Pence email decision casts shadow on plaintiffs’ rights


A ruling in Marion County Superior Court 1 concerning a case involving then-Gov. Mike Pence’s emails casts a shadow on Hoosiers’ right to receive reasonable attorney fees and court costs when they have prevailed in a public access lawsuit.

Citizens Action Coalition of Indiana and Jennifer Washburn filed a lawsuit against Gov. Eric Holcomb. In December of 2016, Washburn attempted to obtain copies of emails involving Gov. Pence’s office, president-elect Donald Trump and his campaign, and Carrier that were sent during a two-week period of November of 2016.

A trial court judge’s recasting of a decision into a “discovery” dispute shouldn’t stand as a trump card over the legislature’s intent that a winning plaintiff … shouldn’t be stuck with the financial burden of making government responsive to its citizens.

President Trump had become involved in Carrier’s then announced decision to close its Indianapolis-area manufacturing plant. Pence had withdrawn from the race for Indiana Governor after Trump named him his choice for Vice-President. Eric Holcomb became Governor in January of 2017.

After three months of inactivity, Gov. Holcomb’s office demanded “clarification” on her request based on a lack of “reasonable particularity” as to what was required. After receiving an opinion from the Public Access Counselor, Washburn and CAC filed the lawsuit. It was assigned to Marion County Superior Court 1 Judge Heather Welch.

I have no real quarrel with Judge Welch’s ruling, which required the governor’s office to make available emails responsive to two of Washburn’s requests and encouraged both sides to work on better defining what records would be responsive to her other two requests. Welch also found that the governor’s office acted with “undue delay” by failing over three months to provide Washburn with any update on the progress in producing the requested records.

My concern is with her decision not to award Washburn and the CAC any reasonable attorney fees or court costs in the case. “Trial courts are accorded broad discretion in reviewing discovery enforcement motions. Thus, rather than impose monetary sanctions such as attorneys fees or direct Defendant to answer as written, the Court will treat this as it would a discovery dispute,” Judge Welch wrote.

HSPA successfully lobbied for the current language concerning fees back around 1999. Prior to the change, discretion was left to judges on the awarding of attorney fees and court costs and rarely occurred. Often, judges didn’t want to hit the county commissioner/ mayor/etc. who might be a friend or political ally with the bill. I recall working with then Speaker of the House John Gregg’s right arm – Majority Leader Mark Kruzan of Bloomington on the current standard.

The language was based on the concept that there is no government agency that a citizen can turn for enforcement of the state’s access laws, short of filing a lawsuit. The attorney general doesn’t act. Prosecutors don’t act.

It falls upon citizens to demand compliance with the Open Door Law or Access to Public Records Act and the mechanism when government officials are resistant, even ignoring the PAC opinions, is a lawsuit. With the burden on the public, the legislature agreed that if forced to go to court and with a “substantial” victory, a judge “shall” award reasonable attorney fees, court costs and reasonable costs of litigation.

This was tied to the requirement that citizens first consult the PAC, whose opinions should end the need for litigation except for situations where judicial interpretation of the law is necessary or bad actors are ignoring the law. The legislature wanted to end needless litigation, but also encourage citizens to pursue their rights under the Open Door Law and Access to Public Records Act.

A trial court judge’s recasting of a decision into a “discovery” dispute shouldn’t stand as a trump card over the legislature’s intent that a winning plaintiff, who went to court as a last resort after trying to resolve the issue through the PAC, shouldn’t be stuck with the financial burden of making government responsive to its citizens.