By Steve Key
Hoosier State Press Association

“Bad facts make bad law” goes the common legal maxim.

The repercussions of that tenet involve all three branches of state government lately.

Let’s start with an example from the legislative and judicial branches: Rep. Eric Koch (R-Bedford) and the Indiana House Republican Caucus faced a lawsuit from the Citizens Action Coalition of Indiana.

The coalition sought copies of correspondence between Koch and several businesses. The Citizens Action Coalition and Energy and Policy Institute are concerned about whether the companies unduly influenced a bill concerning solar energy.

HSPA Foundation decided to not to join Citizens Action Coalition of Indiana v. Koch – not because HSPA doesn’t agree with the cause, but because of a prior court precedent.

In 1993 the Indiana Supreme Court – in State ex. rel. Masariu v. Marion Superior Court No. 1 – invoked the separation of powers clause of the Indiana Constitution in refusing to enforce the state’s Access to Public Records Act against the state legislature.

The Indianapolis Star, which filed the lawsuit, had a good case. The newspaper sought copies of House of Representatives votes on defeated Republican-proposed amendments to a budget crafted by Democrats, who were the majority party at the time.

Indiana’s Constitution requires the recording of votes. Betty Masariu was the Clerk of House, responsible for keeping the House’s records.

While ruling that the legislature was subject to the Access to Public Records Act, the court declined to require the General Assembly to comply with it.

The 3-2 ruling written by then-Justice Richard Givan said, “Although it is the duty of the courts to determine the constitutionality of statutory law, this court has held repeatedly that courts should not intermeddle with the internal functions of either the executive or legislative branches of government.

“ … 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.”

Under the separation of powers argument, the state high court was unwilling to rule that the legislature should make records available on constitutionally required votes.

That left citizens with only public pressure as a means to convince legislative leadership that records of the House and Senate should be disclosed for public inspection and copying.

With that background, the HSPA Foundation supported Citizens Action Coalition in spirit only in its lawsuit.

I told coalition representatives that if the judiciary was unwilling to rule that the legislature should release roll call votes required by the Constitution, I didn’t see how a judge would make a different decision about legislators’ emails or letters to private companies, as requested in Citizens Action Coalition of Indiana v. Koch.

Unfortunately, the April 19 ruling from the Indiana Supreme Court was what I expected. Justice Steven H. David’s decision cited the Masariu case as precedent.

“We determine that a similar type of inquiry and interference with the internal operations of the legislative branch is being requested in the present case,” he wrote.

The ruling did find the Access to Public Records Act does apply to the state legislature but said defining “work product” for the legislature would interfere with its internal operations.

What I didn’t foresee was how the Citizens Action Coalition lawsuit would embolden the executive branch to attempt the same argument to exclude itself from judicial review when the governor’s office denies record requests.

That’s what occurred less than a month after the Supreme Court’s ruling.

Gov. Mike Pence’s legal counsel, fighting a records-request suit for communication regarding Pence’s immigration lawsuit, filed a submission arguing that a trial court should rule the case “non-justicable” under the same separation of powers argument the Supreme Court declared in Koch.

“Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should also not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material,” argued Pence’s attorney, Joseph Chapelle of Barnes & Thornburg.

Pence has a reputation of supporting the public’s right to know.

He sponsored a federal reporter’s shield law while a member of Congress.

In the last two Indiana General Assembly sessions, he vetoed legislation that would have created a search fee on voluminous records requests under the Access to Public Records Act and another bill that would have decreased the public’s right to information on crime reported to private university police departments compared to all other law enforcement agencies.

If a governor with that background has decided to try and disengage his office from judicial review of Access to Public Records Act compliance, you can imagine how many other public officials will attempt the same separation of powers argument.

That’s why I believe if the judiciary accepts the governor’s argument, it will eviscerate the Access to Public Records Act, hamstringing the public’s ability to hold government officials accountable for their actions.

Steve Key is executive director and general counsel for the Hoosier State Press Association.

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