STATE OF INDIANA
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COUNTY OF MARION
IN THE MARION SUPERIOR COURT
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SS:
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CITIZENS ACTION COALITION
OF INDIANA, ENERGY AND
POLICY INSTITUTE, and
COMMON CAUSE OF INDIANA,
CAUSE NO. 49D14-1504-PL-12401
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Plaintiffs,
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FILED
@
AUG 04 2015
~J- ~ UdM.dp(2)
~OIlTH£ MARION CIRCUITCOU~
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v.
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ERIC KOCH and INDIANA HOUSE
REPUBLICAN CAUCUS,
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Defendants.
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Defendants' Reply Brief in Support of
Rule 12(B) Motion to Dismiss
Plaintiffs are unable to withstand dismissal of their case. To avoid dismissal, they
needed to show both that their. claims are justiciable and that they have stated chums oli.
which judicial relief against Defendants can be granted. Plaintiffs have shown neither.
Argument
I.
Plaintiffs' claims are not justiciable.
A.
Defendants' acknowledgment that the General Assembly is subject to
the public-records statute does not entitle Plaintiffs to judicial relief.
In their opposition brief, Plaintiffs try to make much of Defendants' acknowledgment that the Access to Public Records Act applies to the General Assembly.
This "concession" [Pl. Opp. 2], which merely construes the Act as written-it applies to
"public agencies", including those that exercise "any part of the ... legislative power of
the State", Ind. Code §5-14-3-2(n)(1)-does not entitle Plaintiffs to the relief they seek in
this lawsuit. Plaintiffs both overstate what Defendants have conceded and misunderstand the implications of the concession. Here is what Plaintiffs said in their brief: "As
to Defendants' TR 12(B)(1) motion to dismiss, Defendants contend that notwithstanding
their concession that the [Act] applies to them, they are not required to follow that law,
and that this Court is powerless in the face of that refusal." [Pl. Opp. 2 (emphasis added).]
First, Defendants have never conceded the Act applies to "them". Representative
Koch and the House Republican Caucus both maintain that neither is a "public agency"
subject to the Act. [Def. Memo. 13-16.] Second, Plaintiffs confuse two conceptually distinct issues by treating them as interrelated: whether the legislature is subject to the Act
(it is); and whether the legislature's alleged violation of the Act is subject to judicial review (it is not). Any claim alleging the legislature violated the Act is non-justiciable, as
our Supreme Court held in State ex reZ. Masariu v. Marion Superior Ct. No.1, 621 N.E.2d
1097 (Ind. 1993). "If the legislature wishes to authorize sanctions against itself upon a
claim by press or public alleging improper legislative secrecy, such sanctions would
have to be determined and imposed solely by the legislative branch itself, without recourse to the courts." Id. at 1098.
2
Plaintiffs also point to the legislature's unsuccessful effort in 2001 to exempt itself
from the Act as somehow undermining Defendants' non-justiciability argument. [See PI.
Opp. 14.] But as stated above, whether the legislature is subject to the Act is a separate
inquiry from whether courts may entertain purported violations of it. I
B.
Plaintiffs' claims are not justiciable under settled Indiana doctrine.
Contrary to Plaintiffs' characterization, Defendants' non-justiciability argument
is not "extraordinary", nor does it reflect an "expansive" view of our Supreme Court's
justiciability doctrine. [PI. Opp. 2.] Defendants' argument, rather, fits comfortably within the Court's settled jurisprudence on justiciability. Far from being "unsupported by
precedent" or "incorrect as a matter of law" [PI. Opp. 3], Defendants' argument is both
governed by and wholly consistent with the Court's precedent.
For the same reasons, Plaintiffs are not entitled to partial summary judgment. If (as Defendants contend) Plaintiffs' claims are non-justiciable, then the Court may not enter
any kind of a merits judgment. Its sole obligation is to dismiss the case, see Berry v.
Crawford, 990 N.E.2d 410, 422 (Ind. 2013) (directing trial court on remand to grant the
motion to dismiss), or face a Supreme Court writ prohibiting its continued exercise of
jurisdiction, see Masariu, 621 N.E.2d at 1098 (granting permanent writ of prohibition).
Moreover, summary judgment would be premature. Defendants have not made the
concession Plaintiffs allege in their summary-judgment papers: "In their memorandum
in support of their motions to dismiss under TR 12(B)(1) and (6), Defendants for the
very first time admitted that they are subject to APRA." [PI. Mot. Partial SJ, 115 at 2 (emphasis added).] As discussed above, Defendants admit the legislature is subject to the
Act; they do not admit that Representative Koch and the House Republican Caucus are.
Indeed, one of the central grounds of Defendants' 12(B)(6) motion is that neither defendant is a "public agency" under the Act. Given the pendency of Defendants' motion
to dismiss, briefing on summary judgment should go forward only if the pending dismissal motion is denied.
1
3
In stark contrast, Plaintiffs cite cases that are all over the map, figuratively and
literally. Many of their cases are from other jurisdictions. None of the justiciability cases
Plaintiffs cite are public-records cases. For their part, Defendants. cited cases from two
state supreme courts-Indiana's and lowa's-holding specifically that claims seeking
legislative documents under a public-records statute are non-justiciable. See Masariu,
621 N.E.2d 1097; Des Moines Register and Tribune Co. v. Dwyer, 542 N.W.2d 491 (Iowa
1996).
Our Supreme Court's most recent, comprehensive analysis of the structural principles underlying Indiana's separation-of-powers doctrine occurred in Berry v. Crawford,
990 N.E.2d 410 (Ind. 2013), the legislative-fines case. There, the Court reversed a judgment entered in favor of aggrieved legislators who had sued under Indiana's Wage
Payment Statute after they were fined for depriving the House of a quorum by their unauthorized absence. Three different grounds referenced in Berry compel the conclusion
that Plaintiffs' claims here are non-justiciable. 2
The Court's extensive discussion in Berry of applicable justiciability principles reviewed Indiana's own case law as well as that of other state supreme courts. The Court
did not specifically mention Baker v. Carr, 369 U.s. 186 (1962), the United States Supreme
Court decision on which Plaintiffs rely, although our Court relied heavily on case law
from other states that do invoke Baker. Perhaps this reflects our Supreme Court's view
that sovereign states interpreting their own constitutions need not follow in lockstep the
U.s. Supreme Court's interpretation of the federal Constitution. Whether our Supreme
Court intends Baker v. Carr (explicitly or impliedly) to supply the rule of decision in justiciability cases in Indiana is irrelevant here, for Berry itself identifies multiple grounds
for assessing whether a claim is justiciable.
2
4
1.
Masariu, which was reaffirmed in Berry, holds that courts shall
not intervene in the internal functions of the legislature.
The first ground for determining that Plaintiffs' claims are not justiciable is the
Court's own 1993 decision in Masariu. Berry expressly reaffirms Masariu's holding. "For
courts to get involved in such a legislative function would amount to the type of' constitutionally impermissible judicial interference with the internal operations of the legislative branch' which we have rejected in the past." Berry, 990 N.E.2d at 414 (quoting Ma-
sariu, 621 N.E.2d at 1098). See also Berry, 990 N.E.2d at 421 ("How those [clerk's] duties
are performed, or any lack of performance of those duties, is an internal matter totally
controlled by the House leadership.") (quoting Masariu, 621 N.E.2d at 1098) (emphasis
added in Berry).
Masariu's significance is that it most closely resembles Plaintiffs' case. It, too, was
a public-records case in which our Supreme Court never reached the suit's merits because it found the claims to be non-justiciable. The Court framed the test for justiciability in terms of whether a judicial decree would "intermeddle" or "interfere" with the
"internal functions" or "internal operations" of a coordinate branch of government. Ma-
sariu, 621 N.E.2d at 1098. In Masariu, the plaintiffs alleged that House voting records are
public records available for inspection and copying under the Act. Although the House
clerk is a functionary who performs a ministerial role and is not a constitutional officeholder, the Court still found the claims to be non-justiciable. "[T]o the extent such enactments [the Public Records and Open Door Laws] empower the judicial branch to in5
quire into and interfere with the internal operations of the Indiana House of Representatives, said application transgresses the above separation of powers clause [Article 3,
§1] of our state constitution." Id.
Masariu's holding and rationale compel the conclusion that Plaintiffs' claims are
likewise not justiciable. Masariu held that a judicial decree seeking documents concerning how a non-legislator discharged her clerical functions was so intrusive of the internal
workings of the legislative branch as to violate separation-of-powers principles. It follows that these same principles preclude this Court from ordering the disclosure of
documents concerning how a legislator discharges his discretionary responsibility for
considering and devising legislation, including communications he may have had concerning proposed legislation. As Masariu held, the remedy for Defendants' alleged "improper legislative secrecy" does not lie in the courts.
Plaintiffs try without success to diminish Masariu's import and the subsequent
cases that rely on it. [See PI. Opp. 13-15.] They argue, for example, that "[g]ranting
Plaintiffs the relief they are seeking under [the Act] will not intrude upon the House's
internal proceedings." [Id. at 14.] But legislators do not discharge their duties in a bubble. Their communications with others pertaining to proposed legislation are an inherent part of the legislature's own operations. Legislating, after all, is the essence of what
legislators do. Under Masariu, how they discharge that function, and with whom they
communicate in discharging it, is their business and not the courts'.
6
Our Court of Appeals has already held the regulation of lobbyists-those who
seek to influence legislation-is an internal function of the General Assembly. Common
Cause, Inc. v. State, 691 N.E.2d 1358, 1361 (Ind. Ct. App. 1998). In rejecting Common
Cause's separation-of-powers claim, the Court noted that legislative bodies directly
regulate lobbyists as part of their legislative powers. Id. The Court drew an analogy to
the clearly delineated powers of the judiciary in regulating the legal profession. "Just as
'[i]t is the exclusive province of [the Supreme] Court to regulate legal activity', it is the
exclusive province of the legislature to regulate the activity of lobbyists." Id. at 1362.
Plaintiffs also question Masariu's continuing validity "in light of the Supreme
Court's more recent and detailed pronouncement in Berry." [PI. Opp. 14.] As mentioned
previously, not only did Berry expressly reaffirm Masariu, 990 N.E.2d at 414,421, but the
disputed communications at issue here fall squarely within a "core legislative function",
and so are not susceptible to judicial review. Berry's examples of acts that might fall
within the purview of the judicial authority - House leadership disciplining members
for non-legislative action, or applying criminally punishable forms of legislative discipline-are distinct from correspondence related directly to legislation. See Berry, 990
N.E.2d at 421.
2.
Berry analyzes whether there has been a "textually demonstrable
constitutional commitment of the issue to the Legislature."
The second ground for determining that Plaintiffs' claims are non-justiciable under Berry v. Crawford is "whether there is a 'textually demonstrable constitutional commit7
ment of the issue' presented by Plaintiffs' complaint to a coordinate political depart-
ment." [PI. Opp. 4 (quoting Berry, 990 N.E.2d at 416) (emphasis Plaintiffs').] Plaintiffs
discuss this at length, but to no persuasive effect.
Under this ground, claims challenging the exercise of legislative authority are
non-justiciable "where a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limitation or qualification."
Berry, 990 N.E.2d at 421. Plaintiffs misapply this standard in several respects. As explained below, first they ignore one of the express constitutional provisions (Article 4,
§16) upon which Defendants relied in their opening brief. In addition, Plaintiffs misunderstand (and hence misapply) two other provisions on which Defendants relied (Article 4, §§10, 13).
a.
Article 4, §16
At the outset, Plaintiffs state incorrectly that Defendants' argument for nonjusticiability is premised on just "two sections of the Indiana Constitution, art. 4, §§ 10
and 13". [PI. Opp. 7 (citing Def. Memo. 6).] Defendants do rely on those two sections,
but they also rely on Article 4, §16, which confers plenary power in each legislative
chamber: "Each House shall have all powers, necessary for a branch of the Legislative
department of a free and independent State." As Berry instructs, it is axiomatic that our
Constitution vests all legislative power in the legislature, which consists of the Senate
and the House of Representatives. 990 N.E.2d at 418 (citing Ind. Const. art. 4, §1). Article
8
4, §16 takes that grant of plenary power a step further by establishing that each legislative chamber has all powers necessary to discharge its own legislative responsibilities.
Together, Sections 1 and 16 of Article 4 empower each House of the General Assembly
to fulfill its legislative duties as it sees fit, and they do so without qualification. This
"textually demonstrable constitutional commitment of the [legislative function] to the
Legislature" constitutes an express delegation "without any express constitutionallimitation or qualification." Berry, 990 N.E.2d at 416,422. Plaintiffs' claims are directed at
that legislative function and are, therefore, non-justiciable.
b.
Article 4, §10
Article 4, §10 empowers the legislature to "determine its rules of proceeding" .
Plaintiffs argue this provision authorizes the House merely "to regulate its legislative
proceedings occurring on the House floor" and "says nothing about the regulation of
individual legislators' communications from lobbyists or other matters that are ancillary
to lawmaking". [PI. Opp. 11.] There are at least two problems with Plaintiffs' argument.
First, Berry did not confine this provision to rules that regulate "proceedings occurring
on the House floor" but acknowledged it also authorizes rules that operate broadly "to
govern the internal operations of the House." 990 N.E.2d at 418. Second, legislators'
communications are not" ancillary to lawmaking" but essential to it. They are an indispensable part of the legislative process, whereby the elected representative hears from
and considers the views of those likely to be affected by proposed legislation. The
9
longstanding policy of treating these communications as confidential is a "rule of proceeding" that exempts this matter from judicial review, as the Iowa Supreme Court held
in Des Moines Register. "A senatorial policy governing these actions [the decision to keep
detailed phone records confidential] therefore clearly constitutes a 'rule of proceeding'."
542 N.W.2d at 501.
c.
Article 4, §13
Article 4, §13 establishes a presumption that legislative proceedings are to be
conducted publicly but confers in the legislature the exclusive power to determine
when" secrecy" may be warranted. "The doors of each House, and of Committees of the
Whole, shall be kept open, except in such cases, as, in the opinion of either House, may
require secrecy." Plaintiffs contend that this provision applies solely to "£loor proceedings". [PI. Opp. 9 (emphasis Plaintiffs')], though they cite no case adopting their view.
But even if Plaintiffs are correct, that would not bolster their argument here.
Plaintiffs' ultimate argument is that §13 is not a textually demonstrable constitutional commitment to the legislature of the power to conduct its affairs in private, so
their claims for legislators' "o££-the-£loor" communications remain fully justiciable. In
fact, however, Plaintiffs have things precisely backward. As explained previously, §§10
and 16 provide the legislature with all the power needed to keep such communications
out of the public domain. At most, the effect of §13 is that the legislature cannot conduct
floor business behind closed doors. Plaintiffs' view of §13 would not impair the legisla-
10
ture's ability to maintain secrecy concerning non-floor business, however, including a
legislator's communications with constituents, lobbyists, and other legislators.
3.
Berry mentions another factor-whether judicial review "would
express a lack of the respect due" the legislature.
Finally, the third ground referenced in Berry v. Crawford for concluding that
Plaintiffs' claims are non-justiciable is that judicial review "would express a lack of the
respect due" the legislature as a coordinate branch of government. 990 N.E.2d at 417
(quoting Birmingham-Jefferson Civic Center Auth. v. City of Birmingham, 912 So.2d 204,220,
221 (Ala. 2005) (in turn quoting Baker v. Carr)). Berry did not outline the precise contours
of this ground, but likely it is simply a restated version of the principle expressed in Ma-
sariu that" courts should not intermeddle with the internal functions" of the legislature.
621 N.E.2d at 1098. However our courts ultimately interpret and apply this principle,
there should be no doubt the relief Plaintiffs seek here-a decree compelling the disclosure of legislative communications-would be inappropriate for judicial consideration
because it would be at odds with the "respect due" the General Assembly.
C.
A finding that Plaintiffs' claims are not justiciable will not implicate the
Indiana Constitution's "Open Courts" provision.
Plaintiffs suggest, without support, that a ruling in favor of Defendants would
deny them a "remedy by due course of law", in violation of Article 1, §12, the opencourts provision of our state constitution. [PI. Opp. 6.] Even Plaintiffs acknowledge,
however, there "is no right under the open courts clause to any particular cause of ac-
11
tion; and the legislature may create, modify, or abolish a particular cause of action" consistent with this provision. [Id.] Both of these things are true, and so is a third: a court
does not violate the open-courts clause by declining to hear a non-justiciable claim.
Plaintiffs cite no case holding otherwise, and for good reason. Were there anything to
Plaintiffs' argument, both Masariu and Berry would have been decided differently.
D.
Plaintiffs' "public policy" arguments ignore the integral role of constituents' and lobbyists' communications in the legislative process.
1.
Plaintiffs draw an illusory distinction between lobbyists and
constituents.
Plaintiffs discount the value of keeping legislative communications private by
contending the "lobbyists" who may have communicated with Representative Koch are
not" constituents" but "paid representatives of monied corporate interests". [PI. Opp.
16.] The problem with Plaintiffs' jab is three-fold.
First, lobbyists fulfill a vital role in our participatory democracy. Lobbyists represent myriad groups whose members come from every walk of life. Among the many
registered lobbying groups at the Statehouse representing their members' interests are
Indiana Chamber of Commerce, Indiana Teamsters Joint Council, Indiana State Teachers Association, Indiana Farm Bureau, Indiana State Medical Association, Indiana Judges Association, Hoosier State Press Association, Indiana Catholic Conference, Planned
Parenthood Advocates, Mental Health Association of Indiana, Campaign for TobaccoFree Kids, Indiana Association of Cities and Towns and, yes, Indiana Energy Associa-
12
tion, along with would-be Plaintiffs Common Cause of Indiana and Citizens Action Coalition of Indiana. [Indiana Lobby Registration Commission, public database, available
at https://secure.in.gov/apps/ilrc/lobbyist/#/public, last visited Aug. 3, 2015.] Members
of these organizations have a First Amendment right to collaborate with others of like
mind to petition their government for a redress of grievances. Exponentially more
Hoosiers participate in the legislative process through lobbying groups than interact directly with their elected representatives.
Second, Plaintiffs offer no basis for distinguishing between legislator communications with constituents versus lobbyists. To the extent Plaintiffs believe that only lobbyists' communications with legislators are deserving of privacy or confidential treatment, they posit the dangerous principle that the disclosure of the communications depends on the identity of the speaker.
Third, our Court of Appeals has already held that determining the terms of engagement with lobbyists is a legislative function. Common Cause, 691 N.E.2d at 1362. Rejecting claims that the General Assembly violated separation of powers in setting up the
Indiana Lobby Registration Commission, the Court held that the regulation of lobbyists
is an internal legislative function and within the "exclusive province" of the legislature.
Id. at 1361-62.
13
2.
Plaintiffs ignore the privacy rights of constituents and the
chilling effect that disclosing their communications would have
on the legislature's information-gathering process.
To the extent Plaintiffs believe all legislator communications should be an open
book, they ignore compelling public-policy reasons for avoiding such a rule. Subjecting
legislative correspondence to public dissemination will likely dissuade the correspondent-and especially the private citizen-from expressing his views, or at least from doing so through a medium of communication subject to a public-records disclosure (e.g.,
letters, e-mails, voicemails-the very media most likely to be used by the average citizen).
In the Des Moines Register case, the Iowa Supreme Court held that a newspaper's
request for the state senate's detailed phone records was not justiciable. 542 N.W.2d at
503. The records contained only metadata of legislator calls-identifying the charges for
a particular phone, whom the phone is assigned to, the phone number called or the
number from which the call was placed, the date and time of the call, and the call's duration - and not the substance of any communications. Still, the Court found the claims
for disclosure of these limited records to be non-justiciable as within the senate's constitutionally granted power to determine its own rules. Id. The Court found a "textually
demonstrable constitutional commitment of the issue to the senate" which neither the
judicial nor executive branch could interfere with or contradict. Id.
14
Two aspects of the Iowa Court's decision are relevant here. First, the Court determined that communications with constituents and the public at large are "integral"
to the legislative process. "Public communication with senators is an integral p~rt of the
senate's performance of its constitutionally granted authority to enact laws." Id. at 499.
The Court continued:
Part of the procedure of the senate as a whole is to communicate on matters of legislation with the public. The phone conversations at the heart of
the controversy before us constitute actions taken by the senate as it proceeds in the exercise of its power, in the transaction of its business, and in
the performance of duties conferred upon it by the constitution.
Id.
Second, the Court accepted the senate's view that requiring the dissemination of
these phone records would have a chilling effect on the public's willingness to communicate with legislators and would interfere with the senate's ability to conduct business.
The Iowa Senate has determined that a wholesale disclosure of its itemized call detail telephone records would be harmful to the public and to
the senate's ability to carry out its responsibilities. Implicit in the senate's
decision is a citizen's right to contact a legislator in person, by mail, or by
telephone without any fear or suspicion that doing so would subject the
citizen to inquiries from the press or anyone else regarding the nature of
the conversation.
Id. at 501.
These same concerns apply with particular force here. Plaintiffs are seeking not
mere metadata but Representative Koch's substantive communications. One of the
15
troubling implications of Plaintiffs' argument is that citizens who express their private
thoughts and opinions in seeming confidence to their elected representatives could find
their names and their views disclosed to the public.
The General Assembly's longstanding practice of withholding legislator communications from public-records disclosure is based in part on the belief that both the
quantity and quality of citizen communications with legislators increase when they are
kept out of the public domain. Plaintiffs' contrary rule would have no limiting principle. It would subject not just energy-lobby communications to public disclosure but
those of, say, a sexual-abuse victim who writes in to express her views of proposed victims-rights legislation or those of a still-in-the-closet gay citizen who wishes to share his
views on whether to add explicit civil-rights protections to the Indiana Code based on
sexual orientation and gender identity. It is not far-fetched to believe that these hypothetical citizens would never share their views on these important public-policy questions if their communications were subject to public disclosure. The legislature takes seriously the responsibility for safeguarding such communications between representatives and represented.
Plaintiffs claim that Defendants' reference to a long-standing General Assembly
practice of treating correspondence as confidential may not be considered in ruling on
the 12(B)(1) motion because it is unsupported by evidence. [PI. Opp. 12.] But Plaintiffs'
own complaint includes three exhibits (two responses to Energy and Policy Institute's
16
records requests and a letter to the Public Access Counselor) in which the chief counsel
of the House Republican Caucus recites "our House tradition to treat all correspondence as confidentiaL" [Complaint, Exhibit B. See also id., Exhibits D, E.] Thus, Plaintiffs'
own exhibits support the existence of the General Assembly's practice of treating correspondence on legislative matters as confidential.
In addition, Defendants are attaching to this memorandum a March 22, 2001 letter from the General Assembly's attorney James A. Strain. Representing both political
parties in both legislative chambers, Mr. Strain explained one of the reasons underlying
the General Assembly's practice of treating constituent correspondence as confidential.
Many citizens choose to petition their elected representatives privately,
using the mail, the telephone or email. If they knew, or even thought there
was a chance, that their communications, whether in the form of letters,
voicemails or emails, would become "public records" and possibly appear
in the media, it would have a chilling effect on their willingness to express
themselves to our clients and severely inhibit the citizens' right to petition
their government for redress of grievances.
[Strain Letter, at 1 (attached at Tab A).]
For these reasons, the Court should hold that Plaintiffs' claims are not justiciable
and grant Defendants' 12(B)(1) motion to dismiss.
II.
Plaintiffs have not stated claims against Defendants upon which relief can be
granted.
A.
Citizens Action Coalition and Common Cause lack standing.
Plaintiffs Citizens Action Coalition and Common Cause try to remedy their manifest lack of standing by submitting affidavits attesting to their interest in obtaining'
17
public records. Plaintiffs' argument is based on the mistaken premise that a publicrecords plaintiff need not actually request and be denied documents before filing suit.
[PI. Opp. 21.] Plaintiffs thus ignore that Section 9(e) of the Act confers standing to file
suit in "[a] person who has been denied the right to inspect or copy a public record by a
public agency". I.e. §5-14-3-9(e). Yet Plaintiffs read the Act as if it said "any person who
claims to have an interest in seeing public records disclosed may file an action." Plaintiffs' strained interpretation finds no precedent in Indiana case law. Under Plaintiffs'
theory, Energy and Policy Institute need not be a plaintiff here. According to Plaintiffs,
any person could file suit based on another person's request under the Act, with or
without involvement of the person "who has been denied the right to inspect and copy
records by a public agency."
I.e. §5-14-3-9(e).
Defendants' interpretation is based on a common-sense, plain reading of the
statute. Section 9 explains what constitutes a "denial of disclosure." If a request is made
in person or by telephone, a denial of disclosure occurs when the public agency verbally
refuses to permit inspection or 24 hours has passed. I.e. §5-14-3-9(b). If the request is
made in writing, the public agency shall issue the denial in writing, or a denial occurs
automatically after seven days. Id. §5-14-3-9(c). Reading Section 9 in its entirety establishes that subsection 9(e)'s subsequent reference to "[a] person who has been denied
the right to inspect or copy a public record" refers to the person that filed the request
and received the denial, as laid out in subsections 9(b) to 9(d).
18
That this interpretation is correct is made even clearer by the last sentence of subsection 9(e), which states that the person denied the right to inspect the records "need
not allege or prove any special damage different from that suffered by the public at
large." I.C §5-14-3-9(e). This language protects the right of the person who sought and
was denied public records to file suit without requiring further injury beyond the fact of
the denial. This language also makes a clear distinction between (i) the person who was
denied the right to inspect and copy, and (ii) the public at large. Citizens Action Coalition and Common Cause are much more like the latter than the former.
B.
Representative Koch and the Caucus are not public agencies.
1.
Representative Koch is not a public agency.
In response to Defendants' argument that Representative Koch is not a public
agency under the Act, Plaintiffs reply only with case law related to Section 1983 of Title
42 of the United States Code. [PI. Opp. 18, n.5.] In determining whether an official is excluded from the statutory definition of a "person" under §1983, a suit is considered to
be filed against the office - in other words, in the defendant's" official" rather than individual capacity-when an individual is named in a §1983 action. Bayh v. Sonnenburg,
573 N.E.2d 398, 402-03 (Ind. 1991). The other case Plaintiffs cite in support of their position also dealt with a §1983 claim, finding that a county juvenile court is not a "person"
for §1983 purposes. Lake County Juvenile Court v. Swanson, 671 N.E.2d 429 (Ind. Ct. App.
1996). But the §1983 exemption for state entities and state officials, such as then-
19
Governor Bayh and a county court, does not affect the plain statutory definition of
"public agency" in the Act. The Act does not authorize suit against a "person" (or official), but only against a "public agency", I.C §5-14-3-9(e), the definition of which is narrower than that of "persons", id. §§5-14-3-2(1), 2(n).
Plaintiffs also claim that Defendants' citation to State Bd. of Accounts v. Indiana
University Foundation, 647 N.E.2d 342 (Ind. Ct. App. 1995) is "inapposite". [PI. Opp. 18
n.6.] But unlike Plaintiffs' reliance on §1983 cases, Defendants rely on case law directly
interpreting the Act itself. The term "public agency" has several definitions. 647 N.E.2d
at 354. "Person" is not one of them. I.C §§5-14-3-2(l), 2(n). Plaintiffs identify no case law
holding a natural person is a public agency under the Act.
2.
The Caucus is not a public agency.
Finally, Plaintiffs argue that the Caucus is a public agency because it exercises
legislative power. However, Plaintiffs then state that the Caucus acts "[t]hrough its
leadership". [PI. Opp. 19.] In other words, even under Plaintiffs' argument, only the
members of the House conduct legislative actions. That individual members of the
House may be part of an informal, unincorporated association such as the Caucus is irrelevant to any legislative action taken by individual members. And as demonstrated,
individual members of the legislature are not public agencies subject to the publicrecords law.
20
Plaintiffs argue further that the Caucus has somehow been transformed into a
public agency simply because a Caucus attorney drafted the response to Plaintiffs' public-records request to Representative Koch. [Id. at 18.] Under this logic, for example, if a
public-records request were made to the Bureau of Motor Vehicles, and an attorney
within the Attorney General's office responded with a denial, the Office of the Attorney
General could be made a party to the public-records lawsuit, even though no records
were requested from the Attorney General, but only from the BMV. This defies common sense and the statutory language.
As explained above, natural persons are not included in the definition of public
agencies and, therefore, Representative Koch is not a proper party here. Further, the
Caucus of which he is part has no official capacity and does not exercise legislative
power and, therefore, also is not a public agency. Finally, because no records were requested from the Caucus, it could not have violated the public-records law.
For these reasons, the Court should also conclude that Plaintiffs fail to a state
claim against Defendants on which judicial relief can be granted and, thus, grant Defendants' 12(B)(6) motion.
21
Conclusion
For all of these reasons, and those set forth in Defendants' opening brief, the
Court should dismiss with prejudice Plaintiffs' claims as non-justiciable under Rule
12(B)(1). The claims relate to legislator communications and thus implicate a core legis-
lative function of gathering information concerning proposed legislation. Alternatively,
Plaintiffs' claims should be dismissed with prejudice under Rule 12(B)(6) because (i)
Plaintiffs Citizens Action Coalition and Common Cause lack standing under the Act; (ii)
Defendants, Eric Koch and the Caucus, are not "public agencies"; and (iii) the Caucus is
not an entity from which any Plaintiff sought public records.
One Indiana Square, Suite 3500
Indianapolis, Indiana 46204-2023
(317) 713-3500 (Phone)
(317) 713-3699 (Fax)
gslaughter@taftlaw.com
rmenyhart@taftlaw.com
Counsel of Record for Defendants
ERIC KOCH and INDIANA HOUSE
REPUBLICAN CAUCUS
22
Certificate of Service
I certify that on August 4, 2015, I caused a true copy of the foregoing to be served
via first-class United States Mail, postage prepaid, and bye-mail upon the following
counsel of record:
William R. Groth, Esq.
David T. Vlink, Esq.
FILLENWARTH DENNERLINE GROTH & TOWE, LLP
429 East Vermont Street, Suite 200
Indianapolis, Indiana 46202
13013307
23
James A. Strain
(317) 630-5910
SOMMER & BARNARD
ATIORNEYS AT LAW' PC
please reply to 'Bank One Tower address
March 22, 2001
Via Hand Delivery and Facsimile
Ms. Michele McNeil Salida
The Indianapolis Star
307 North Pennsylvania Street
P.O. Box 145
Indianapolis, Indiana 46206-0145
Dear Ms. Salida:
Th:is letter is in response to your letters date<;i March 14,2001, to Senators Robert Garton,
Joseph Harrison, 'Richard Young, and Earline Rogers, and Representatives John Gregg, Mark
Kruzan, Brian Bosma, Michael Smith and Jeffrey Thompson, requesting two weeks of emails
sent or received from either their "state" email accounts or, ifused for State business, their
"personal" email accounts. In your letters, you cite Indiana's Access to Public Records Act (IC
5-14-3-1, (sic) (the "Act") as the basis for your requests. Because your requests raise important
questions under both the State and Federal Constitutions, and because these legisli\tors are
treating your requests very seriousiy, they have engaged our finn to advise and represent them.
For..the reasons briefly outlined below, they cannot honor your requests. The reasons in this'
letter are not intended to be, and are not, exhaustive.
I"::
The requested emailS are not "public records" of a "public agency" as those terms are
used in the Act. Accordingly. the Act simply does not apply.
The overwhelming majority of em ails that you have requested are from constituents.
Both the Bill of Rights of the Indiana Constitution and the First Amendment to the United States
Constitution guarantee to every citizen ~e rightto "petition the [General Assembly] for redress
of grievances." Many citizens choose to petition their elected representatives privately, using the
mail, the telepl:0ne or ema,il. If they knew, or even thought there was a 'chance, that their
communications, whether in the form of letters I voicemails or emails, would become "public
records" and possiQly appear in the media, it would have a chilling effect on their willingness to
'
express themselves to our clients aJ;lP severely inhibitthe citizens' right to petition their
, government for redress of grievances. Our clients are simply unwilling to compromise the
Constitutional rights of Hoosiers. They are also unwilling to compromise the Constitutional
rights of current and future Senators and Representatives to engage in unfettered speech and
debate.
4000 Bank One Tower' 11 I Monument Circle' Indianapolis, Indiana 46204·5140 ·Telephone 317/630·4000 . Fax 317n36-9802
8900 Kevstone Crosslng· Sulte 1150 ·lnruanapoUs. Indiana 46240-2134· Telephone 3[7/630-4000· Fax 317/844.4780
..," ..
Ms. Michele McNeil Salida
The Indianapolis Star
Marc~ 22, 2001
Page 2
,Given the volume of contacts that "legislators have on a daily basis, which through your
requests you have implicitly assumed would be subject to the Act and its retention requirements,
neither the State House nor the budget is big enough to store and pay for the retention of all of
'the evidences of those contacts, whether in the form of notes, mail, voicemails and emalls, that
would be necessary to comply with requests such as yours. Indiana's Access to Public Records
statute does not obligate legislators to produce any contact they have, regardless of the fonn that,
t~ takes.
For these reasons and others, we have advised our clients that they not comply with your
requests, and they have authorized us to send:you this response ..
JAS/aw
SOMMER & BARNARD
"TTOFlNEYS AT LAW' PC