Arguments continue over claims that Indiana attorney general violated state law

A prior ruling that Indiana Attorney General Todd Rokita violated a state confidentiality law was challenged in a hearing on Tuesday.

A Marion County judge denied a preliminary injunction for Dr. Caitlin Bernard to block Rokita from information about her patients and their medical records. The request stems from his investigation of Bernard providing an abortion for a 10-year-old rape victim from Ohio.

The preliminary injunction was denied on the grounds that the investigation now fell to the state’s medical board following a filed complaint.

But the judge also ruled that Rokita had violated state law by improperly disclosing information about the investigation.

What happened at the hearing? How does it affect this investigation? 

Rokita is asking the court to “reconsider and correct the error” in the court’s ruling that he violated a state law.

His lawyers say if this conclusion is revised to say that he did not break state law, “the attorney general’s office would be fine with the dismissal of this case.”

Chris Bartolomucci is a partner at Washington, D.C., law firm Shaerr Jaffe representing Rokita.

Speaking on Rokita’s behalf, Bartolomucci said the voluntary dismissal of this case without changing this ruling is improper.

“Voluntary dismissal prevents the attorney general and the Office of the Attorney General from contesting the conclusion of the law, which we think is erroneous,” he said.

Bartolomucci said this “error” harms Rokita in a few ways.

“Number one, the plaintiff (Bernard) is making offensive use of that conclusion in a separate proceeding,” he said.

Bartolomucci is referring to a separate proceeding in which the Indiana Medical Licensing Board will hear a complaint against Bernard. Bartolomucci said the ruling “could be considered persuasive” in that proceeding.

Finally, he said it affects the public’s perception of Rokita.

“The attorney general took an oath to uphold a law, and we believe he did so here,” he said. “This certainly undermines public confidence in the attorney general’s ability to follow the law.”

Attorney Paul Rodney presented remarks on behalf of Bernard and her medical partner, Dr. Amy Caldwell.

“The attorney general wants to reopen the case to relitigate a single issue, even though the attorney general prevailed in the case,” Rodney said.

He said the justice system is not set up for a “line edit,” and should not permit Rokita to go through this entire issue to change this one ruling.

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Another argument from Rokita’s lawyers was that the judge’s ruling on Rokita was “in dicta.”

In law, this refers to “a comment by a judge that is not necessary to resolve a case but can still be cited as persuasive authority in future litigation.”

Rokita’s lawyers argued that Bernard’s use of the evidence was prejudiced against the attorney general.

However, Bernard’s lawyers disagree.

“It’s difficult to see how evidence that is known as dicta will prejudice the attorney general,” he said.

In a spoken statement after the hearing, the attorney general’s press secretary, Kelly Stevenson, said the ruling could be used unfavorably against Rokita in the medical board’s hearing.

“Today’s proceeding is all about ensuring that the board can make its decision free from an unwarranted conclusion previously made by this court,” she said.

There is not a clear timeline on when a decision following this hearing will be made.

Where did this start?

The ruling followed a preliminary injunction filed by Dr. Caitlin Bernard, who performed an abortion on a 10-year-old rape victim. Bernard garnered public attention for providing this abortion following a story from the Indianapolis Star.

After Bernard publicly acknowledged providing the abortion, Rokita threatened investigations into it and accused Bernard of not following proper protocols or state law in reporting the abortion.

Rokita then went on TV to publicly accuse Bernard of breaking the law without any evidence.

Followed by this, Bernard’s attorney filed a tort claim notice – which is required by state law before filing a defamation suit – and sent a cease-and-desist letter to Rokita, ultimately referring to Rokita’s statements about Bernard as “false and misleading.” Rokita has since pressed on in investigations of Bernard’s care, and said it is based on consumer complaints. 

Bernard filed the preliminary injunction with her medical partner, Dr. Amy Caldwell. The injunction was intended to prevent Rokita from accessing her patient’s medical records as part of his investigation.

While the Dec. 2 ruling by Marion County Superior Court Judge Heather Welch denied a preliminary injunction and allowed Rokita’s investigation to proceed, it did rule that Rokita broke confidentiality in the attorney general office’s investigation of Bernard.

Since the ruling, Bernard and Caldwell moved to voluntarily dismiss the lawsuit – which would uphold the judge’s conclusion that Rokita breached confidentiality in the investigation.

Violet is our daily news reporter. Contact her at vcomberwilen@wfyi.org or follow her on Twitter at @ComberWilen.