Indiana Court of Appeals Judges Nancy Vaidik and Edward Najam strongly challenged the argument that Gov. Mike Pence’s staff decisions on denial of records requests could not be reviewed by the judiciary under the doctrine of separation of powers.

The two judges, along with Judge John Baker, heard oral arguments in Groth v. Pence on Nov. 20. Indianapolis attorney Bill Groth had been denied an attachment to an email from the Texas Attorney General laying out strategies concerning a challenge to President Barack Obama’s executive order concerning the families of illegal immigrants.

Pence’s attorney in the appeal, Joseph Chapelle of Barnes & Thornburg, added the separation of powers argument following the Indiana Supreme Court’s decision not to act in the Citizens Action Coalition (CAC) lawsuit v. Rep. Eric Koch lawsuit. In that lawsuit, the Court found that the separation of powers between the three branches of government precluded it from ruling on the internal functions of the Indiana General Assembly.

CAC requested, under the Access to Public Records Act, copies of certain emails sent to Koch, R-Bedford. The request was denied by the legislature using the “work product” of legislators exception. Since work product wasn’t defined, the Court decided not to intervene in the General Assembly’s denial.

“I suspect the decision to add the separation of powers argument wasn’t one that was run past Gov. Pence,” said Steve Key, executive director and general counsel for the Hoosier State Press Association.

“It runs contrary to Pence’s track record as a proponent of a federal shield law while in Congress and his vetoes in the last two session of bills he viewed as going against the concept of government transparency.”

Under Najam’s questioning, Chapelle limited the separation of powers claim to the “personal papers” of the governor and his staff, not the entire executive branch of government. Najam also put Chapelle in the position of admitting there is no exception in APRA for the governor similar to the exceptions for legislators and their staff.

While Key believes the appellate panel won’t find a separation of powers issue in this case, he’s not confident that Groth, represented by Gregory Bowes of Indianapolis, will prevail in the effort to get a copy of the Texas email attachment.

The judges may find the document protected from disclosure under the attorney work-product exception recognized by APRA. Key said the decision will hinge on whether there was an attorney-client relationship established before the email was sent.

Bowes argued that there was no legal relationship and that the sharing of the strategic document was part of a solicitation designed to convince the governor to join in the lawsuit after Indiana Attorney General Greg Zoeller had declined.

Chapelle argued there was the relationship, which was initiated at a meeting held during a governors’ conference. Indiana did join as a plaintiff in the case, along with 20 other states with Republican governors.

Judge Vaidik asked, “Is there a relationship? And Najam quickly followed with: “Or was it a unilateral solicitation?”

Key said the answer probably will decide the case.

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