Marilyn Odendahl for Indiana Lawyer

It was a message the four women had heard before.

This time, a federal court agreed the conduct that Indiana Attorney General Curtis Hill Jr. is accused of is “disgraceful and reprehensible.” But the court ruled neither the law nor the Constitution can do anything to help the women in their effort to hold the state’s top lawyer accountable.

Chief Judge Jane Magnus-Stinson of the Southern Indiana District Court dismissed the lawsuit March 2 brought by three legislative employees and a state representative who claim they were sexually harassed by Hill, then retaliated against when their allegations were made public. In a 37-page opinion, Magnus-Stinson discussed each of the nine claims filed in the amended civil complaint and found they could not survive.

“There is no doubt that the allegations as to Attorney General Hill’s actions toward the Plaintiffs at the Sine Die Celebration, which the Court must accept as true at this stage of the litigation, describe disgraceful and reprehensible conduct, Magnus-Stinson wrote. “But the highly offensive nature of the alleged acts does not meet the legal standard necessary to establish a violation of any federal law of the Constitution of the United States by Attorney General Curtis Hill.”

The court dismissed with prejudice the plaintiffs’ Title VII discrimination and retaliation claims against the state of Indiana and the 28 U.S.C. § 1983 claims against Hill in his official capacity for sexual harassment, discrimination and retaliation in violation of the Equal Protection Clause and violation of the Substantive Due Process Clause.

Also dismissed with prejudice where the federal claims against Hill in his individual capacity for sexual harassment, discrimination, and retaliation in violation of the Equal Protection Clause and for violation of the Substantive Due Process Clause.

While the court dismissed with prejudice the state law claim for sexual battery against Hill in his individual capacity, it dismissed without prejudice the other state claims of battery, defamation and false light invasion of privacy. This enables the women to file a civil lawsuit against Hill in state court.

Following the decision, Hill said, “I am grateful for the court’s ruling dismissing the federal lawsuit. It is my great honor to serve the citizens of this great state and I look forward to continuing to protect and defend Hoosiers as their Attorney General.”

The plaintiffs were represented by Kimberly Jeselskis, Hannah Kaufman Joseph and B.J. Brinkerhoff of JBJ Legal. In a joint statement released after the ruling, the attorneys invoked Hollywood mogul Harvey Weinstein, who was found guilty of sexual assault Feb. 24, and indicated their clients are prepared to continue their legal battle.

“We understand there is a wide range of opinions on the ramifications and legal significance of Curtis Hill’s actions,” the attorneys said. “Until situations such as Harvey Weinstein, Attorney General Hill’s ‘reprehensible’ conduct at the Sine Die event, and his and the State of Indiana’s behavior in the days and months thereafter, may not fall within traditional fact patterns found in federal cases focusing on Title VII and Section 1983 claims.

“We respectfully disagree with the Court’s decision,” the attorneys continued. “However, yesterday’s order makes several things clear – Hill’s behavior that night towards these four women was unacceptable, that these women have claims they are entitled to bring in multiple forums available to them, including Federal and state courts here in Indiana, and that their pursuit of remedies and justice may and will continue forward.”

Noting the plaintiffs have highlighted their ability to amend their claims in their filings, the federal court seemed skeptical they would be able to realize a different result.

Federal Rule of Civil Procedure 15(a)(1)(B) allows a plaintiff to amend her complaint in response to a motion to dismiss but, Magnus-Stinson pointed out, the plaintiffs had already done that by filing an amended complaint after the defendants moved to dismiss the original complaint.

“The opportunity to amend in the fact of a motion to dismiss is not limitless,” the chief judge wrote, “and the opportunity also is not automatic after the Court rules on a motion to dismiss.”

Moreover, Magnus-Stinson called attention to the Southern Indiana District Court’s docket, which makes it the second busiest district court in the country. The court, she wrote, does not have the time or resources to rule on multiple motions to dismiss just to help the plaintiffs craft their claims.

“Additionally,” Magnus-Stinson wrote, “the Court cannot conceive of how the Plaintiffs could amend their Amended Complaint to cure the deficiencies noted above … .”

The four women – Gabrielle McLemore Brock, Niki DaSilva, Samantha Lozano, and Rep. Mara Reardon – filed this civil lawsuit in June 2019. 

They allege Hill made inappropriate comments and groped them at the 2018 sine die celebration that marked the end of the legislative session.

The women told legislative leaders, and they were interviewed by staff attorneys for the General Assembly. But according to the court’s ruling, Indiana House Speaker Brian Bosma told Lozano, “it’s a free country and [the House] can’t stop (Hill).”

The court notes Hill used his campaign website and funds to assert the allegations were false and “a key witness” confirmed her accusation was “materially inaccurate.” Also, his representatives held a press conference and threatened to pursue civil claims for defamation.

Within the Statehouse, the women claim they were ostracized and intimated.

The Indiana Office of the Inspector General and a special prosecutor, appointed by the Marion Superior Court, investigated the plaintiffs’ allegations. Hill was not interviewed directly but was allowed to submit a video-recorded statement with one of his attorneys asking him questions. In the end, the special prosecutor concluded, “[T]here is a little public benefit to be served by filing a misdemeanor charge or charges… .” The district court’s ruling comes as Hill is facing a recommendation that he serves a 60-day suspension without automatic reinstatement for violations of Indiana Professional Conduct Rules related to the groping allegations. The Indiana Supreme Court will have the final say on what, if any, discipline Hill will face.

Meanwhile, the Indiana House yesterday adopted language that would disqualify from the office of attorney general any attorney who has been suspended for 30 days or more. The language would also disqualify AG candidates who have been suspended for 30 days or more in the last five years – language that could jeopardize Hill’s reelection campaign. 

FOOTNOTE: The case is Niki DaSilva, Samantha Lozano, Gabrielle McLemore and Mara Reardon v. the State of Indiana and Curtis T. Hill, Jr., individually and in his capacity as the Indiana Attorney General, 1:19-cv-02453.