new complaint, Rokita described the commission’s review of internal documents from his office as improper and said the commission “appears to be policing (his) thoughts by purporting to evaluate his ‘intent’” by reviewing the rough drafts of the statement that were circulated among his communications team. He deflected his involvement in drafting the statement, saying “much of it (was) written by staff and then changed or rejected” by him.

Also, he argued that the commission was weaponizing the disciplinary process.

“The Commission’s actions set a dangerous future precedent that an elected official’s—or any lawyer’s—unpublished drafts or even thoughts can be utilized to justify a feeble allegation of dishonesty,” Rokita asserted in his motion.

Accusation of retaliation

Rokita is also accusing the commission of filing the disciplinary charges in retaliation for his releasing to the public his proposed rule changes to the attorney disciplinary process. He said his proposal “included some sharp criticism of the Commission’s conduct.”

The attorney general’s proposed revisions include banning the disciplinary commission from investigating a grievance based on “political speech or advocacy,” which is defined as “words or conduct intended to marshal public support for an issue, position or candidate.” Also, Rokita seeks to limit the commission’s interaction with individuals who file a grievance against an attorney in order to keep any investigation confidential unless or until a complaint is filed.

In his motion to dismiss the new complaint, Rokita bristled that the investigation into his post-reprimand statement had become public knowledge even before the complaint had been filed.

“(Rokita’s) Rules Proposal cast light on Commission’s decision to consider repetitive and overtly political grievances filed by self-proclaimed liberal activist attorneys who have no personal knowledge of the alleged offending conduct,” Rokita’s motion stated. “Then, the Commission—acting in lock step with the activists—reports their ‘confidential’ investigation to the activists, who disseminate the information to the press. This cycle continues to repeat itself, to the detriment of the attorney grieved against and the entire disciplinary system.”

The attorney general has not presented any evidence of the disciplinary commission “acting in lock step” with the attorneys who filed the grievances. As part of the normal disciplinary process, the commission keeps individuals who file grievances informed as the work progresses. The commission sends a letter confirming receipt of the grievance and then sends another letter noting whether the grievance has been dismissed or whether an investigation has been launched.

A growing legal team

Rokita’s motion to dismiss lists three separate law firms as representing him in his matter. The firms are Schaerr Jaffe, based in Washington, D.C., and Ammeen & Associates and Lewis and Wilkins, both based in Indianapolis.

Indiana taxpayer money is being used to pay the legal fees.

Schaerr Jaffe defended Rokita in the first disciplinary complaint and negotiated the conditional agreement. The firm has been enlisted to do other legal work for the attorney general’s office. Its current contract extends to Dec. 31, 2026, and is capped at $1.9 million.

Ammeen & Associates has a contract that cannot exceed $315,000.

Lewis and Wilkins has long had a contract to handle cases for the attorney general’s office, but it is not known when the firm joined Rokita’s disciplinary defense team.

The two attorneys listed on the motion to dismiss—Paul O. Mullin and E. Ryan Shouse—successfully represented the Indiana Department of Health in the lawsuit brought by Voices of Life, a South Bend-based anti-abortion group to force the release of the terminated pregnancy reports. Rokita tapped Lewis and Wilkins to represent IDOH after the department sought outside counsel because the attorney general had previously announced his position that the TPRs were public records.

Lewis and Wilkins’ current contract runs to Dec. 31, 2026, and is capped at $18.88 million.

This article was published by TheStatehouseFile.com through a partnership with The Indiana Citizen, a nonpartisan, nonprofit platform dedicated to increasing the number of informed, engaged Hoosier citizens.

Indiana Citizen Editor Marilyn Odendahl has spent her journalism career writing for newspapers and magazines in Indiana and Kentucky. She has focused her reporting on business, the law and poverty issues.