3m" the , ‘ Zimwna $uprem2 @nurt CLERK , Supreme Court Court of Appeals f “hand Tax Court lndiana ’a = f A. Citizens Action Coalition Common Of Indiana; Cause Indiana; Energy Supreme Court Case N0. And 49SOO-1510-PL-00607 Policy Institute, Appeuant(s)’ Case No. 49D14-1504-PL-012401 Trial Court v Indiana House Republican Caucus; Eric Koch, Appellee(s). Order Appellant’s Petition for Rehearing Done at Indianapolis, Indiana, is hereby DENIED. on 7/12/2016 . 965m "a-M Loretta H. Rush Chief Justice of Indiana A11 Justices concur, except Rucker, Slaughter, J., J., Who votes to grant rehearing. not participating. __ FEED W a 'JUL 13 2015 éémdqg) CLE OF THE MARION CiRCUET COUKT x ..‘ “1% DocuSign Envelope ID: 0362325F-5A76-47C2—AE56-9BAEA49AB1CZ \. .4/ —\ ~ \. ,- \r _/ ATTORNEYS FOR APPELLEE ATTORNEYS FOR APPELLANT William R. Groth Geoffrey G. Slaughter David T. Vlink Russell C. FiIlenwarth Dennerline Groth & Towe, LLP Menyhan Taft Stettinius & Hollister LLP Indianapolis, Indiana Indianapolis, Indiana ATTORNEY FOR AMICUS CURIAE INDIANA COALITION FOR OPEN GOVERNMENT, INC. Kurt A. Webber Carmel, Indiana CLERK . Indiana '~I \ ‘xh and Tax Court 3111 (r' ,a‘” the $uprem2 Zinniana A Supreme Court Com of Appeals QEnurt N0. 49SOO—1510-PL—00607 CITIZENS ACTION COALITION 0F INDIANA, ENERGY AND POLICY INSTITUTE, AND COMMON CAUSE 0F INDIANA, Appellants (Plaintiflfi below), ERIC KOCH, AND INDLANA HOUSE REPUBLICAN CAUCUS, Appellees wefendanrs below). Appeal from the Marion Superior Court, No. 49D14-1504-PL—12401 The Honorable James B. Osborn, Judge On Direct Appeal Pursuant to Indiana Appellate Rule 56(A) April l9, 2016 FEL E B David, Justice. ' JUL 13 kwax. CLE Q; 2015 ggrfazéfl) 0P THE MARION ccRcun‘ cwrér ,1 DocuSign Envelope ID: 0362325F-5A76-4702-AE56-93AEA49AB1CZ . ‘ ‘i \ V = _ V ‘The case before us involves the delicate balance that must be maintained between the three branches of government. This Court has been called upon to determine whether its jurisdiction to resolve a dispute, or decline to express constitutional separation of powers. do so in order to Because the iss'ue faithfillly should exercise it uphold Indiana’s before the Court would require invasion into a core fimction of the legislative branch, this Court declines to exercise jurisdiction. Act applies affirm the Whether the work product exception within to the Indiana General trial the Indiana Assembly presents a non-justiciable its Access to Public Records question. Accordingly, we court’s order of dismissal. Facts and Procedural History The Energy and Policy requests to Indiana Institute, a’ pro-clean energy think tank, House Representative Eric Koch under Act (APRA), located at Indiana Code section 5-14-3-1, ct. made three separate the Indiana Access to Public Records seq. These requests sought cepies'of Représentative Koch’s, and his staffs, correspondence with various business organizations in relation to specific legislation. Each 0f these requests were denied by the Chief Céunsel of the Republican Caucus. The first request was denied on January 20, 2015, and both, the Chief Counsel explained that that i.t_ is “House tradition to treat all denigls, a formal complaint that Representative the second on February 9, 2015. In APRA does not apply to the Indiana General Assembly and correspondence as confidential.” (App. at 15, was filed with 19.) After these the Indiana Public Access Counselor, which alleged Koch and the Indiana House Republican Caucus had violated APRA. Public Access Counselor, Luke Britt, issued an advisory opinion concluding that APRA does apply to the Indiana General Assembly, but that the majority of what was requested would “legislative work product: exception pursuant to Ind. Code § 5-14-3-4(b)(14).” fall into (App. the at 21-22.) ' Afier the third request was denied, in Which the Chief Counsel also asserted that the requested records were discretionarily exempt from disclosure as legislative “work product,” another complaint was filed with the Public Access Counselor. The second advisory Opinion concluded DocuSTgn Envelbpe ID: 0362325F-5A76-47CZ-AE56—9§AEA49AB102 ,--« \ x .~ ._ VI that the third request had met specificity and reasonable work product “disclosure or denial of the On Institute, the the discretion of the legislature.” (App. at 29-30.) April 15, 2015, the Citizens Action Coalition of Indiana, the Energy and Policy and Common. Cause of Indiana Koch and Representative Plaintiffs is at particularity requirements, but the the Indiana (collectively, “P1aintiffs”) House Republican Caucus sought a declaratory judgment that Caucus and that APRA was filed a complaint against (collectively, “Defendants”). applicable to Representative Defendants had violated APRA by denying some or Koch and all ofPlaintiffs’ requests. sought an order for Defendants to disclose any records deemed by the court to be Plaintiffs also non-exempt. On June 26, 2015, Defendants filed a Rule 12(B) Motion to Dismiss for Lack of Justiciability, and Alternatively, for Failure to State a Claim. Defendants’ argued that dismissal was appropriate under Indiana Trial Rule 12(B)(1)I because Plaintiffs’ requests would “interfere with the internal workings of the legislature,” and should be found non-justiciable on those grounds. (App. at 33.) Alternatively, Defendants assert that Indiana Trial Rule 12(B)(6)2 would also provide three (3) grounds for dismissal: (1) suit; (2) neither Representative APRA; and (3) the made solely to Caucus is Koch nor 1 plaintiffs the Republican Caucus lacked standing to bring the is a “public agency” under not a proper party for the additional reason that the requests were Representative Koch. After a hearing on the motions, the Rule two of the trial 12(B)(1), concluding that the issue court granted Defendants’ motion to dismiss under was non—just'iciable. Indiana Trial Rule 12(B)(1) provides that a motion to dismiss The court did not address may be made for “[1]ack ofjurisdiction ever the subject matter.” 2 Indiana Trial Rule 12(B)(6) provides that a motion to dismiss .” relief can be granted upon which . . . may be made for “[flailure to state a claim DocuSign Envelope ID: 0362325F-5A76-47C2-AE56-98_AEA49AB1C2 r EM I ~ ‘~ ' \ ./"" \. Defendants’ other grounds for dismissal that were brought under Rule 12(B)(6). Plaintiffs filed a notice of appeal and then requested that this Court acceptjurisdiction pursuant to Indiana Appellate Rule 56(A).3 This Court granted the motion, accepting jurisdiction. ' We now hold that the case, which is distinguishable from a determination of whether a case general applicability that APRA does groups that the Indiana Supreme Court does have subj ect matter jurisdiction justiciable. As to thev ofAPRA to the legislature, we hold that this issue is justiciable and conclude apply to the Indiana General Assembly, necessarily including the members and make up the GeneralAssembly. However, under our controlling precedent in Statfl Masariu v. Marion Superior Court No. rel. is to hear 990 N.E.2d 410 (Ind. 2013), issue in this case are we 621 N.E.2d 1097 (Ind. 1993) and Berry v. Crawford, 1, hold that the specific question of whether the exempt fiom disclosure as legislative “work product” is APRA requests at non—justiciable. Standard of Review “Where jurisdiction 414 we (Ind. is one of law and 2013) review all the facts before the (citing trial we review court are not in dispute, thé question of subject matter the trial court’s ruling de nova.” Berry, GKN Co. V. Maoness, 744 N.E.2d 397, 401 conclusions of law de nova.” I. (Ind. 2001)). 990 N.E.2d “Likewise . at . . Q The Court has Subject Matter Jurisdiction Before addressing the specific issues raised in the current case, the distinction between jurisdiction and justiciability. Jurisdiction we find it prudent to restate is properly defined as “[a] 3 Indiana Appellate Rule 56(A) provides in pertinent part, “1n rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction oprpeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination.” ofthe Court DocuSign Envelope ID: 0362325F-5A7647CZ-AE56-98AEA49AB1CZ ' :- \ f ~ \ , . I‘d court’s power L xx/J to decide a case or issue a decree.” Alternatively, justiciability (9th ed. 2009)). suitable for adjudication court.” by a I_d_. dismissal for the lack of justiciability jurisdiction. is at is 1Q at (citing Black’s 417 Law Dictionary 927 “[t]hc quality or state of being appr0priate or 418 (citing Black’s Law separate and distinct Thus, Dictionary 943). fiom having subject matter Declining to hear a case on grounds of non—justiciability arises due to “prudential concerns over the appropriateness of a case for adjudication.” I_d. Article 7, Section 4 of the Indiana Constitution sets out the jurisdiction of the Indiana Supreme Court: “[t]he Supreme Court conditions as specified by rules .” . . . shall exercise appellate jurisdiction Under Indiana Appellate Rule 4_, have discretionary jurisdiction over cases in which it “[t]he that would' otherwise upon showing that the appeal involves that an emergency exists requiring a for the Court to exercise We further conclude that it was The Claim is its jurisdiction. under Indiana Trial Rule. 12(B)(6), of a motion to dismiss Government .” In the Which provides in party, accept this Court has subj ect error for the trial court Non-Justiciable a question ofjurisdiction, but whether Because (Ind. if it is sustainable dismissal of this claim. 2008) (explaining that on any it is prudent EM we agree that the core question is non-justiciable, we affirm the tn'al court’s McCardIe, 888 N.E.2d 171, 174 the . be within the jurisdiction of the Court oprpeaIs speedy determination.” Accordingly, As provided above, justiciability is not The Indiana . under Indiana Trial Rule 12(B)(1) for lack ofjurisdiction. II. v. . a substantial question of law of great public importance and matter jurisdiction over the present case. to dismiss this action 56(A)__, 56 Supreme Court may, upon verified motion of a relevant part, “[i]n rare cases, the an appeal Supreme Court shall grants Transfer 'under Rule present case, this Court granted transfer under Indiana Appellate Rule jurisdiction over under such terms and this Court “may affirm the grant theory”). Constitution explicitly provides for the separation of powers: “The powers of are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under DocuSign Env elope ID: 0362325F-5A76-4702-AE56-9EAEA49AB102 II/ ' \ \ ‘ ' I \J one of these departments, shall exercise Constitution expressly provided.” review [a] v any of the functions of another, except as in Article 3, § 1. this “[A]Ithough the courts have jurisdiction to case in the first instance, justiciability concerns stemming from Article Section 3, 1, caution couns to intervene only where doing so would not upset the balance of the separation of powers.” BE, 990 N.E.2d at 41 jurisdiction, justiciable. it 8. In other words, although this Court may, “for prudential reasons,” ultimately conclude Q may have subject matter that the issue presented is non- “[W]here a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limitation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution.” fl at 421. To maintain the separation of powers; this Court “should not intermeddle with the internal functions of either the Exgcutive or Legislative branches of Government.” Masariu, 621 N.E.2d at 1098. to This Court has previously found a separation of powers issue where legislation appears empower the judicial branch to “inquire into and interfere with the internal operations of the Indiana House of Representatives.” fl 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. APRA provides that “[a]ny person may inspect and copy the public records of any public agency during the regular business hours 0f the agency, except as provided in section 4 of chapter.” Ind. Assembly and Code its to the legislative § 5-14-3-3(a). this The threshold question is whether APRA applies to the General members. Because branch the authority we to find no constitutional provision that expressly reserves determine whether a statute will apply to the legislature, absent the General Assembly creating an exemption by statute or by rule, we find the question of applicability justiciable. Under Article 4, .the General Assembly is given the of this its State, and specifically under Section rules ofproceeding.” authority to draft and approve the laws 10, the legislature also has the authority to The General Assembly did not exercise from the reach of APRA by this authority “determine by excluding either statute or rule. In fact, the explicit exception within itself APRA for DocuSign Envelope ID: 0362325F-5A76-47C2.AE56-98AEA49AB1C2 v ' _.. -‘\ . ‘ the “work-product of individual contemplates APRA’s members and the partisan staffs of the general assembly” clearly application to the General Assembly and its members. Ind. Code 4(b)(14). Because the General Assembly contemplated APRA’s application to members, we sec no prudential reason this question itself and its should be avoided on grounds of We hold that APRA does apply to the General Assembly and its members. jus’ticiability. The determinative assertion that even if under why § 5-14-3- APRA. As issue in relation to justiciability arises instead under Defendants’ APRA is applicable, the requested stated above, Indiana Code documents are exempt from disclosure section 5-14-3-4(b) provides “the following public records shall be excepted fiom section 3 in. of this chapter pertinent part that at the discretion of l a public agency: . The work product of . assembly.” The term “work product” becomes whether, under the product” and order definition.4 This is individual members"and not defined within APRA nor by rule. Thus, the question principles ofjusticiability, this Court should the‘ legislature to 415 Em (citations omitted). be very careful not constitution . . . legislative “work disclose records in accordance with this comt-created that the purpose of Article separate department of government from any influence or control at define we will not do. This Court provided in N.E.2d paxtisan staff of the general to lessen to “rid each Section by the other department.” 990 1, In order to achieve this constitutional aim, this Court “should' invade the authority of the legislature. [its] was 3, caution in that particular.” Nor should anxiety to maintain the I_d. In Masariu, this Court also explained that if a legislative enactment “empower[s] the judicial branch to inquire into 4 We note _that this and interfere with the internal operations of the Indiana House of Court frequently engages in statutory intexpretatiOn that often requires defining terms statute. Here, however, where defining “work product” would impose upon a “core legislative fimction,” we decline to do so on grounds ofjusticiability. that are not defined within a DocuSign Envelope ID: 0362325F-5A76—47C2-AE56-9_BAEA49AB102 \ . x_a’ Representatives, said application transgresses the constitution.” 621 N.E.2d at 1098. . . . separation of powers clause of our state Here, to define for the legislature what constitutes product, and to then order disclosure of such documents, work 4/ ’\.. would indeed be an its own interference with the internal operations of the General Assembly. Under Article 4, Section 16 of the Indiana Constitution, “[e]ach House shall have all powers, necessary for a branch of the Legislative department of a free and independent State.” The General Assembly Article 4, Section 16. product those powers delegated to the legislative branch under itself carries out Consequently, only the General Assembly can properly define what work may be produced while engaging in work product falls squarely within a “core exercised its constitutional provides that legislative Ind. Code § its constitutionally provided duties. legislative function.” law—making authority when work product “shall be excepted 5-14-3—4(b) (emphasis added). . Moreover, the General Assembly crafted Section 4(b) of it . . at the discretion its APRA, which ofa public agency.” Since the General Assembly and constitute a “public agency,” the statute itself expressly reserves to the General discretion to disclose or not to disclose Thus, defining work product. We its members Assembly are not inclined to the make determinations that may interfere with the General Assembly’s exercise ofdiscretion under APRA. We hold that determining whether the documents requested by Plaintiffs are excepted under APRA as legislative work product presents a non-justiciable question. Conclusion The general members question. is justiciable,_ of whether APRA applies to the Indiana General and we hold that APRA does apply. However, Assembly and its we find non-justiciable the question of whether the documents requested in this case are exempt from disclosure under APRA’sr work product exception, Indiana Code section 5-14-3-4(b)(14). Indiana Trial Rule 12(B)(6), Rush, C.J., we affirm the trial court’s Dickson and Massa, J.J., concur. dismissal. Accordingly, under DocuSign Enve lope ID: 0362325F-5A76-4702-AE56-99AEA49AB1 CZ \ ;" \ \ iv Rucker, J., concurs in pm, I dissents in part with separate opinion. DocuSign Envelope ID: 0362325F-5A7647C2-AE56—QBAEA49AB1C2 ”‘\ > ~ / I‘V; » l \“I’ Rucker, J., Concurring in part and dissenting in part. agree with the maj ority that the Access to Public Records Act I As to the legislature. contemplated APRA’S its Inc., v. Erpenbach, 848 N.W.2d 862, 875 (Wis. Ct. App. 2014) Maclver (Reilly, J., this Inst. for concurring compelling state senator t0 disclose certain policy—related emails) (“If legislators d0 not in opinion law they created they can repeal it—but like the m members, we see n0 prudential reason why question should be avoided on grounds ofjusticiability.” Slip op. at 7; Pub. Policy, applicable is fully “Because the General Assembly the majority correctly points out: application t0 itself and (APRA) the trial court erred in granting Defendants’ until then they must abide by Rule 12(B)(1) motion to Thus it”). I agree dismiss for lack of'subject matter jurisdiction. But the majority takes a wrong turn in granting relief based on Rule 12(B)(6). In essence my colleagues have offered an advisory opinion and matter that deserves further record development. A motion On made a pre-emptive strike 0n a this issue Irespectfully dissent. t0 dismiss for failure to state a claim upon Which relief can be granted under Indiana Trial Rule 12(B)(6) tests the legal sufficiency of a complaint, not the facts supporting it— that is, whether the allegations in the complaint establish any would be plaintiff entitled to relief. The law 604, 605 (Ind. 2007). unless t0 any it is fl Charter settled that a set of circumstances under which a One Mortg. Corp. complaint v. Condra, 865 N.E.2d 602, may not be dismissed under Rule 12(B)(6) appears to a certainty on the face ofthe complaint that the complaining party is not entitled relief. King v. S.B., 748 N.E.2d 374, 377 0n a motion in a light to 837 N.E.2d 965, 966 (Ind. 2001); Martin v. (Ind. 2005); City Shea 463 N.E.2d 1092, 1093 dismiss for failure to state a claim, the most favorable King, 837 N.E.2d at 966. to the of New Haven trial court is v. (Ind. 1984). Reichhan, In ruling required to view the complaint nonmoving party and with every reasonable inference We review the trial court’s ruling de novo. in his favor. Charter One, 865 N.E.2d at 604. In this case Plaintiffs filed a complaint for declaratoryjudgment seeking certain documents from Representative Eric Koch. In particular, the complaint recounted three separate requests: the first dated January l6, 2015 requesting “emails, draft records, notes, minutes, scheduling records, DocuSign Envelope ID: 0362325F-5A76-4702-AE56-QBAEA49AB1C2 u and text messages, Koch and the : __/. other correspondence or records” pertaining to correspondence between all a certain energy company, App. at 7-8; the second dated February same information third dated March 9, 2, as the first, but included several additional energy companies, 2015 requesting “all emails, correspondence, September 1, Koch and 2014 ten identified energy companies to the present.” App. at 8. App. Counsel. also gontcnded that APRA individual members and at 8; 'the ‘fixed charges,’ and energy company lobbyists at 15, 19, 23. “excludes With respect fiom disclosure APRA “does not apply to the to the third request, the . partisan staffs of the General Assembly.” . . the App. 2. Plaintiffs’ claims should be dismissed for two separate reasons. 3. First, the judicial decree Plaintiffs seek would interfere with the workings of the legislature. Under controlling Indiana Supreme Court authority, Plaintiffs’ claims are non—justiciable and must be dismissed under Rule 12(B)(1). internal Second, Plaintiffs fail to state a claim upon which judicial relief can be granted under Rule 12(B)(6): 4. two ofthe three Plaintiffs lack standing under the Act because they did not file the disputed public-records requests (ii) is are the subject of this lawsuit; neither Representative Koch and a “public agency” under the Act; and [sic] the at 23. they had to say: 'that Chief work product of In response to Plaintiffs’ cornplaint Defendants filed their motion to dismiss. Here (i) fiom ReSponding on behalf of Koch, the Chief Counsel: of the House Republican Caucus denied each request insisting that Indiana General Assembly.” App. other documents that pertain o_r to ‘net metering,’ ‘solar energy,’ ‘distributed gencration,’ ‘electric fairness; or created between 2015 requesting nor the Caucus is what DocuSign Envelope ID: 0362325F-5A76-47C2-AE56-QB__AEA49AB102 X ' u ..-'—- / x . k/ I \ ~.__,/ the Caucus (iii) is not a proper party for the additional reason that the requests at issue here were directed solely at Representative Koch. App. As at 33. But contrary indicated earlier the majority correctly dispensed with Defendants’ first reason. to the majority’s position, conspicuously absent fiom Defendants’ second reason is any mention whatsoever of “work product” as a ground for dismissal. Apparently recognizing this omission, the majority attempts to get around affinn the grant of a motion to dismiss if it it is citing authority for the preposition that sustainable on any theory." we “may Slip 0p. at 5 (citation omitted). Two problems. Instead the trial First the tn'al court did court found it unnecessary this case for lack ofjusticiability. This is not grant Defendants’ 12(B)(6) motion to dismiss. of its decision dismissing to address the issue in light not a situation where the trial court granted the 12(B)(6) motion, say for example, on grounds asserted by the Defendants, “neither Representative and [sic] nor the Caucus a ‘public agency’ under the Act” and this Court agreed with’ the is dismissal outcome, but for different reasons. In essence is now affirming the trial court’s appellate Dowdell coun may affirm v. State, a court on an alternative theory N.E.2d 154, 157 There members and is (Ind. .1 is court’s no question cannot be said that-in 146, 1152 (Ind. 1999) (emphasis added). Court of course true that “an But affirming the trial appropriate only “where the parties have addressed themselves to is ultimately sustained.” Havert v. Caldwell 452 (citation omitted). APRA exempts from disclosure “[t]he work product of individual the partisan staffs of the general assembly.” glaring problem here it is this case the judgment on any theory supported by the evidence.” on which the judgment 1983) it grant of a motion to dismiss. Second, trial 720 N.E.2d the merits of the theory Koch however is that neither before the Court, did the parties address the merits of this Ind. Code trial court, The § 5-14-3-4(b)(14). nor indeed even before work product exemption. And this importantly, in responding to Plaintiffs’ complaint Defendants never alleged a work product exemption or asserted “emails, drafi records, notes, minutes, scheduling records, text messages, and correspondence or records” fall within the exemption umbrella. It is all other worth recalling that the DocuSign Envelope ID: 0362325F-5A76-4702-A556-9gAEA49AB102 ' ,-" s 4 question before us . . .” Ind. Trial documents is Q u whether J Plaintiffs have “state[ed] a claim upon which relief can be granted Rule 12(B)(6). Absent evidence the Plaintiffs request, it is-plain to motion to dismiss.5 The maj ority’s ruling me Plaintiffs’ is 5 this matter to the trial the specific complaint survives Defendants’ 12(B)(6) not only premature, but a significant separationof powers issue without an adequate record. and instead remand deemed exempt legislature has . it I unfortunately weighs in on would refrain from so doing court for further proceedings. “work product” has a defined meaning. See. mg, Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 78 (Ind. 2006) (noting, “[t]he purpose of the [work product] privilege is to protect the mental impressions and legal theories of attorneys and their clients”). Here the majority seems to suggest that no matter the definition, if the legislature simply labels a document as work product then that automatically makes it so and the Court has no say in the matter. This goes too far in my It is VleW. also worth noting that DocuSign Envelope ID: "t 0362325F—5A7647CZ-AE56-QBAEA49AB162 r ‘3 /-_‘\ . ". . ._/c /. ’ .0,- . .-"-i STATE OF INDIANA IN "gag "ET“ ‘ RIM THE SUPREME COURT CITIZENS ACTION COALITION 0F INDIANA; COMMON CAUSE INDIANA; ENERGY AND Cause No. 49$00-1510-PL-00607 POLICY INSTITUTE, Appeliant(s), v. INDIANA HOUSE REPUBLiCAN CAUCUS ERIC KOCH Appellee(s). CERTIFICATION STATE 0F INDIANA ') Court of Appeals ') ) l, Gregory R. SS: Pachmayr, Interim Clerk of the Supreme Court, Court of Appeals and Tax Court of the State of Indiana, certify the above and foregoing to be a true and complete copy the Opinion of said Court IN in the above entitled case. WITNESS WHEREOF, hereto set my hand and affix the seal of THE CLERK of said Court, at the City of Indianapolis, this on this the 12th day ofJuly, 2016. Gregory R._ Pachmayr, Interim Clerk of the Supreme Court of- ’-__ H» w_ _ L” L “i ( THE INDIANA SUPREME COURT OR COURT OF APPEALS 1N Case No.: 49A02-1509-PL—01354 t Superior the Marion Appeal from County ) Court D14 ) CITIZENS ACTION COALITION OF INDIANA, ET AL. Appellant (s) ) Trial Court Case No: ) 49D14-1504—PL-012401 w A F LED ' - ) ) OCT 0 8 ) VS. ‘ ) The Honorable James R. Osborn ) Judge, Vfiia— OLE! 6L4 2015 £1»ch MOFflEfJAREOMG'RSUWCOUI ) INDIANA HOUSE REPUBLICAN CAUCUS, ET AL. Appellee(s) ) ) ) NOTICEOF COMPLETION 0F CLERK’S RECORD Eldridge, the Clerk of Marion County Superior Court, hereby notifies the parties, pursuant to Myla A. Appellate Rule 10(C), that the Clerk’s Record in this case has been assembled and is complete. The Transcript is: (a) Completed (b) Not (c) Not requested yet completed in the Notice of Appeal o transcript to prepare AttaChed t0 - this Nome 0f Completlon IS a certified and updated copy of the Chronological Case Summary. Debuty Clerk 10/8/1 5 Date Issued CERTIFICATE OF SERVICE certify that on October 8, 20.15 I served a copy of this documentupon the following person(s) Indiana Supreme Court of Appeals and Tax Court 21 6 State House, 200 West Washington Street, Indianapolis, IN 46204, William Groth, David Vlink, 429 Vermont St. Ste. 200, Indianapolis, IN 46202, by United States Mail I postage pre-paid me» CI'erk', a; 3W Marion Superior Court F MED 0m $11 the CITIZENS ACTION COALITION, and COMMON CAUSE INDIANA, Appellants, Indiana Court 0f Appeals Case N0. 49A02-1 509-PL-1354 ) ) ' ) Marion Superior Court Case No. 49D14-1504-PL-12401 ) ) V- 2015 ax E’Lé’ctualqfl) W226» CLE....0FTHEmmommpcuz‘rcoukr gnhiana gupreme Quart ENERGY AND POLICY INSTITUTE, 06 ) REPRESENTATIVE ERIC KOCH, INDIANA HOUSE REPUBLICAN and ) ) ' CAUCUS ) Appellees. ) Order This appeal . is presently pending before the Court of Appeals. The appellants have filed a “Verified Motion for Supreme Court t0 Accept Jurisdiction Pursuant t0 App. R. 56(A),” asking this Court t0 assume jurisdiction over this appeal. See generally Ind. Appellate Rule 56(A). The appellees oppose the appellants’ motion. Having considered the parties submissions, the Court hereby GRANTS verified motion. Pursuant to Appellate Rule 56(A), the appeal shall proceed in had originally been filed here and shall be subject to the deadlines set forth the appellants’ this Court as in the if it Appellate ' ' Rules relating to the record and briefing. shall assign this appeal a Supreme Court case number and transfer the summary from the current Court of Appeals case number to the new Supreme Court case number. The new case number shall be used by the parties on all future filings. The Clerk chronological case Done at Indianapolis, Indiana, 0n 10/6/2015 . Loretta H."RuSh Chief Justice 0f Indiana STATE 0F INDIANA IN ) THE MARION SUPERIOR COURT )ss: COUNTY 0F MARION CAUSE N0. ) CITIZENS ACTION COALITION 0F INDIANA, ENERGY AND POLICY INSTITUTE, and COMMON CAUSE OF INDIANA, ) ) ) ) ) Plaintiffs, FILE D ) ) v. ® ) ) KOCH INDIANA HOUSE REPUBLICAN CAUCUS, ERIC and 49D14—1504—PL-012401 AUG 1 1 2015 mfimmw ) ) ) Defendants. ) Order Dismissing On August 11, 201 5, Plaintiffs’ Claims the Court held a hearing on Defendants’ Trial Rule 12(B) motion to dismiss for lack ofjusticiability and for failure t0 state a claim. Having reviewed the briefing 0f parties and considered the arguments 0f counsel, the Court finds the Masariu case applicable and controlling and therefore justiciability. the Defendants’ motion be to dismiss for lack of dismissed with prejudice pursuant to Rule 12(B)(1). Because Plaintiffs’ claims are this ruling resolves the case, the GRANTS to Court finds it unnecessary to address Defendants’ motion to dismiss for failure t0 state a claim under Rule 12(B)(6). SO ORDERED this ll'h day 0f August, 2015. Hon rable James B. Osborn. Judge Mar on Superior Court 14. Civil Division Distribution: William R. Groth. Vermont D341 Street, Suite Geoffrey Slaughter, R T. Vlink. FILLENWARTH DENNERLINE GROTH & TOWE, LLP. 429 E. 200 Indianapolis. [N 46202. se] 1 Mcnyhart. TAFT STE’I‘TINIUS & HOLLISTER LLP. Onc Indiana Square, Suite 3500. Indianapolis, IN 46204. swz t WW STATE OF INDIANA IN ) SS: ) COUNTY OF MARION THE MARION SUPERIOR COURT CAUSE NO. 49D14-1504—PL-12401 ) CITIZENS ACTION COALITION FILED OF INDIANA, ENERGY AND POLICY INSTITUTE, and COMMON CAUSE OF INDIANA, ® AU6042m§ ‘fln Pla intiffs I 311 a] 61mg! OF TH! MARION CIRCUH’ COU VVVVVVVVVVVVV V. ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, Defendants. Defendants’ Reply Brief in Support of Rule 12(8) Motion Plaintiffs are needed which t0 show to Dismiss unable t0 withstand dismissal 0f their case. T0 avoid dismissal, they both that their claims are justiciable and that they judicial relief against Defendants can be granted. Plaintiffs have stated claims on have shown neither. Argument Plaintiffs’ claims are not justiciable. I. ,/ 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 t0 edgment make much of Defendants’ acknowl- that the Access to Public Records Act applies t0 the General Assembly. AUG 0‘! 2015 [1"‘5 (/‘w‘ x. This ”concession” [P]. Opp. 2], I' which merely construes the Act as written—it applies ”public agencies”, including those that exercise ”any part of the the State", Ind. Code §5-14-3-2(n)(1)—d0es not entitle Plaintiffs this lawsuit. Plaintiffs . power of legislative to the relief they seek in both overstate what Defendants have conceded and misunder— stand the implications of "the concession. Here to Defendants’ .. to is what Plaintiffs said in their brief: ”As TR 12(B)(1) motion to dismiss, Defendants contend that notwl-ithstanding their goncession that the [Act] applies tQ them, they are and that this Court is powérless in the face of not required to follow that law, that refusal.” [PL Opp. 2 (efiphasis add- ed).] First, Defendants héve never conceded the Act applies to ”them”. Representative Koch. and the House. Republican Caucus both maintain that neither subject to the Act. [Def. tinct-issues (it is); view by treafing them and whether the (it is Memo. not). 13—16.] 1097 (Ind. 1993). whether the legislature legislature’s alleged violation of the our Supreme Court held in State ex ”If Jthe iegislature Masariu v. is subject to the Act Act is subject the legislature‘ violated the Act rel. a "public agency” Second, Plaintiffsnconfuse two conceptually‘dis- as interrelated: Any claim alleging is Mariofi Superior is Ct. to judicial re- non-justiciabie, as No. wishes to authorize sanctions against *1, 621 N.E.2d itself claim by press or public alleging impr0per legislative secrecy, such sanctions . have to -by the be determined and imposed solély course to the courts.” Id. at 1098. legislative branch itself, upon a would without re- I Plaintiffs also point to the legislature’s unsuccessful effort in from the Act as somehow undermining Defendants’ Opp. 14.] But as stated above, Whether the inquiry from whether courts B. itself non-justiciability argument. [See P1. legislature is subject to the Act is a s'eparate may eritertain purported violations of it.‘ Plaintiffo claims are not justiciable under settled Indiana doctrine. Contrary to is 2001 to exempt Plaifitiffs’ characterization, not ”extraordinary”, nor does jusficiability doctrine. [P1. Opp. it 2.] Defendants’ non-justiciability argument reflect an "expansive” View 0f our Supreme Coprt’ s Defendants’ argument, rather, comfortably with- fits - ‘ in the Court's settled jurisprudence on justiciability. Far from being ”unsupported by precedent” or ”incorrect as a matter of la'w” [PL 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 De- fendants contend) Plaintiffs’ claims are non-justiciable, then the Court any kind of a merits judgment. Its sole obligation is to may not enter dismiss the case, see Berry Crawford, 990 N.E.2d 410, 422 (Ind. 2013) (directing trial court on remand v. to grant the 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 fime admitted fllét they are subject to APRA.” [PL Mot. Partial S], ‘jIS at 2 (emmotion t0 dismiss), or face a phasis added).] As discussed above, Defendants admit the legislature is subjeCt to the 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 f0 dismiss, briefing on summary judgment should go forward only if the pending disAct; they missal motion is denied. In stark contrast, Plaintiffs cite cases that are literhally. over the map, figuratively and Many of their cases are from other jurisdictions. None of the justiciability cases Plaintiffs cite are pubiic-records cases. state all For their part, Defendants. cited cases from two supreme courts—Indiana’s and Iowa’s—holding legislative documents under a public—records specifically that claims seeking statgte are non-justiciable‘ See Masariu, 621 N.E.2d 1097; Des Moines Register and Tribune Cg. v. Dwyer, 542 N.W.2d 491 (Iowa 1996). Our Supreme Court’s most recent, comprehensive ciples analysis of the structural prin- underlying Indiana’s separation-of—p'owers doctrine occurred in Berry Crawford, v. 990 N.E.2d 410 (Ind. 2013), the'legislative-fines case. There, the Court reversed a judg- ment entered in favor of aggrieved legislators who had sued under Indiana’s Wage Payrfient Statute after they were fined for depriving the House of a quorum by their un- authorized absence. Three different grounds referenced in Berry compel the conclusion that Plaintiffs! claims here are non-justiciable.2 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 didnot 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 ticiability cases in v. Carr (explicitly or impliedly) t6 supply the rule 0f decision in jus- Indiana is irrelevant here, for Berry itself identifies multiple grounds ' for assessing whether a claim is justiciable. Masariu, which was reaffirmed in Berry, holds that courts shall 1. not intervene in the internal functions of the legislature. Th'e first Court’s own ground for determining that Plaintiffs’ claims are not justiciable is the 1993 decision in Masariu. Berry expressly reaffirms Masariu’s holding. ”For courts t0 get involved in such a legislative function would amount to the type of ’consti- tutionally impermissible judicial interference With the internal operations Qf the legisla- tive branch’ sariu, which we have rejected in the past.” Berry, 990 N.E.2d at 414 (quoting 621 N.E.2d at 1098). See are performed, 0r controlled added by the also Berry, 990 N.E.2d at 421 any lack 0f performance 0f those House (”How duties, is an Ma- those [clerk’s] duties internal mqtter totally leadership”)- (.quoting Masariu, 621 N.E.2d at 1098) (emphasis in Berry). Mdsariu’s significance a pdblic-records'case in is that it most closely resembles Plaintiffs’ case. which our Supreme Court never reached found the claims It, too, was the suit’s merits be- be non-justipiable. The Court framed thé test for jusficiabil- cause it ity in terms of whether a judicial decree would ”intermeddle” or ”interfere” with the t0 ”internal functions” or ”internal operations” 0f a coordinate branch 0f government. sariu, 621 N.E.2d at 1098. In Masariu, the plaintiffs alleged that House voting records public records available for ifispection and copying under the Act. Although the clerk is a functionary'who performs a ministerial role holder, the Court still found the claims to and is Maare House not é constitutional office? be non-justiciable. ”[T]0 the extent such enI actments [the Public Records and Open Door Laws] empower the judicial branch t0 in— .-_‘ V} \FJ quire’into atix'res, §1] of and interfere with the internal operations of the Indiana Héuse of Represent- said application transgresses the our state constitution.” above separation of poxLVers clause [Article 3, Id. Masariu’s holding and rational? compel the conclusion that Plaintiffs’ claims are likewise not justiciable. Masariu held that a judicial decree seeking documents concern- ing 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 prinpip‘les. It fol— lows that these same principles preclude documents concerning how a legislator this Court from ordering the disclosure of discharges his discretionary responsibility for considering and devising legislation, including communications cerning proposed legislation. As Masariu proper legislative secrecy” does not Plaintiffs try cases tfiat rely on it. Plaintiffs the relief remedy may have had con- for Defendants’ alleged ”im- the courts. without success to diminish Masariu’s import and [See P1. Opp. 13-15.] They argue, [Id. at 14.] th'e subsequent for example, that ”[g]ra.nting they are segking under [the Act] will not intrude internal proceedings.” ble. lier-in held, the hel But legislators do not discharge upon the House’s their duties in a bub- Their cgmmunicafiéns With others pertaining to prdposed legislationare an inher-- ent part of the legislature’s legislators do. own operations. Legislating, after all, is the essence of what Under Masariu, how they discharge communicate. in discharging it, is their business that function, and not the and with whom they courts’. Our Court of Appeals has already held the regulation of lobbyists— those seek to influence legislafion—is an internal function of Cause, Inc. v. State! 691 N.E.2d 1358, 1361 (Ind. Ct. App. the- General who Assembly. Common 1998). In rejecting CommOn Causé’s separation—of—powers claim, the Court noted that legislative bodies directly regulate lobbyists as part of their legisléfive powers. the clearly delineated ’[i']t is pbwers Id. The Court drew an analogy of the judiciary in regulating the legal profession. ”Just as the exclusive province of [the Supreme] Court to regulate legal activity’, exclusive province 9f the legislature to regulate the activity of lobbyists.” question Masariu’s continuing validity Plaintiffs also ‘ Court’s more recent to f’in Id. light of the and detailed pronouncement in Berry.” [PL Opp. 14.] it is the at 1362. Supreme As mentioned previously, not only did Berry expressly reaffirm Masariu, 990 N.E.2d at 414, 421, but the disputed communications and so are not susceptible Iat issue here fall squarely Within a ”core legislative functiOn”, to judicial review. Berry’s éxamples- of acts that might fall, within the purview of the judicial authority—House leadership disciplining members for non-Iegislative action, or applying criminally punishableforms of legislative disci— pline—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 The second ground der Berry v. Crawford is commitment of the issue t9 the Legislature.” for determining that Plaintiffs’ claims are non-justiciable un» ”whether there is a ’teaétually demonstrable constitutional commit— ment of the issue’ presented by Plaintiffs’ complaint to a’coordinate ment.” [PL Opp. 4 (quoting Berry, 990 N.E.2d at 416) (emphasis political depart- Plaintiffs’).] Plaintiffs discuss this at length, but to no persuasive effect. Under this non—justiciable ture ”where a particular functioTl'has been expressly delegated by our Constitution without any express consfitutional limitation or Berry, 990 N.E.2d at 421. plained below, §16‘) ground, claims Challenging the exercise of legisiative authority are first Plaintiffs misapply this to the legisla- qualification." standard in several respects. As ex- they ignore one of’the express constitutional provisions (Article upon which Defendants relied in Eheir opening brief. In addition, Plaintiffs 4, misun- derstapd (and hence misapply) two other provisions on which Defendants relied (Arti— ‘ N . cle 4, §§10, 13). a. At the outset, Plaintiffs state incorrectly that Defendants’ justiciability is and 13”. [PL Article 4, §16 argument premised. on just ”two sections 0f the Indiana Constitution, Opp. 7 (citing Def. but they also rely onlArticle 4, Memo. §16, chamber: ”Each House shall have department of a free. Constitution vests 6).] non— art. 4, §§ 10 Defendants do rely on those two sections, Which confers plenary power in each legislative all powers, necessary for a branch of thevLegislative and independent State.” AaBerry instructs, all legislative for power in the legislature, 5nd the House of Representatives. 990 N.E.2d it is axiomatic that our which consists of the Senaté at 418 (citing Ind. Const. art. 4, §1). Article , kw 4, := u. .:— \ \V j} .I §16 takes that grant of plenary power a step further by establishing that each legisla- tive chamber has aII 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, ”textually demonstrable constitutional Legislature” constitutes and they do so without commitment of the qualification. This [legislative function] to the an express delegation ”without any express constiffitional limi- tation or qualification.” Berry, 990 N.E.2d at 416, 422. Plaintiffs' claims are directed at thatlegislative function and Article 4, §10 b. Article 4, §10 Plaintiffs argue are, therefore, non-justiciable. empowers the legislature to ”determine this provision authorizes the House merely its rules O_f ”to regulaté proceeding”. its legislative proceedings occurring on the House floor” and ”says nothing about the regulation of individual legislators’ communications from lobbyists or other métters that are ancillary to lawmaking”. First, [P]. Opp. 11.] Theré are at least two problems with Plaintiffs’ argument. 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 ”t0 govern the internal operations of the House.” 990 N.E.2d communications are not ”ancillai'y to at 418. lawmaking” but essential Second, legislators’ to it. They are an indis- pensable part of the legislative process, Whereby the elected represehtative hears from and considers the views of those likely to be affected by proposed legislation. The l .\../ ‘. V / longstanding policy of treating these communications as confidential is a ”rulé of pro- ceeding” that exempts this matter from judicial review, as the Iowa Supreme Court held in Des Moines Register. detailed "A senatorial policy governing these actions [the decision to phone records cofiidential] keep therefore clearly constitutes a 'rule of proceeding’.” 542 N.W.2d at 501. Article 4,'§13 c. Article 4, §13 establishes a presumption that legislative proceedings are to be conducted publicly but confers in the iegislature the exclusive power to determine wh'en ”secrecy” Whole, shall may be warranted. ”The doors of each Ho_use, be kept open, except in such cases, as, in the an-d of Committees of the opinion of either House, méy require secrecy." Plaintiffs contend that this provision applies solely to ”floor proceed- ings”. [P1. Opp. 9 (emphasis P1aintiffs’)], though they cite n0 case adopting their-view. I But even if Plaintiffs are Plaintiffs’ tional cdrrect, that ultimate argument is that §13 commitment to the legislature of the their claims for legislators fact, however, would not bolster Plaintiffs Ill is their argument here. not a textually demonstrable constitu- power to conduct its affairs in private, so off—the~floor” communications remain fully justiciable. In have things precisely backward. As explained previously, §§10. and 16 provide the legislature with all the power needed out of the public domain. At most, the effect of §13 floor business behind closed doors. Plaintiffs’ 10 is to keep such communications that the legislature cannot c0nduct view of §13 would not impair the legisla- \HJI ,rl maintain secrecy concerning non-floor bus_iness, however, including a ture’s ability to legislator’s \_ communications with constituents, lobbyists, and other legiélators. Berry mentions another factor—whether judicial review ”would 3. express a lack of the respect due” the legislature. Finally, the third 'Plaintiffs’ ground refeII'enced in Berry claims aye non—justiciable is '0. Crawford for concluding that 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-Ieflerson Civic Center Auth. 221 (Ala. 2005) tum quoting Baker v. (in of this ground, but likely sarz'u it is v. City of Birmingham, 912 So.2d 204, 220, Carr». Berry did not outline the precise cpntours simply a restated version of the principle expressed in Ma- that ”court§ should not intermeddle with the internal functions” of the legislature. 621 N.E.2d at 1098. there should be no doubt the relief Plaintiffs seek here— 'a decree compelling sure of Ilegislative because it C. However ofir courts ultimately interpret and apply this principle, the disclo- communications—would be inappropriate for judicial consideratipn would be at odds with the ”respect due” the General Assembly. A finding thét Plaintiffs’ claims are not justiciable will' not implicate the Indiana Constitution’s “Open Courts" provision. Plaintiffs suggest, without support, that a ruling in favor 0f Defendants would deny them a ”remedy by due course of IaW”, in violation of Article courts provision of our state constitution. [PL however, there ”is no right Opp. 6;] 1, §12,lthe open- Even Plaintiffs acknowledge, under the open courts clause to any particular cause of ac- 11 -_ 1, v tion; and_ the legislature \v/ may create, sistent with this provision. [Id.] modify, or abolish é particular cause of action” con- Both of'these things are t‘r-ue, and so is a third: a court does not violat'e the open—co'urts clause by declining to.hear a non—justiciable claim. i’laintiffs cite Plaintiffs’ D. no casé holding otherwise, and fgr good reason. Were there anything to argument, both Masariu and Berry w01I11d have been decided differently. Plaintiffs’ ”public policy” uents’ arguments ignore the integral role of constitand Iobbyists’ communications in the legislative process. 1. Plaintiffs draw an illusory distinction between lobbyists and constituents. Plaintiffs discount the contending the ”lobbyists” not ”constituents” 16.] valpe of keeping legislative communications private by who may have communicated with Representative Koch are but' ”paid-representatives of The problem with Plaintiffs' jab First, lobbyists fulfill sent myriad gfoups is monied cbrporate interests”. [PL Opp. threefold. a vital role in our participatory democracy, Lobbyists repre- whose members comeAfrom every walk of fife. Among the many registered lobbying g‘roups at the Statehouse representing their membei‘s’ interests are Indiana Chamber of Commerce, Indiana Teamsters Joint Council, Indiana State Teach- ers Association, Indiana es Association, Farm Bureau, Indiana State Medical Association, Indiana Judg- Hoosier State Press Association, Indiana Catholic Conference, Planned Parenthood Advocates, Mental Health Association of Indiana, Campaign for TobacéoFree Kids, Indiana Association of Cities and Towns 12 a_nd, yes, Indiana Energy Associa- I :I ll \u/ tion, N,’ along with wouId-be Plaintiffs alition of Indiana. [Indiana Clommon Cause of Indiana Lobby Registration Commission, public database, at https://secure.in.gov/apps/ilrc/Iobbyist/#/pub1ic, last visited 0f these organizations have a First mind to petition their and Citizens Action Co- Amendment right to Aug. 3, 2015.] available Members collaborate With others of like government for. a redress of grievances. Exponentially more Hoosiers participate in the legislative process through lobbying groups than interact di- rectly with their elected representative's. Second, Plaintiffs offer no basis for distinguishing between legislator cemmuni— cations with constituents versus lobbyists. byists’ communications with To the extent Plaintiffs believe that only lob- legislators are deserving of privacy or confidential treat- ment, they posit the dangerous principle that the disclosure. of the communications de- pends on the identity of the speaker. Third, our Court of Appeals has already held that determining the terms of en- gagement with lobbyists is a legislative function. Common Cause, 691 N.E.2d at 1362. Re- jecting claims that the General Assembly violated separation of powers in setting up the Indiana Lobby Registration COmmission, the Court held that the regulafion 0f lobbyists is Id. an internal legislative function and within the ”exclusive province” _of the legislature; at 1361-62. 13 and the effect that disclosing their c0mmunications would have Plaintiffs ignore the privacy rights of constituents 2. A chilling on the To legislature’s information-gathering process. the extent Plaintiffs believe all legislator communications should be a_n open book, they ignore compelling public—policy reasoné for avoiding such a rule. Subjecting legislative ent—and COrrespondence to public dissemination will likely dissuade the correspond- especially ing so through a letters, e-mails, th’é private citizen—from expressing his views, or at least from do- medium of communication subject to a public-records disclosure voicemails—the very media most likely, to be used by the average (e.g., Citi- zen). In the Des Moines Register case, the Iowa Supreme Court held that a newspaper’s request for the state senate’s detailed phone records 503. The records contained only metadata a particular phone, was not justiciable. N.W.2d at of legislator calls—identifying the charges for 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 ration—and not the substance of any communications. for disclosure of these limited records to tutionally granted 542' Still, call, and the call’s du- the Court found the claims be non-justiciable as Within the senate’s consti- 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. 14 Id. Two aspects of the Iowa Court’s decision are relevant here. First, the Court de— termined that communications with constituents and the public at large are ”integral” to the legislative process. ”Public senate’s performance of its communication with senators is an integral part of the constitutionally granted authority to enatt laws." Id. at 499. The Court continued: Part of the probedure of the senate as a whole ters of legislation is to communicate on mat- with the public. The phone conversations at the heart of the controversy before us constitute actions taken by the senate as ceeds in the exercise of its power, in the transaction of the performance of duties conferred upon it by the its it business, pro— and in constitufion. 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 municate with legislators and would interfere with the senate’s ability to com- conduct busi- ness. The Iowa Senate has determined that a wholesale disclosure of ized call detail telephone records would be harmful to its the public item— and to the senate’s ability to carry out its responsibilities. Implicit in the senate’s by mail, or by telephone without any fear or suspicion that doing so would subject the decision is a citizen's right to contact a legislator in person, 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 substanfive coxnmunications. One 15 of the V \‘J, trofibling implications of Plaintiffs’ argument is that citizens who express their private thoughts and opinions in seeming confidence to their elécted representatives could find their names and {heir views disclosed to the public. The General Assembly’s longstanding practice of withholding legislator commubased in part on the belief that both the nications from public—records disclosure quantity and quality of citizen cemmunications with legislators increase when they are kept out of the public domain. Plaintiffs’ is contrary rule would have no limiting princi- ple. 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 vic- tims-rights legislation or those of a still-in—the-closet views on whether to add tions if their citizen explicit civil—rights protections to the sexual orientation and gender identity. thetical citizens gay would never share It is their who wishes to share his Indiana views on these important public-policy ques- communications were subject to public disclosure. The legislature takes se- between representa- and represented. Plaintiffs claim that Defendants’ reference to a longstanding General Assembly practice of treating coxjrespondence as confidential the 12(B)(1) motion because it is . not far-fetched to believe that these hypo- riously the responsibility for safeguarding such c0mmunications tives Code based on may not be considered in ruling on unsupported by evidence. own complaint includes three exhibits (two responses 16 to [P]. bpp. 12.] But Plaintiffs’ Energy and Policy Institute’s ‘ \/ \vx‘ fecords requests and a letter to the Public Access Counselor) in which the chief counsel of the House Republican Caucus récites ”our House tradition ence as confidential.” [Complaint, Exhibit B. See also id., to treat all correspond- Exhibits D, E.] Thus, Plaintiffs’ own exhibits support the existence of the GeneraIAssemny’s practice of treating correspondence on legislative matters as confidential. In addition, Diefendants are attaching to this ter from the General Assembly’s attorney James A. parties in both legislative chambers, memorandum a March 22, 2001 let— Strain. Representingboth political Mr. Strain explained one 0f the reasons underlying ' ' the General Assembly’s practice of treating consfituent correspondence as confidential. Many citizens choose to petition their elected representativeé privately, using the mail, the telephbne or email. was a chance, If that their communications, they knew, or even thought there whether in the form of letters, would become ”public records” and possibly appear media, it would have a chilling effect on their willingness to express voicemails or emails, in the 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’ II. Plaintiffs 12(B)(1) moltionlto dismiss. have not stated claims against Defendants upon which relief can be granted. A. Citizens Action Coalition and Plaintiffs Citizens ifest lack of Common Cause l:a_ck standing. Action Coalition and Common Cause try t0 remedy their man- standing by submitting affidavits attesting to 17 their. interest in= obtaining \ I \W/ \4" pfiblic records. Plaifitiffs’ argument rfilot records plaintiff need is ! based on the mistaken premise that a public- actually request and bé denied documents before filing [PL Opp. 21.] Plaintiffs thus ignore that Section 9(e) of the Act confers standing to suit in "[a] file person who has been denied the right to insPect or copy a public record by a public agency”. I.C. §5-14-3—9(e). Yet Plaintiffs read the Act as claims to have an interest in seeing public records disclosed tiffs’ suit. strained interpretation finds theory, Energy if it said ”any person may file an action.” suit Based Plain- n0 precedent in Indiana case law. Under Plaintiffs’ and Policy Institute need got be a plaintiff here. According any person could file who to Plaintiffs, on another person's request under the -Act, with or without involvement of the person "who has been deniedhthe right to inspect and c0py recérds by a public agency." I.C. §5—14—3-9(e). Defendants’ interpretation statute. Section 9 explains in is based on a common—sense, plain reading of the what constitutes a ”denial of disclosure.” person or by telephone, a denial of disclosure occurs If If the request is ‘the‘public agenizy shall issue the dénial inwri‘ting, or a denial occurs automatically after seven days. lishes that subsection 9(e)’s the right to inspect afid received the made when the public agency verbally refuses to permit inspection or 24 hours has passed. LC. §5-14—3»9(b). made in writing, a request is orl Id. §5-14~3-9(c). Reading Section 9 in its entirety estab- subsequent reference to copy a public record” ”[a] refers to the person who has been denied person that filed the request denial, as laid out in subsections 9(b) to 9(d). 18 ~ _ l . \_/‘ \.. h . That section 9(e), this interpretation is correct is which states made even clearer by the last sentence of sub- that the person denied the right to inspect the records ”need no; allege or prove any special damage different from that suffered by the public at large.” I.C. §5-14—3-9(e). This was denied public records language protects the right of the person who sought and to file suit the denial. This language also without requiring further injury beyond the fact of makes a clear denied the right to inspect and copy, and tion and B. Representative (i) the person who are not public agencies. Koch is not a public agency. response to Defendants’ argument that Representative Koch Plaintiffs reply lé, n.5.] not a publit? In determining whether an cluded. ffom the statutory definition 0f a ”person” filed against the is only with case law related to Section 1983 of Title 42 of the United States Code. [PL Opp. official is ex- under §1983, a suit is considered to office—in other words, in the defendant’s ”official” rather than in- dividual capacity—when an individual is named in a §1983 action. Bayh 573 N.E.2d 398, 402-03 (Ind. 1991). The other case Plaintiffs cite in for §1983 purpqsés. Lake County juvenile Court But the §1983 exemption for v. State entities 19 v. Sonnenburg, support of their posi- tion also dealt with a §1983 Claim, finding that a county juvenile court 1996). was the public at Iérge. Citizens Action Coali- Koch and the Caucus Representative agency under the Act, be between Common Cause are muchmore like the latter than the former. '1. I'n (ii) distinction is not a ”person” Swanson, 671 N.E.2d 429 (Ind. Ct. App. and state officials, such as then- Governor Bayh and a county does not court, affect the plain statutory definition of ”public agency” in the Act. .The Act does not authorize suit against a ”person” (or cial), but only against a ”public agency”, rower than that of "persons”, id. the definition of which‘is nar- I.C. §5-14—3-9(e), §§5-14—3-2(1), offi- 2(1'1). I Plaintiffs also claim that Defendants’ citation to State Bd. ofAccounts University Foundation, 647 N.E.2d 342 (Ind. Ct. n.6.] But unlike Plaintiffs' reliance interpreting the Act at 354. ”Person” is itself. Finally, Plaintiffs a public of the Opp. is 19.] is ”inapposite”. [PL several definitions. 647 N.E.2d no case law not a public agency. Plaintiffs is a public agency because it exercises then state that the Caucus acts ”[t]hrough its In other words, even under Plaintiffs’ argument, only the House conduct legislative actions. That individual members of the association such as the relevant t0 any legislative action taken by individual members. members Opp. 18 agency under the Act. House may be part of an informal, unincorporated individual Indiana Defendants rely on case law directly §§é-14-3-2(l), 2(n). Plaintiffs identify argue that the Caucus power. However, leadership”. [PL members is The Caucus 2. cases, The term ”public agency” has not one of them. LC. holding a natural person legislative on §1983 App. 1995) v. And Caucus is ir- as demoristrated, of the legislature are not public agencies subject to the public- records law. 20 .yj, k5 Plaintiffs argue further that the Caucus has / somehow been transformed into a public agency simply because a Caucus attorney drafted the response to Plaintiffs’ pub- Iic-records request to Representative Koch. made to public-records request were [Id. at 18.] the Bureau of Under this logic, for example, if a Motor Vehicles, and an attorney Within the Attorney General’s office responded with a dehial, the Office of fhe Attorney General could be made a party to thepublic—records laWSuit, even though n0 records were requested from the Attorney General, but only from the BMV. This defies com- mon sense and the statutory language. As expla'ined above, natural perséns are not included in the definition of public agencies and, therefore, Representative Caucus of which he is part has no power and, therefore, also quested from the Caucus, . is it Koch is not a proper party here. Further, official capacity the and does not exercise. legislative not a public agency. Finally, because no records were re- could not have violated the public-records law. For these reasons, the Cdurt shofild also conclude that Plaintiffs claim against Defendants on which iudicial relief ‘fendants' 12(B)(6) motion. 21 -can be granted fail to a'nd, thus, a state grant Dé- Mama For all of these reasons, and those Court should dismiss with prejudice 12(B)(1). The claims Plaintiffs’ relate to legislator opening brief, the claims as non-justiciable under Rule communications and thus implicate a core lative function of gathering information Plaintiffs’ set forth in Defendants’ concerning proposed legislation. Alternatively, claims should be dismissed with prejudice under Rule 12(B)(6) because Plaintiffs Citizens Action Coalition and legis- (i) Common Cause lack standing under the Act; (ii) Defendants, Eric Koch and the Caucus, are not ”public agencies"; and (iii) the not an entity from which any Plaintiff sought public records. Res ectfully submitted, WWW Geoffréy figughter Russell Menyhart (25018-49) TAFT STETTINIUS One M33245) & HOLLISTER LLP Indiana Square, Suite 3500 Indianapolis, Indiana 46204-2023 (317) 713-3500 (Phone) (317) 713-3699 (Fax) gslaughter@taftlaw.com rmenyhart@taft1aw.com Counsel of Record for Defendants ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS 22 Caucus is Certificate of Service I certify that on August 4, 2015, I caused a true copy 0f the foregoing t0 be served Via first-class United States Mail, postage prepaid, and by e—mail upon the following counsel 0f record: William R. Groth, Esq. David T. Vlink, Esq. FILLENWARTH DENNERLINE GROTH 429 East Vermont Street, Suite 8: TOWE, LLP 200 Indianapolis, Indiana 46202 Weflw/fi S aughterU GeoffreyU 13013307 23 M. V . . D ma. 2. 2 . a S 4 w w a? m a 9 33 m 56 o a : q £n o n m : 2 m . 5 5 2 .m . . . 9 Da n 6 fifi E E é c m o :g Dx V! 0I '- gageé‘fémsgrain SOMMER&BARNARD ..- .. __.__ ATTORNEYS AT LAW PC ' .. __.._. ., : March 22, 2001 . Please mply to Bank One Tower address ;;; ._.....—.__._.__.. --.. ff”... Via Hand Delivery and Facsimile ..... Ms. Michele McNeil Solida The Indianapolis Star 307 North Pennsylvania Street P.O. _ Box 145 Indianapolis, Indiana 46206-0145 Dear Ms. Soiida: Senators Robert Garton, response to your letters dated March '14, 2001, to Roger's, and Representatives John Gregg, Mark Joseph Harrison, Richard Young, and Earline Thompsozi, requesting two weeks of emails Kruzan, Brian Bosma, Michael Smith and Jeffrey “state” email accounts or, ifused for State business, their sent or received from either their Public Records Act (I'C “personal" email accounts. In your letters, you cite Indiana’s Access to requests raise important 5-14-3— 1 , (sic)) (the “Act”) as the basis for your requests. Because your and because these legislators are questions uhder both the State and Federal Constitutions, engaged our firm to advise and represent them. treating your requests very seriousiy, they have requests. The reasoné in this Fonthe reasons briefly outlined below, they cannot honor your This latte; is in ' , ._ ' . letter arc not intended to be, and are The requested emails not, exhaustive. those terms arc are not “public records” of a “public agency” as . ' used in the Act. Accordingly, theAct simply does not apply. ha've requested The overwhelming majority of emails that you Both the Bill of Rights of the Indiana Constitution and the First are fiom constituents. Amendment to the Unitéd States “petition the [General Assembly] for redress Constitution guarantee to every citizen the right- to privately, using the citizens choose to petition their elected representatives of grievances.” Many even thought there was a'chance, that their mail, the telephone or email. If they knew, or would become “public commimications, whether in the form of letters, voicemails or emails, on their willingness toeffect aphillin-g records" and possibly appear in the‘media, it would have severely inhibit‘the citiz'ens’ right to petition their our qlients and express themselves to compromise ‘govemment for redress of grievances. Our clients are simply unwilling to ConstitutiOnal the compromise to Constitutional rights ofHoosiers. They are also unwilling the rights engage in unfettered Speech and 0f cunen’t and future Senators and Representatives to ' debate. 4000 Bank One Tower - 111 Monumenl 8900 Keystone Crosslnn ‘ Sulle Circle 1150 - - 7/630-4000 Indianapolis, Indiana 46204-5140 1Telephone 31 Indianapolis. Indlnna 46240-2134 - Telephone 3 17/630-4000 - - Fax 317/255-9802 Eu 3 17/8444780 1 .. Ms. Michele McNeil Solida The Indianapolis Star March 22, 2001 Page 2 . .‘ ' .\........ ... ' [f .t through your which Given the volum'e ofcoutacts that'legislators have on a daily basis, ion requirements, retent its and Act the to t subjec be requests you have implicitly assumed would ‘for iOn of alI of retent the and pay is big enough to store neither the State House nor the budget s, mail, voicemails and emails, tha't evidences of those contacts, whether in the form ofnote Indiana's Access to Public Records would be necessary to comply with requests such as yours. regardless of the form thatobligate legislators to produce any contact they have, \the statute ' does not ~ - 1; takes. s that they not cgmply with your reasons and others, we have advised 01;} client se.. ou this respon tequests, and they have authorized us to sendy ' F-or these cry truly yours, . James A. Strain JAS/aw .:‘-':::‘-: BARNARD SOMMERszATMW PO MTORNEYS zatmrmrrstztrt‘fiu ' -' STATE OF INDIANA IN THE MARION SUPERIOR COURT ) )ss: COUNTY OF MARION CAUSE NO. ) diTIZENs ACTIONCOALIIION OF INDIANA; ENERGY AND POLICY NSTITUTE; and COIVIMON CAUSE 0F INDIANA, 49D14-1504—PL—12401 ) ) ) - F ELED , ) - ) Plaintiffs, y a ) _vs_ > JUL 2 7 2015 ) Wzka W?) ) ERIC KOCH, and INDIANA HOUSE REPUBLICAN CAUCUS, “LE ) ° FmEMARIoncmcunco ) ) Defendants. PLAINTIFFS’ ) MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS I. Introduction and Bac Plaintiffs, Citizens (“EPI”), and brought round Acu'on Coalition of Indiana (“CAC”), Energy and Policy Institute Common Cause of Indiana (“Common Cause”) this action (collectively, “Plaintiffs”) under Indiana’s Access to Public RecordsAct, Ind. Code (“APRA”), seeking both a declaratory judgment that Defendants Koch in his official capacity as a member of the Indiana APRA, and House of Representatives second request after et seq. (Rep. (collectively, an order requifing them to provide Plaintiffs with specified emails and other communications between Rep. relating to legislation 5—14—1 State Representan've Eric Koch), and the Indiana House Republican Caucus (the “Ca1ik:us”) “Defendants”) are subject to § have dgling with matters involving K0ch and various lobbyists solar energy. Plaintiffs submitted a Defendants complained the first was insufficiently specific or detailed. - .IUL 2 7 2015 \ —. r , 'J Defendants denied both APRA requests contending that members of the Indiana General _ Assembly are not subject to APRA. Plaintiffs Indiana Public'Access Counselor (“PAC”). each time sought an advisory opinion from the Each time notwithstanding Defendants’ contrary position, fact, the PAC concluded that, members of the General Assembly arc, in covered by APRA. After Defendants persisted in their denial of access to the records Plaintiffs seek, Plaintiffs this brought Court to dismiss on the grounds, they this lawsuit for declaratory fail Plaintiffs’ Defendants have moved Complaint pursuant to Indiana Trial Rules 12(8) (1) and (6) upon which relief can be granted. Memorandum in Support of their Motion Defendants for the first time t0 apply relief. respectively, that Plaintiffs’ claims are nonjusticiable and, alternatively, that to state a claim In their and injunctive now recognize to Dismiss (“Memorandum” at 7), and concede that the General Assembly “chose to certain legislative bodies, including im/fi” (emphasis added). This [APRA] admission compels the Court to grant partial summary judgment to Plaintiffs on their request for a declaratory moved judgment that Defendants for partial As summary judgment on to Defendants’ ate subject to APRA. Plaintiffs have separately their request for declaratory relief. TR 12(B) (1) motion to dismiss, Defendants contend that notwithstanding their concession that the APRA applies to them, they are not required to follow that law, and that this Court is powerless in the face of their refusal. In support of this extraordinary position, Defendants cite the separation—of—powers provision of Indiana’s Constitution in Iart. 3, § 1. Because Defendants’ expansive views of the justiciability docm'ne are unsupported by precedent and incorrect as a matter of law, their TR 12(B) (1) motion to dismiss should be denied. Defendants’ alternative TR 12(B) (6) arguments are also without; merit: A11 Plaintiffs have standing, and Defendants are both proper party defendants. Accordingly, Defendants’ motions to dismiss ghould be denied on in toto, and this action should proceed to a final decision the merits. II. Argument A. Plaiflfific’stamtog claim: underAPRA areflnti'dab/e Despite having now acknowledged APRA’s applicability to them, Defendants-seek t0 avoid any judicial ruling on the merits of Plaintiffs’ claims by claiming that they are insulated from suit by the doctfine of nonjusticiability. Whether political quesn'on law. Baker u. Can; a claim presents a nonjusticiable so as to implicate the separation of powers doctm'ne 369 U.S. 186, 21-1 (1964) is State, pure question of (“Deciding whether a matter has in any measure been committed by the Constituu'on to another branch of government. exercise in éonstitutional interpretation,” a and is therefore a 319 P.3d 1196, 1208 (Kan. 2014) (Whether a claim . . is itself judicial responsibility); is nonjusticiable is a delicate Gammz 7). a question of law”). The upon justiciability doctrine has its origins in Baker z). Cam Jz¢m It is based in large part the pn'nciplc that the judiciary should not involve itself in “political questions” or matters that have been unequivocally and unqualifiedly committed by the federal or a state’s constitution to another branch of government; Though Baker sets forth six distinct factors for deciding whether a particular case presents a nonjusticiablc political questioa, the only factor relevant to this case the first: Whether there is commitment of the issue” presented by department. Berg! Reed, v. Crazzford, 364 So.2d 303, 305-06 Berg: is Plaixitiffs’ 1978) the seminal Indiana case “textually demonstrable constitutional paraphrases it as (in turn a “z‘extzm/é/ demomtrab/e constitutional complaint to a coordinate polifical 990 N.E.2d 410, 416 (Ala. is (Ind. 2013) (quoting State ex quofing Baker» (emphasis on separation-of—powers commitment of the rel. fame: 1). added).l jusu'ciabflity. It adopts the issue” requirement of Baker and an “express” and unqualified delegation or reservation of a “particular funcu'on” to the legislature by the Indiana Consu'tution. “Unless one of these [Baker 0. Can] formulations is inexMcab/e from the case justiciability.” Calm. Coalitionforfmlz'ce in at bar, there should be no dismissal for non- Educ. Funding 0. Rel], 990 A.2d 206, 218 (Conn. 2010) ’ (emphasis added). Where a defendant raises draw upon nonjusticiability federal decisions for guidance. jam: v. of a plaintiff’s claims, Sullivan, Indiana courts 703 N.E. 1102, 1'106 (Ind. Ct. 1998). State courts, however, are not required to rigidly apply federal principles and justiciability that have been deveioped under Article state courts are c0urts of generaljurisdiction which III may App. 0f standing of the federal constitution, as much broader jurisdiction than their Baker identified another characten'stic of a nonjusficiable poliu'cal. question as a “lack of judicially discoverable and manageable standards for resolving [the issues]...”. 369 U.S. at 217. The lack of l manageable standards may actually strengthen the conclusion that there is a textuale United States, 506 demonstrable commitment of a particular function to a‘ coordinate branch. Nixon U.S'. 224, 228 (1993). Plaintiffs are not asking the Court to interpret and apply an amorphous constitutional provision, such as the constitutional right to a free and quality education, see, e.g., Bonner ex rel. Bonner Danielr, 907 N.E.2d 516 (construing art. 8, § 1), but a statute (APRA) With manageable standards and which the judiciary is eminently qualified to construe and apply, just as it such judicially I). I). has in other APRA cases. federal counterparts. Matier oflflwmme, 579 N.E.2d 32, 37 (Ind. 1991) (‘WhileAru'cle III of the United States Consu'tution limits the jurisdiction of federal courts to actual cases and controversies, the Indiana Constituu'on does not contain any similar restraint”); v. Atkins, 357 Or. 460, justiciabflity case Article III law is _P.3d __, 2015 WL 4322264 .ree also Cougy Only 16, 2015) (noting that federal predicated on the case or controverSy limitations on judicial power in of the federal constitution but observing that Oregon’s constitufion ajke Indiana’s) contains no such limitations on judicial powers); and Lobato 0. State, 369-70 (Colo. 2009) (cautioning against mechanically applying the federal 218 P.3d 358, political question doctrine to statc-law claims and cases). Although there is clearly tension when courts are asked to judge the conduct of other branches, the judiciary has a solemn responsibility to decide cases properly before “wouldvgladly avoid.” Arizona Independent Redixtrz'afing those it (Ariz. 2012) (quoting Zipozofi/e} y. two branches of government. There is a claims founded itself. Cole Meetings 12. upon Colorado, Law does ’71, 275 P.3d 1267, 1275 power against eficroachment from the other particularly pressing obligation for a court to decide a statute, such as the APRA, that the legislature has decided to apply to 673 P.2d 345, 349-50 (Colo. 1983) (holding that Colorado not conflict with legislature to establish its article power Open of Colorado constitution that authorizes own rules). The existence “relevant to the Judiciary’s even ,132 s. Ct. 1421, 1428 (2012)). This Climax, 566 U.s. includes the duty t0 jealously guard the judicial Comm it, of a statutory right at minimum is to decide” a claim that a governmental defendant contends has been constitutionally committed to another branch of government. Zivotofiéy, 132 S. Ct. \./ at 1427 (Roberts, CJ.). This Court should also take into account the consequences of holding that APRA are nonjusu'ciable. under statutory claims Such Plaintiffs’ would deny Plaintiffs a ruling any (or other cidzens interested in goverpmental transparency) a “remedy by due course of law,” as guaranteed in Soutb Bend art. 1, § 12, the-“open courts” provision of Indiana’s ConstitutiOn. jeméz'm Commmzzy Scbool Co¢., 982 N.E.2d 343, 348 employer’s position if (Ind. Ct. App. 2013) (observing And While fight under the open courts clause to any particular cause of action; and the modify, or abolish a particular cause of action, Smith N.E.2d 802, 810 open (Ind. 2008); to entertain nonjusticiablc Id. z). zlr from the public, this Cranford, gym. Indiana Plaintiffs’ the unchecked Court should place Commimt Coalition, 990 A.2d 2). D¢t there legislature may of Correclz‘am, 883 a APRA claims axe power to decide which of its “heavy thumb on the side of on our Supreme Court’s recent decision in Bery’: holding of nonjusticiability in the legislative fines case “where a particular function has been no at 218. their principle reliance narrow one which must be analyzed in the is an existing cause of action the courts must be Moreover, because a ruling that Defendants place Berg! Where there would give the legislative branch affairs to shield justiciability.” it. that accepted by the court would leave the employee with no remedy, thus contravening the open courts provision of the Indiana Constitution). create, z). light of its unique facts. Berg: held that is it is a Only ewmw delegated to the legislature by our Constitution without any express constitutional limitation or qualificatioq” that disputes arising involving the exercise 0f thos‘e functious are nonjusticiable. The Supreme Court qualified its holding, however, by noting that'“[no_t] all disputes Within a political branch Qf government [including thosle outside the ‘core legislative function’]2 fall outside the pfiew of the judicial ’ authority.” Beryl, 990 N.E.2d at 421 (emphasis added). v Defendants here premise Indiana Constitution, fipon art. 4, their nonjusticiability‘ contentions §§ i0 and 13, which they assert upon two (Memorandum, sections of the at 6) confer the legislative branch plenary po§rer under our Constitution to determine which matters shall remain confidential and off-limits to the public even in the face of a statute, APRA, which the General Assembly deliberately chose Plaintiffs’ action to apply to itself. under APRA cannot be adjudicated on the merits in forum because those two They claim this that or any judicial constitutional provisions reflect a “textually demonstrable constitutional comrhitment” to reserve the issue presented by Plaintiffs’ APRA suit solely to a coordinate political branch. In Berg; our Supreme Court held a challenge to the exercise of the legislature’s plenary ' rights to judge the qualifications of-its members (art. 4, the legislature. § 14) was 06m members (art: 4,§ 10) and to discipline those nonjusticiable because those functions are reserved exclusively to The issue in the present case is one of first impression by Berg), and it is whether, notwithstanding the legislatlire’s that is not controlled commiunent to the public policy 0f transparency and openness in government embodied in APRA, Defendants House members’ communications With lobbyists from constitutional provisions relied 2 It is on by Defendants undisputed that the courts remain available to is shield public disclosure. Neither of the an example of a “textually demonstrable provid-le robust judicial oversight for matters outside the “core legislative function.” B0701, 990 N.E.Zd‘at 421. 7 may consu'tutional Plaintiffs’ commitment of that issue to a coordinate political department” so as to render APRA claims nonjusticiable. We Will discuss each constitutional provision in tum. § 13 is not a textuallg demonstrable constitutional commithnt to the leg'slative branch of the right to conduct all affairs in secret 1. art. 4, Article 4, § 13 of the Indiana Constitufion Committees of the Whole, either shall states: “The doors of eachHouse, and of be kept open, except in such House, may require secrecy.” Contrary to Defendants’ cases, as, in the assertion, art. 4, § 13, reasonably be read as giving Defendants plenary authority to conduct in secret. That provision 0n its face enacting legislation) make clear that the "that occur on applies tbef/aor 071/} all legislative their strong preference for it to legislative functions. (debating over 675 N.E.2d 318, 321 . . openness and transparency in the affairs of government. of the framers of the Constitution (Ind. 1996). Interpreting provisions and ratification, the 12. paramount in Town qu't. job”, framed it and those who ratified of the history surrounding its purpose and structure of our constitution, and the case law interpreting the specific provisions.” Bonner ex (Ind. is of ou; Constitution thus “involves common understanding of both those who [we] look to ‘the language of the text in the context drafting and of the House. The 1850 constitutional debates determining the meaning of a provision” in Indiana’s Constitution. Boebm . business conflicted with the framers’ distrust of legislatures and It is well settled that the “[i]ntent it cannot fight to conduct floor proceedings in private was understood to be a highly circumscn'bed tight because a search for the opinion of 73/. Bonner v. Daniels 907 NE. 2d 516, 519 2009) (internal citations omitted). It is important first to note that § 13, Which the Constitution refers to as the “Open sgssions and committee meetings” section, by its very words applies exclusively to floor proceedings dudng which “core” legislau'vc functions, such as debating and voting on proposed added). legislation, take place. (“The door: of each House...sha11 be kept open...”) (emphasis Onits face§ 13 thus does not grant the General Assembly unbridled power to shield from public scrutiny wn'tten communications fiom lobbyists to an individual legislator. It is not an by our Constitution,” “e:¢res.r[] to transact all delegat[ion] to the legislature Beryl, 990 N.E.2d or any portion of legislative business that transpires away from the in secret notwithstanding a statute (APRA) of general at 421, House floor applicability that expressly requires transpaxency in the affairs of government and which applies to any entity “by whatever designated, exercising any part of the executive, administrative, judicial, or legislative of the state.” I. name power C. § 5-14-3-2 (n)(1). Even if § 13 were deemed to be sufficiently elastic to apply to-alllcgislative functions, even those that occur off the floor 0r d0 not involve core legislative activities such as debating or voting on legislation, an examination of the deliberative history of that provision during the 1850 constitutional debates unequivocally demonstrates that the right to exclude the public from observing legislative business that shutting the doors to the public Convention of 1850, Vol. that we to be a severely qua/zfied fight, would be used any in exlrem mm. and See Debates Indiana . 2, pp. 1083-84. For instance, when his opposition to secrecy was intended art. 4, § 13 was proposed, Delegate Kelso was of legislative proceedings, should pass any such provision as this, especially blunt in stating “I maintain that for as far as secrecy is it is not necessary concerned, there is no - r such thing known I -_/ X I to the legislature of the State of Indiana. Nor should there be.” Delegate Petfit was equally adamant in his opposition to the need for secret proceedings: “I am opposed am utterly opposed to the proposition to transact to secret machinery in "the Id. legislative governmental business in secret. I govemment of a Republic.” Id. ' However; when Delegate Mather moved amend the proposed provision (which was essentially to be carried forward verbatim from the prior Constitution) to “except in such cases, as in the opinion of the House, Dodson replied in opposition to that may require amendment with the amendment should not be adopted. Cases may arise Where important at times that those outside the Hall should not are extreme mm, t0 b'e amendment to sure, but such cases do occur.” strike ’the reference to secrecy Id. stcike the words secrecy,” Delegate following assurances: “I think this secrecy may be required. It is know what is going on in it—they With those assurances the was narrowly defeated by a vote 0f 56 yeas and 67 nays, and the current language§ 13 was adopted. As seen from the constitutional debates, §13 Assembly of plenary power to conduct its explicit that it and implicit limitation—s. is not an express grant t0 the General affairs in secret; that provision contains both Because the text of § 13 and the debates surrounding it show does not coqfer to the legislature an unqualified demonstrable constitutional commitment of a finding that particular function to the legislative branch, that section cannot support a Plaintiffs’ APRA claims would breach the separation—of—powers doctrine as explained_in Beryl. 10 2. art. m 4 10 is also not‘a textuall demonstrable constitutional cornmitrnent to the legislature to conduct Defendants“ also claim that art. 4, § Koch Plaintiffs have requested under APRA. The portion of that section upon which Defendants legislature by our Constitutién to or aux 0f its affairs in 10,3 grants to the legislature plenary authon'ty to keep secret the lobbyists’ communications with Rep. to determine “its rules ofproceedz‘ng.” all That section refilse the also is rely gives the House the power not an express delegation to the public accéss to lobbyists’ communicau'ons with legislators. The legislature’s to regulate its legislative right to determine its “rules proceedings occurring on the regulation of individual legislators’ communications ancillary to of proceeding” authorizes the House floor; from it says nothing about the lobbyists or other matters that are lawmaking and seek to insure governmental accountability. Watwn App.3d 1059, 266 Cal. Rptr. 408, 413 Fair Politica/Praclz'cex Comm’n, 217 Cal. (legislature’s constitutional rule legislature making authorityjs not infringed by statute 11. (Cal. California App. 1990) which seeks to control the use of taxpayers’ funds to pay fér mass mailings by state legislators). Applying APRA’s rules transparency requirements do not interfere with the House’s night to determine of proceedings. just as significantly, Defendants do not cite any particular 3Aru'cle 4, Secu'on 10, of the Indiana Constitution Each House, When assembled, shall House rule addressing states in pertinent part: choose its own officers, the President of the Senate excepted; judge the elections, qualifications, and returns of its members; determine its rules of proceeding, and 11 sit own upon its own adjournment. its 2m. x/ legislator—lobbyist call communications. Instead, they allude (Memorandum, at 10) to what they a ‘iongstandingpmclz'ce of treating legislative correséondence as confidential.” (emphasis added). This unverified assertion of a General Assembly “practice” is not supported by any evidence, and it should not be considered in the Court’s ruling on Defendants’ T.R. 12(B)(1) J'mz'fb 1). Delta motion. “préct'ice” Tau Della, 9 N.E.3d 154, 159 (Ind. 2014). of declating such communications confidential and any event not the same thing as a “rule” constitutional authon'ty conferred on Moreover, an alleged off—limits to the public is in promulgated by the House pursuant to the the legislature by § 10. This alleged “practice” therefore cannot support a determination of a “textually demonstrable constitutional commitment” to give Defendants the unqualified discretion to ignore the transparency requirements of so as to render Plaintiffs’ APRA claims nonjusticiable. See Cole 2/. Colorado, 673 P.2d at APRA 349 (longstanding practice of Colorado general assembly of closing legislative caucus meetings notwithstanding Colorado’s open meetings law was not a “rule” promulgated pursuant to provision of Colorado constitution giving each chamber the its power to determine “the rules of proceedings”). It is also worth noting that public records 'laws and open meetings laws, respectively, present quite different considerations in a separation—of—powers analysis in terms of their relative degree of intrusiveness invalidated by a court for upon a violation Door Law has been committed, LC. N.E.2d 191, 199 (Ind. Ct. the legislative process. of APRA as § it A legislative act cannot be may be if a violation of Indiana’s Open 5-14-1.5-7 (d)(1 —3); Town qumi/lpz'l/e App. 1997). Requiting a 12 legislator to produce his z). Blanca, 687 communications from specified lobbyists does not alter the of proceeding governing the House floor. rules Neither has the leg'slature chosen to exempt from the disclosure requirements of the communicau'onsbetween ambiguous legislative v. legislators p. a court should .not interpret an of intruding into the sphere of influence reservéd to the legislative rule for fear branch, State and lobbyists. While APRA Cbm/a, 678 N.W.2d 880, 896—97 (Wise. Ct. App. 2004) Romnkozwki, 59 F.3d 1291, 1306 (7th Cir. 1995)), here'there is no House (citing rule this U..S'. Court needs to interpret, only an unverified and inchoate “practice” which comes nowhere close to rising to the level of a “rule” of proceeding. 3. State The older Indiana ex rel. Mararz'u Supreme Court p. Marion Sugm'or Cozm‘ No. cases upon which Defendants inapposite or easily distinguishable. State ex rel. Maran'u N.E.2d 1097 (Ind. 1993), was the result 0f a 7 suit by the without explanation denied access to a record 0f the p. rely are either Marion Superior Cozm‘ No. Indianapolis Star after the 1:011 call 7, 621 House Clerk votes to reporters to show how each representative had voted on controversial amendments to the state budget. In a onc- page decision on a writ of prohibition (over dissents by justices Shepaxd and Ktahulik), and without any analysis doctrine, the 6, the Baker u. Carr factors or any discussion of the justiciability Supreme Court, thrOugh former Justice Givan, granted and halted further March lof judicial proceedings. However, as the Public 2015 advisory opinion observed, the focus the extraordinary wn't Access Counselor in his in Masan'u was upon whether House personnel should be required by the courts to undertake a particular discretionary task. Masada did not address any substantive APRA issue nor did it decide whether APRA was 13 generally applicable to the legislature, a crucial point concerning which the Defendants have now conceded. Granting Plaintiffs the reliéf they are seeking House’s internal proceedings. Unlike Mayan'u, seeking to force the Clerk to take Plaintiffs under APRA not intrude upon the have not sued the House Clerk Plaintiffs some affirmative will action the Clerk was not already taking. have not asked the Court to order any memBer of the iegislature to do anything more than produce already exist. certain emails that they received They have from lobbyists and which therefore also limited their request to seeking the disclosure communications between Koch or his issue during a specified finite period staff 0f email and other and specified lobbyists pertaining to of fime. Compliance with hardly be intrusive and in fact should require no more than Plaintiffs’ a pam'cular request would forwarldjng those emails by a single keystroke. Mamfiu must also be viewed in its histon'cal context and in light of subsequent events. Even the General Assembly did not believe Marwiu exempted it from APRA, years later the General as just a few Assembly unsuccessfully sought to expressly exempt itself from APRA. That legislation (H.B. 1083) (2001)) was vetoed by Governor O’Bannon and never became law. Mamn'u also must be considered in light of the Supreme Court’s morc-recent and detailed pronouncement in Berg, where the Court noted political branch of government fall beyond that not judicial authority, 14 and all disputes within a that actions that fall outside the purview of “core leg'slativc fimction” are fully susceptible to judicial review.“ Unlike Mamrz'u, Plaintiffs’ APRA suit for email communications from lobbyists to Rep. Koch does not implicate any “internél matter 1098. House by House leadership.” 621 N.E.2d leaderéhip has refinquished any claim of total communications by lobbyists’ totally controlled exception or House failing to at connol over the secrecy of exempt such communications either by statutory rule. For each of these reasons, Mamn'u does not support Defend’ants’ contention that APRA-claims Plaintiffs’ 4. As are nonjusu'ciable. B u. Cm alluded to above, Beiy’ is ora' also clearly distinguishable. In that case the Court held that Indiana’s Consu'tution contains a textually demonstrable unqualified) constitutional commitment to the legislature in discipline its own members, such as art. 4, (z'.e, Supreme express and § 14, to allow it to to preclude any judicial role. Beryl also observed that the fines in question had been impbsed pursuant to two rules (House Rules 4 and 36) enacted under the House’s rulemaking authon'ty expressly granted it by Art. 4 It is also bears nofice that the protections afforded to legislators the federal constitution, from those activities art. I, § 6, cl. 1, of a 4, § 10. 990 N.E.2d at by the Speech 0r Debate Clause of axe strictly limited to “legislative acdvifies,” as distinguished “political” nature, such as fundraising, communiau'ng with consu'tucnts, lobbying other branches of government, and constituent services. anster; 408 U.S. 501, 512, 516 (1 972). Thus, communications from lobbyists arc not considered to bc “core legislative fimcu'ons” under that clause, but ancillary political matters arising from a legislator’s desire to placate his U..S'. v. corporate and personal benefactors. Core legislative activities ate confined to those things “generally it,” id. done in a session of the House by one of its members in relation to the business before (quoting Kilboum aTbamJon, 103 U.S. 168, 204 (1881)). “That [leg'slators] generally perform certain acts in their official capacity as [legislators] does in nature.” Gravel u. U.S.; 408 U.S. 606, 625 (1972). 15 not necessarily make all such acts legislative 41 8. By contrast, Defendants point to no House rule declaring that all legislative comfimnications are exempt from disclosure under APRA, much any express and less to unqualified delegation by the Indiana Constitution enablirig the House to conduct its legislative affairs (whether or not related to core legislative funcdons) in secret. B. judicial abstention would contravene tbepub/z'cpo/z'gl oftbe State ofIrzdz'ana infawr of open and tramparerztgavemmem‘ In addition to their legal arguments regarding essentially a policy justiciability, Defendants assert what is argument that the Court should abstain .from deciding this matter because applying APRA to legislators would “have a chilling effect on the legislative process and the Willingness of citizens to energy communicate with legislators.” indusz lobbyists Whose communications are sought are the paid representatives of monied corporate interests influence on public policy. The communications (Memorandum, at 10). However, the not “consfituents”; they axe who wield tremendous and increasing Plaintiffs seek bear directly upon important matters of public concern. Defendants’ professed concerns regarding “stifling” ordinary constituents’ flee speech rights are a red hern'ng. Courts in general have held that the benefits of transparency outweigh any chilling effect such disclosure under state publicrecords laws 196 (2010) (“Also pertinent to our Act] is _analysis is may have. the fact that the See Doe I). Reed, 561 U.S. 186, Washington Public Records not a prohibition on speech, but instead a disciosure requirement. ‘[D]isclosuxe requirements may burden the ability to speak, but they speaking?” (quoting Citizen: United 1). FEC, 558 . . . do not prevent anyone from U.S. 310, 366 (2010)). Defendants’ policy argument is also contrary to 16 APRA’S declaration that the official public policy of this State is that “government is the servant of the people and not master,” and that “all persons are entitled to affairs of government and the official The public policy 0f this to issue a ruling that acts full and complete informatiorl regarding the of those who represent them.” State requires this their I.C. § 5-14-3—1. Court to err on the side of disclosure rather than promotes governmental secrecy, which in turn will foster additional cynicism rather than trust in state government. Defendants also argue that were legislator in the future for “a ” your thinkin in voting on a this Court to apply the law in this case, a request of a copy of every document you reviewed that in any way informed certain bill would have be honored because “there to is no principled reason” for treating that request any differently than the requests at issue in this case. (Memorandum, at 11). This is yet another red-herring argument. Defendants’ hypotheu'cal would not even particulatity” requirement ofAPRA, LC. come A request similar to close to meeting the “reasonable 5-14—3-3(a)(1), and would be properly rejected on that basis alone. C. Rep. Kocb and tbe Caucus are Proper Pam'e: If the Coprt it finds (as it should) that the issues raised in the Complaint are justiciable, must then deal with Defendants’ alternafive motion pursuant to “dismissal TR 12(B) (6) of Plaintiffs’ APRA claims on the grounds that the Complaint upon which relief fails seeking to state a claim can be granted. In that respect, Defendants claim they arc not “public agencies” subject to suit under APRA. (Memorandum, at 13—1 6). Defendants also assert Rep. Koch cannot be sued under APRA because he is an individual legislator, and 17 that the Caucus - is not a proper party because no public records requests were made of it. of these arguments lacks merit, as we (Id. have sued Rep. Koch-in representative. (Complaint 1] his ofida/ c¢adgl as an Indiana 4).5 It is weIl-established that individual in his or her “official capacity,” the suit that the individual holds, not the individual. is qub v. Each tum. will explain in Without conceding that individuals cannot be sued under APRA in capacity, Plaintiffs at 15-16). when suit is their personal state brought against an considered to be filed against the office Somertbazg, 573 N.E.2d 398, 403 (Ind. 1991) (“[A] suit against a state official in his 0r her official capacity is not a suit against the official but is a suit against the official’s office”). Defendants fithher argue that the claims against the Caucus must be dismissed because the public records requests were directed to Rep. Koch, not the Caucus. However, was D). the- Caucus and not Rep. Koch which denied The Caucus also Plaintiffs’ requests. 22a, the wrongful withholding of public records, traceable to the [Caucus’s] allegedly unlawful conduct,” Alexander (Ind. Ct. With respect may be maintained 5 To the to App. 2003), the Caucus against a “public agency.” extent the Complaint Cami 2/. is clearly a 0. is is “fairly PSB Undiflg Com, 800 proper defendant. whether Rep. Koch and the Caucus are profs: parties, only in his official capacity Coxngyfttveni/e (Complaint Exhs. B, defended the refusal t0 disclose before the PAC. (Complaint Exh. E). Therefore, since the alleged injury, N.E.2d 984, 98§ it APRA suits APRA defines a “public agency” as: unclear in that respect, courts assume a government official when sued for acts or omissions arising out of his official duties. Summon, 671 N.E.2d 429, 434 (Ind. Ct. is sued Lake App. 1996). 6 The only case cited by Defendants in support of their positiOn, State Bd. OfAccaum‘: Indiana Univem'y Foundation, 647 N.E.2d 342 (Inc. Ct. App. 1995), is clearly inapposite. There, the defendant 1/. against Whom suit under APRA was filed was a pn'vate 501 (c) (3) charitable organizau'on. 18 A71} board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, exercising arypart of the executive, administrative, judicial, or legislalz’w power of the state. LC. § 5-1 4~3-2(n) (1) (emphasis added). The Caucus and Rep. Koch definiu'on. APRA’s defim'u'on of “public agency” is clearly extremely broad. It meet this only requires that the' — entity being sued exercise “any part” 9f the Defendants exercise a “part of flie . . . legislative legislative power of the power of the state. state.” Here, both Rep. Koch, among other things, serves as Majon'ty Caucus Chair, authors legislation, performs constituent services, votes all on committee and on the House floor, and gives floor speeches, legislation in of which constitute the exercise of “legislau've power.” The Caucus sets the similarly exercises “legislative power.” Through agenda for the Indiana House of Representatives, assigns determines whether legislation will be heard in committee, controls the proceedings on the House floor, and Addidonally, the Caucus has ht : its staff, all separate Rep. of which demonstrates‘that the Caucus Koch and votes to the on House floor, the House floor. from the Indiana General Assembly, association of House Republican legislators as Defendants Clearly, legislation to committees, calls bills calls bills for leadership the Caucus own budget, a website www.indianahousere ublicans.com and employs its is much more than “informal” (Memorandum, at 16) contend. the Caucus each “exercise” a “part of the legislau'Qe power of the state” of Indiana and as such they are “public agencies” for purposes of APRA. Accordingly, Defendants’ amenable to suit TR 12(8) (6) rnofion to dismiss on the grounds that they are not under APRA should be denied. 19 ,. Cilizem Action Coalition and Common Cause C. Defendants seek to dismiss they each lack standing. (Memorandum, unchallénged standing because (Complaint 1m 6-7). somewhat of an Plaintiffs it }}}} a/Jo baue standing Common Cause and CAC on the grounds that at 12-1 3). It should be noted that Plaintiff EPI has filed the public records requests that are at issue in this This renders the dispute over Common Cause’s and CAC’s aca'demic exercise. Nevertheless, for the reasons Suit. standing below they are proper parties to this action. With respect “[a]ny person. . . f0 the prayer for a declaratory judgment, I.C. § 34-1 4-1-2 provides that whose rights, status, may have determined any or other legal relations are affected by a statute. question of construction or validity arising under the and obtain a declaration of rights.” There is thus CAC to have filed the public records requests declaratory relief. Clearly, Common Cause’s no requirement Common at issue in this case in order for and CAC’s “rights, status, rcladons” are affected by Dcfcndants’ refilsal to comply with entitled to for have those rights adjudicated and declared by . . . . . statute . . Cause and them t0 obtain or other legal APRA such that they are this Court. Unlike the United States Constitution, the Indiana Constitution (Sontains no “case or controversy” requirement. State ex rel Cz'lz‘adz'ne Accordingly, there a matter is no 0. HVDOT, 790 .N.E.2d 978, 979 (Ind. 2003). constitutional standing requirement in Indiana. Indiana courts do, as of restraint, require that the parties to a lawsuit “have a personal stake in thc outcome 0f the litigation” and show “that he or she ha‘s sustained or was in immediate danger of sustaining, some direct injury as a result of the conduct at issue.” Sboumé 20 v. Stirling, . 621 N.E.2d 1107, 1109 (Ind. 1993). In perfomfing standing analysis, our Supreme Court this has however cautioned that courts should “not pennit excessive formalism to prevent necessary judicial involvement to resolve it.” Cilfadz'ne, Where an actual controversy exists Izpm, 790 N.E.2& at 979 (quoting IDEM I). we will not Shirk our duty Chemical Wane Management, 643 N.E..2d 331, 337 (Ind. 1994)). Here, there is an actual controversy over whether APRA requires disclosure of the lobbyist emails being sought. this litigation CAC and Common Cause each have a stake in the outcome. of and have Suffered injury a's a result of Defenda'nts refusal of the requested records. Both are advocates for open, in the State of Indiana; both have either legislature in the past grounds that APRA does not apply to them; and both wish to make similar APRA requests plaintiff actually 14-3-9(c). and transparent government made public records requests of members of the Vaughan, 1 1I2-4 and Affidavit of Kerwin Olson, t0 the specific records sought herein, there requirement permit inspecu'on and/or have refrained from doing so because of their now disavowed in the future. (Affidavit ofjulia As ethical, 'to is make the request that they While that: is is 11113-5). no requirement in APRA that a the subject of the lawsuit; the only statutory were “denied the right to inspect or copy a public record.” LC. § 5- CAC did not file a separate public records request, it joined with EPI in a complaint before the PAC pertaining to Defendants’ refusal to disclose the records. (Complaint Exh. G). Both and other documents Common Cause and CAC wish to review the requested emails relating to the distributed'generan'on bill (House Bill 1320 (2015)), and both have been denied the fight to d9 so by virtué of Dcfendants’ refusal to release them. 21 W Common (Vaughan Affidavit 114 and Olson Affidavit 1[6). Therefore, both are properly named plaintiffs under Cause and CAC I.C. § 5-14-3-9(e). WHEREFORE, and for the reasons set forth herein, Plaintiffs respectfully submit that the Court should deny Defendants’ motion to dismiss nonjusticiable and Defendants’ alternative Plaintiffs’ APRA claims as TR 12(B)(6) motions to dismiss. Respectfully submitted, fl/M William R. éfih, #7325—49 David T. Vljnk, #30182-45 FILLENWARTH DENNBRLINE GROTH & TOWE, LLP MW 429 E. Vermont Indianapolis, Street, Suite 200 IN 46202 Phone: (317) 353-9363 Fax: (317) 351—7232 E-Mafl: dvlink fd aborlaw.com Altommfor the Plainlgflt CERTIFICATE OF SERVICE hereby certify that a copy of the foregoing Plaintiffs’ Response in Opposition to Defendants’ Motions to Dismiss was served on the following parties via U.S. Mail and via I email transmission this 27th day ofJuly, 2015. Geoffrey Slaughter Russell Menyhart Taft Stettinius 8c Hollister One Indiana Square, Ste. 3500 Indianapolis, IN 46204 fl W— wmiam R. 22 é‘réth STATE OF INDIANA IN ) THE MARION SUPERIOR COURT )ss: . COUNTY OF MARION CAUSE NO. ) CITIZENS ACTION COALITION OF INDIANA; ENERGY AND POLICY INSTITUTE; and COMMON CAUSE OF INDIANA, 49D14-1 504—PL—12401 'r D Fifi???” Plaintiffs, Wm VVVVVVVVVVVVV OLE -VS- ERIC KOCH, and INDIANA REPUBLICAN CAUCUS, m wflmfif) cmufi C op 11m MARION HOUSE ~ Defendants. AFFIDAVIT OF KERWIN OLSON Comes now the Affiant, Kerwin Olson, who states the following under the penalties of perjury: 1. based 0n 2. I am over the age of eighteen, mentally competent, and I make this affidavit my personal knowledge. I am the executive director 0f the Citizens Action Coalition, on behalf of Hoosier citizens and consumers regarding energy which advocates policy, utility reform, health ‘ care, pollution prevention, 3. and family farms. Some 0f the ways in which we seek to achieve our objectives out public education campaigns and creating public awareness. As such, we is by carrying advocate for Openness and transparency in Indiana government. 4. The Citizens Action Coalition has 0f the Indiana General Assembly in the past, made public records requests of members which have been denied 0n the grounds JUL that 27 2015 the General Assembly 5. The is allegedly not subject to Indiana’s public records laws. Citizens Action Coalition has refrained requests of the General Assembly due from the public records law. from making public records General Assembly’s position t0 the that: it is exempt I 6. The CitiZCns Action Coalition records requested of Representative records requests ofjanuary the opportunity to 7. was Koch by the 2015, February 1 6, 2, interested in obtaining Energy Policy 2015, and do so by the Defendants’ denial of the and reviewing the Institute in March 9, its public 2015, but was denied requests. Further affiant sayeth not. Iverify under the penalties of perjury that the foregoing representations are tfue to I I the best of my knowledge and belief. [a Kerwin Olson, Executive Director Citizens Action Coalition STATE 0F INDIANA COUNTY 0F m M ) I o ) U SS: ) Subscribed and sworn to before me, a Notary Public, in and for the State of Indiana, County 0f fl! 4 IL I 0 M , on thisgtffiday of THLZ {amdm WM: iqworm CL: NotaryPublic County of Residence: My Commission Expires: m AK! Y' o 1U l 8‘ I 3 UE , 2015. “vi STATE 0F INDIANA IN THE MARION SUPERIOR COURT ) )ss: COUNTY 0F MARION CAUSE No. ) CITIZENS ACTION COALITION 0F INDIANA; ENERGYAND POLICY INSTITUTE; and COMMON CAUSE 0F INDLANA, 49D14—1504PL—12401 ) ) ) FEM: , ) > Plaintiffs, ) ) V s- _ £377 D C JUL 2 7 20 75 234 g ERIC KOCH, and INDIANA HOUSE REPUBLICAN CAUCUS, . Mme” @agk ) WU'Tcing ) ) Defendants. ) AFFIDAVIT OF QLIA VAUGHN Comes now the Affiant, Julia Vaughn, who states the following under the penalties 0f perjury: 1. based on 2. is I am over the age of eighteen, mentally competent, and I make this affidavit my personal knowledge. I am the Policy Director of Common Cause Indiana. Commdn‘Cause Indiana a grassroots organization advocating for open and ethical gyovér‘nment in. the State of Indiana. 3. Common Cause wishes to make public records requests of members of the General Assembly, but has refrained from doing so due to the General Assembly’s position that it is exempt from the public records 4. Common Cause wishes to Representative law. obtain and review the records requested of Koch by the Energy Policy Institute in its public records requests ofJanuary JUL 2 7 V2015 16, 201 5, February 2, 2015, and March by the Defendants’ denial of the 5. I 9, 2015, but has been denied the opportunity to do s0 requests. Further affiant sayeth not. verify under the penalties of perjury that the foregoing representations ate true to the best of my knowledge and belief. Policy Director, STATE 0F INDIANA Common ause Indiana ) ) COUNTY 0F 1M Aged SS: ) Subscribed and sworn to before me, a Notary Public, in and for the State of Indiana, C0unty 0f HENDR 'C’K5 , on ngday of this MIQ MIA LIU CHAPIN NOTARY PUBLIC SEAL m. County of Residence: My Commission Expires: iv ( I , Notary Public 19. 2022 H EUD‘EJ (JCS heap 3%. >0 n 2015. ‘ .1, I STATE OF INDIANA MY comgfisnou EXPIHE§ ' 32E) , STATE OF INDIANA IN ) THE MARION SUPERIOR COURT )ss: COUNTY OF MARION CAUSE NO. 49D14—1504—PL—12401 ) CITIZENS ACTION COALITION 0F INDIANA; ENERGY AND pOLICY INSTITUTE; and COMMON CAUSE 0F INDIANA, : Plaintiffs, kQP VVVVVVVVVVVVV (\3 NCoA q NS.Ln _vs_ ERIC KOCH, and INDIANA HOUSE REPUBLICAN CAUCUS, Defendants. MOTION FOR PARTIAL SUMMARY UDGMENT Comes now the Plaintiffs, Citizens Action Coalition, Common Cause of Indiana, by move summary judgment in for partial support of said motion, 1. In e: :eq. their undersigned counsel, who, pursuant to Trial Rule 56, their favor on theirrequest for declaratory relief. In Plaintiffs st'ate as follows: Plaintiffs filed their Act, I.C. 5-14—3—1 2. their Energy and Policy Institute, and Complaint under the Indiana Access to Public Records (“APRA”); on April 15, 2015. Complaint, Plainfiffs sought, inter alia, a declaratory judgment that Defendants Repregentative Eric Koch and the Indiana House Republicgn Caucus arc subject to-APRA. 3. and Prior to theirjune 26, 201 5, motions to dismiss, Defendants have repeatedly steadfastly denied that they arc subject t0 APRA. (See Complaint Exh. B (“['-I]he Indiana JUL 2 7 .2015 Access to Public Records Law, located at-IC 5-14—3, does not apply to the Indiana General Assembly.”); Exhs. D & E). The Indiana Public Access Counselor 4. APRA. Defendants are, indeed, subject to 2015, the PAC ruled, “[l]t is the 6, Assembly is subject £0 the Access (“PAC”)- on two o-ccasions ruled that the (Complaint Exhs. E & H). Specifically, on March Opinion of the Public Access Counselor that the General to Public Records Act.” (Complaint Exh. E). On Apdl 1, 2015, in response to Defendants’ continued insistence that APRA docs not apply to them, the PAC noted, “There is no authority in case law or statute exempting the Indiana Assembly from the APRA.” (Exh. In 5. 12(B) (1) and Specifically, (6), their H n. General 1). memorandum in support of their modons to dismiss under TR Defendants for the very first time admitted that they are subjéct to Defendants stated, “The- legislative bodies, including ilse/j?’ contained in the section of the tbe Pab/z'c Recordr Act z‘o General Assembly chose to apply the'Act to certain (Memorandum, memorandum iixe/fdoes APRA. at 7) titled, not make Plaintiffs’ (emphasis added). This admission was “The legislature’s legal claims determination to extend any more justiciable.” (Id) (emphasis added). TR 56(c) permits a tn'al court to render summary judgment where the 6. “pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, any other matters on which there is no genuine judgment as [a party] relies for purposes of the issue as to any material fact and that the and motiou” demonstrate “that moving patty is entitled to a a matter of law.” “The purpose of summary judgment is to terminate causes 0f action which present as aumattcr (Ind. Ct. no genuine of law.” Fae y. issue as t0 any material Trustee: oftbe Rumb/eton fact and which may be determined Fm Metbodixt Cburcb, 657. N.E.2d 745, 748 App. 1995). While Defendants contend they can choose not to follow 7. APRA and that the .on separation—6f—powers principles (which is Court cannot force them to do so based currently under dispute in another pending motion), that threshold issue of whether applicability, 8. upon which defendant’s for. the very first time during the course of this APRA applies. Plaintiffs’ there adjudication. See (holding the an issue separate from the APRA even applies to them. .On the issue ofAPRA’s Defendants have admitted, litigation, that is trial is no request for a declaratory judgment thus presents a pure legal issue factual dispute,.making this case entirely appropriate for sumrfiary Fark.ci’v. Cigy 0f Warsaw, 257 Ind. 237, 273 N.E.2d 856, 857—58 (Ind. 1971) court “was justified ifi rendering judgment” where the complaint and Fhe modon to issue before thq court dismiss showed “there was a legal one). As [was] no contest of the facts” and the only a matter of law, this Court must conclude that APRA applies to the General Assembly and its members, including Defendants. WHEREFORE, Plaintiffs respectfully request that the Court grant their motion for partial summary judgment and Defendants. enter a declaratory judgment thatAPRA applies to the F) Respectfully submitted, flflW William R. Groth, #7325-49 David T. Vlink, #30182-45 FILLENWARTH DENNERLINE GROTH & TOWE, LLP 429 E. Vermont Saeet, Suite 200 Indianapolis, IN 46202 Phone: (317) 353—9363 Fax: (317) 351—7232 _ E—Mail: wgroth@fdgtlaborlaw.com dvlink@fdgtlaborlaw.com Aflomgufor tbe Plaintgfifi' CERTIFICATE OF SERVICE hereby certify that a copy of the foregoing Plaintiffs’ Motion for Partial Summary Judgmept was served on the following parties via U.S. Mail this 27th day ofjuly, 2015. I Geoffrey Slaughter Russell Menyhart Taft Stettinius ‘ & Hollister One Indiana Square, Ste. 3500 Indianapolis, IN 46204 i flzflgt William R.lfioth r V‘ r’~ CIVIL NOTICE MARIbN SUPERIOR COURT, CIVIL DIVISION CITIZENS ACTION COALITION OF INDIANA v. 14 49D14—1504—PL-012401 ERIC KOCHJNDIANA HOUSE REPUBLICAN CAUCUS T0: File Copy ATTORNEYS William R Groth - . Geoffrey G. Slaughter; Russell Charles Menyhart; Geoffrey G. Slaughter; Russell Charles Menyhart PARTIES PLAINTIFF / PETITIONER CITIZENS ACTION COALITION OF INDIANA DEFENDANT/ RESPONDENT ERIC KOCH; INDIANA HOUSE REPUBLICAN CAUCUS EVENTS: File Entry Date Stamp/ Event and Order Signed/ Comments Hearing Date Hearing Scheduling Activity (Hearing 0n Motion 07/01/201 5 08/1 1/2015 Distribution: William R Groth Geoffrey G. Slaughter Russell Charles Menyhart Printed 7/1/20l5 [:48 PM at 9:00 AM.) to Dismiss scheduled for Appointment 0f Special Judge State 0f Indiana, In Superior Court ) County 0f Marion, gSFIL E D Term 2015 ~ I wry, OLE I, Robert R. Altice, unable t0 try Jr., z Q) 2015 gum Cause N0. 49D05—1504-PL-012401 w gum! oquAmou cmcufiCO Judge of Superior Court ()5, of said above named County and State, being cause numbered 49D05—1504—PL-012401, Citizens Action Coalition 0f Indiana, and Energy and Policy Institute vs. Eric‘ Koch and Indiana House Republican Caucus, because 0f a change 0f venue therein taken from me, d0 hereby designate and appoint the Honorable Judge Osborn, an attorney 0f the bar of Marion County, Indiana, to preside and try said fl: caus ( Judge 0f Superior Court 05 State of Indiana, ) ) ss: County of Marion, I, ) James Osborn, Judge of Superior Court 14, d0 solemnly swear that will I support the Constitution of thc United States and of the State of Indiana and wiil faithfully discharge the duty 0f Special Judge in cause numbered 49D05-1504-PL—012401, entitled Citizens Action Coaiition of Indiana, and Energy and Policy Institute vs. Erick Caucus, so help me God. W Koch and Indiana House Republican gamfi @RQOK— blltJK Judge 0f Superior Court 14 2b J r . Subscrlbcd and sworn t0 before . me thxs "K/r'“ ‘; day of fiém , 2015. / By Deputy Clerk IV) ‘.__/ STATE OF INDIANA IN THE MARION SUPERIOR COURT ) SS: ) COUNTY OF MARION CAUSE NO. 49D14-1504-PL—12401 ) CITIZENS ACTION COALITION OF INDIANA, ENERGY AND POLICY INSTITUTE, and COMMON CAUSE OF INDIANA, FILED 211‘: IJUN 26 m Plaintiffs, 2015 flaw“! OFHEMRRION OlRClWl’ OOU vvvvvvvvvvvvv v. ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, Defendants. Defendants’ Rule 12(B) Motion to Memorandum in Support of Dismiss for Lack of Iusticiability, and Alternatively, for Failure to State a Claim M92 Plaintiffs Codé §§5-14-3-1 bring this lawsuit et seq. (the ”Act”). under Indiana’s Access to Public Records Act, Ind. They seek a judgment from this Court state legislator, Representative Eric directing a Koch, and the Indiana House Republican Caucus to allow the inspection and copying of specified e-mail and other communications. Plain- tiffs’ claims should be dismissed with prejudice for two independent reasons. m“ 2 g 2M5 T First, Plaintiffs workings of the lators, request a judicial decree that legislature. Legislator would interfere With the internal communications—whether with staff, other legis- or the public at Iarge—are an integral part of their constitutional authority to en- act laws. Such communications implicate one core legislative function of gathering in- formation concerning proposed legislation. Under separation-of—powers principles, courts are not t0 meddle in the affairs 0f ment. As our Supreme Court missed under Rule Second, judicial relief and on this is govern- such Claims are non—justiciable and must be alternatively, Plaintiffs’ allegations fail t0 state a claim dis- file upon which Two 0f the three Plaintiffs lack standing under the Act be— the disputed puinC-records requests that are the subject of this lawsuit. In addition, Representative cause neither state 12(B)(1). can be granted. cause they did not directs, an equal, coordinate branch 0f Koch and the Caucus are not subject a ”public agency”. And, finally, the Caucus is to the Act be- not a proper defendant record because the requests at issue here were directed solely at Representative Koch. Thus, Plaintiffs’ claims also should be dismissed undér Rule 12(B)(6). Background Facts and Procedure On January 16, 2015, Plaintiff Energy and Policy Institute (”Institute”) from Defendant Koch specified correspondence between Koch and outside entities regarding a particular bill he filed—House Bill his staff sought and certain 1320—inc1uding emails, draft records, notes, minutes, scheduling records, text messages, and all other corre- spondence and records. [Complaint, ana House District 65. [Id., 314.] members of the Indiana House ‘]I6.] Koch is The Caucus the elected representative from Indi- consists of all currently serving Republican of Representatives. [Id., $5.] On February 2, 2015, the Institute requested from Koch the same information between Koch and additional outside On March 9, 2015, ”[a]ny and all entities. [Id., 117.] the Institute submitted a broader request to emails, correspondence, or other documents that pertain ing,’ ’solar energy,’ ’distributed generation,’ ’electric fairness,’ that were created from September outside entities. [Id., Exhibit F.] 1, Koch seeking 2014, to the present,” to ’net meter- or ’fixed charges,’ and between Koch and various A11 three of the Institute’s requests were denied. [Id., Exhibits B, DJ] Indiana’s Public Access Counselor issued separate advisory opinions ‘HS, 11,- id., Exhibits t0 the legislature particular [1d,]; define their E and H] [id.] addressing, and whether the requests and concluding, on the [sic] among own work product” to [see id., other things, whether the Act applies Koch were sufficiently specific and merits, that the legislature ”has the discretion to [id., ExhibitH at 3], referring to the Act’s legisla— tive-work-product exception to public-records disclosure. See LC. §5-14-3-4(b)(14) (ex— empting from disclosure staffs of the ‘Plaintiffs ”[t]he work product of individual members and general assembly.”). did not attach the third denial as an exhibit to their Complaint. the partisan On April 15, 2015, all three Plaintiffs—the Institute along with Citizens Action Common Cause—filed this lawsuit against Koch and the Caucus for vio- Coalition and lating the Act by them failing to allow to inspect and/or copy the records the Institute had requested from Koch. Legal Standard Trial over which Rule 12(B)(1) it is a procedural vehicle for asking a court to dismiss claims lacks subject-matter jurisdiction distinction between jurisdiction notes, Black’s II that are non—justiciable. ”The and justiciability is a fine one,” our Supreme Court ”and has been confused in the 2013). Jurisdiction is a court’s and claims past.” Berry power Law Dictionary 927 (9th ed. v. Crawford, 990 N.E.2d 410, 417 (Ind. to decide a case or issue a decree.” Id. (quoting 2009)). Iusticiability is the ”quality or state of being appropriate or suitable for adjudication by a court.” Id. at 418 (quoting Black’s Law Dic— tionary 943). Indiana courts have repeatedly held that separation—of—powers principles may render a dispute non—justiciable. bility concern arises when courts branch of government”). See N.E.2d 1097, 1098 are asked to review internal matters of a coordinate also State ex rel. (Ind. 1993) (issuing lawsuit because ”further litigation judicial interference to intervene ”only See Berry, 990 N.E.2d at 418 ("a separate justicia— Masariu v. Marion Super. Court No. 1, 621 permanent writ of prohibition in public-records would amount to with the internal operations of the constitutionally impermissible legislative branch”). Courts are where doing so would not upset the balance of the separation of powers.” Berry, 990 N.E.2d at 418. Dismissal under Rule 12(B)(1) cause the judicial lative relief Plaintiffs branch—namely, a is warranted here be- seek squarely implicates internal workings of the Iegislator’s communications concerning proposed legis- legislation. Rule 12(B)(6) provides that courts are to dismiss claims that fail to state a claim upon which judicial relief can be granted. Dismissal under Rule granted where Morton—Pinney it appears that ”under no set of facts could v. Gilbert, plaintiffs 646 N.E.2d 1387, 1388 (Ind. Ct. App. 1995). tests the legal sufficiency of the claim, not the facts supporting Clubs ofNorthwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). is 12(B)(6) warranted under Rule 12(B)(6) because Plaintiffs have it. should be be granted relief.” A motion to dismiss Trail. v. Boys and Girls On this record, dismissal also failed to state a legal claim up- on which relief can be granted. Arggment I. Plaintiffs’ claims are non-justiciable 12(B)(1') A. and should be dismissed under Trial Rule because they implicate separation—of—powers principles. Courts may not review actions within the exclusive province of the General Assembly. The Indiana Constitution divides state government into ”three separate depart— ments”: ”the Legislative, the Executive including the Administrative, and the Judicial”. Ind. Const. art. 3, §1. N0 official within one department ”shall exercise any of the func- tions of another”, unless the Constitution itself expressly provides otherwise. Id. Under our Constitution, legislative power is plenary. ”Each House shall have all powers, necessary for a branch of the legislative department of a free and independent Such plenary authority includes the express power to ”determine State.” Id. art. 4, §16. its rules of proceeding”, fidential. id. art. 4, and to determine what matters are to remain con- ”The doors of each House, and of Committees of the Whole, open, except in such cases, art. 4, §10, as, in the opinion of either House, shall be kept may require secrecy.” Id. §13. Mindful of (and obedient to) our Constitution’s division of governmental powers, is Indiana courts decline to interfere in legislative Berry v. affairs. A prominent recent example Crawford, 990 N.E.2d 410, the 2013 legislative fines case, in preme Court admonished that Which our Su- ”when, as here, the Indiana Constitution expressly signs certain functions to the legislative branch without any contrary constitutional qualification or limitation, challenges to the exercise of such legislative justiciable In State ex rel. Id. at 413. Acker v. Reeves, 229 Ind. 126, 95 N.E.2d 838 (1951), a lawsuit seeking a court order for a recount of votes for state legislative office, the court, powers are non- and the doctrine of separation of powers precludes judicial consideration of the claims for relief.” tered a as- Supreme Court en- permanent writ of prohibition and an absolute writ of mandate against the trial and required that all orders in the case be expunged, because the Constitution’s grant of power to judge the ”elections, qualifications, and returns” of legislators, Ind. Const. art. 4, §10, belongs solely the General Assembly. ”The Constitution has defined a domain upon which courts may not tread.” 95 N.E.2d 840 (Citation omitted). at And in Musariu, 621 N.E.-2d 1097, the public-records case, in which the Clerk of the House of Representatives was sued to gain access to House voting records, Court issued a permanent writ of prohibition against the of this case in the trial court ”[Flurther litigation trial court. would amount to consfitutionally impermissible judicial interference with the internal operations of the legislative branch[.]” B. The legislature’s determination to extend the Public self does not make Plaintiffs’ legal claims The General Assembly chose cluding itself. the to Id. at 1098. Records Act to it- any more justiciable. apply the Act to certain legislative bodies, in- See LC. §5-14-3-2(n)(1) (defining ”public agency” to include ”[a]ny board, commission, department, division, bureau, committee, agency, or authority, by whatever name power 0f the state”). But this office, instrumentality, designated, exercising any part of the- statutory enactment . .. legislative is legally insufficient to overcome the separation—of—powers limitation on the Court's ability to grant Plaintiffs relief under the Act. As our Suplieme Court holds, mere statutes cannot trump tional obligation refrain under Article 3, from interfering Secfion 1 —the distribution—of-powers provision—to in those matters example, the Court in Berry v. the judiciary’s constitu- committed by Article 4 to the legislature. Crawford, the legislative-fines case, held it For would be con- stitutionally impermissible to House apply Indiana’s Wage Payment Statute to members of the of Representatives. To apply the provisions of the Indiana Wage Payment Statute to the House of Representatives in this action would be to undermine the constitutional authority of the House over the imposition and enforcement of legislative discipline and vest it in the courts, in contradiction of the separation of powers doctrine. 990 N.E.2d at 420. The reason, according to the Court, is that no express provision limits the legislature’s exclusive authority to discipline This purported statutory limitation [the serve as a means its constitutional members. Wage Payment Statute] cannot for the courts to consider challenges to legislative action compel attendance and punish disorderly members where there exists no constitutional limitation on the House’s express constitutional power to to take such actions. Id. (emphasis added). In Masarz'u, the Court Records Act did not employed the same rationale in holding that the Public entitle litigants to obtain access t0 House voting records through the courts. ”If the legislature wishes to authorize sanctions against itself press or public alleging improper legislative secrecy, such sanctions determined and imposed solely by the legislative branch itself, upon a claim would have t0 by be without recourse to the courts.” 621 N.E.2d at 1098. And in Reeves, extent it Code was unlawful to the authorized courts to conduct a recount of the votes for state legislative office. the Court held that Indiana’s Election ”To the extent the statute in question seeks to grant this power [House's exclusive pow- er to judge the election of tional its and void.” 95 N.E.2d The only exception own members] to the courts, it is necessarily unconstitu- at 840. (inapplicable here) to this rule of judicial hands~off is where a specific constitutional provision otherwise limits the legislature’s plenary authority. ”[W]here a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limitation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution.” Berry, 990 N.E.2d at 421 (emphasis added). Otherwise, the general rule stands and operates to foreclose judicial interference, even when a statute on its face seems to contemplate a judicial role. As the Institute’s requests make legislative function of enacting laws. clear, the records sought here implicate the core The disputed requests seek communications con- cerning specific legislation proposed by Representative Koch. Nothing mental to a weighing legislator’s central role their merits and more funda— than his considering ideas for proposed legislatiOn, de-merits, hearing from those likely to be affected, and then undertaking to transform worthy concepts into specific legislative steps entails communications with others, limited to one’s colleagues, constituents, Plaintiffs' is somefimes many and staff. text. Each of these others, including Just as in Berry and similar but not cases, claims seeking access to these communications are ”non-justiciable and, as a constitutional and prudential matter, consideration of [their] requests for Judicial intervention C. cess The House it is improper relief.” for the judicial branch to entertain 990 N.E.2d at 421. would have on the legislative procommunicate with legislators. a chilling effect and the willingness of citizens to of Representatives has a longstanding practice of treating legislative correspondence as confidential and not subject to public-records disclosure. Not only this practice rives is not subject to judicial review, for the reasons stated previously, but it de- from the House’s wholesome, common-sense belief that communications with leg— islators are fostered if the likely they are not subject to public disclosure. outcome here, if Plaintiffs were to succeed A contrary practice—and with their lawsuit—would have the effect of stifling the very communications with and between legislators that are es- sential to the legislative process First and that are fundamental to citizens exercising their Amendment right to petition the government for a redress Such an outcome also would, ironically, government Plaintiffs seek to promote. islators were all fair proportionately sentatives, undermine the very interests If letters, game in'a public-records on consu'tuents who have the of grievances. in open emails, voicemail messages, etc, to leg— lawsuit, their disclosure least direct would fall dis- access to their elected repre- whether because of distant geography or otherwise. Under that scenario, lobbyists (whose communications Plaintiffs claim to be interested in obtaining here) could readily alter their behavior to avoid public scrutiny by communicating with 10 legis- lators and their staff through a a person—to-person phone call medium not subject to a public—records request, such as or an in-person meeting. Subjecting legislative communications to judicial scrutiny also additional, troubling separation-of—powers questions. to demand ing Suppose the press or public were access to the literature—articles, books, reports—a legislator read before vot- on various topics: ”Representative Smith, ment you reviewed that in provide intrusive inquiry me with a copy of every docu— any way informed your thinking in casting an Aye vote 0n House Bill XYZ during the most recent legislative by courts into session.” It is the legislative process. Yet held t0 be judicially cognizable, there ical would open up is hard to if Plaintiffs’ no principled reasonfor imagine a more claims here were treating .the hypothet- public—records request any differently. Even Thomas Jefferson, no less, believed that legislators’ communications should be immune from ”cognizance or coercion of the coordinate branches”, as he made in an eloquent passage. [I]n order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was part of the COmmon law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full, and unawed by any: that so necessary has this intercourse been deemed .. that the correspondence between the repre— sentative and constituent is privileged to pass free of expense through the channel of the public post, and that the proceedings of the legislature have been known t0 be arrested and suspended at times until the Representa. , 11 clear ,v.~_. I N l tives could go home to their several counties and confer with their con- stituents. 8 Works of Thomas Jefferson 322-23 (Ford ed. 1904) (quoted in Des Moines Register v. Dwyer, 542 N.W.2d 491, 499 (Iowa 1996) (finding that detailed legislative phone records are not subject to open-records laws because they are integral to legislative power to enact 1aws)). In sum, the short answer to Plaintiffs’ lawsuit is that not every legal right, includ- ing the right to inspect and copy public records under the Act, includes a corresponding judicial remedy. court of public Plaintiffs’ Plaintiffs’ remedy here, opinion—meaning the therefore, lies not in a court of law but in the political process and, ultimately, the ballot box. claims seeking relief from this Court under the Act are non-justiciable and should be dismissed under Rule 12(B)(1). be dismissed under Rule 12(B)(6) bea claim upon which judicial relief can be granted. Alternatively, Plaintiffs’ claims should II. cause they fail to state A. Plaintiffs Citizen Action Coalition and Common Cause did not seek public records from any Defendant and therefore lack standing to suit under the Act. Dismissal for lack of standing under Rule 12(B)(6) tiff file cannot be granted relief under any is appropriate where a plain- set of alleged facts. City ofNew Haven v. Allen County Bd. of Zoning Appeals, 694 N.E.2d 306, 311 (Ind. Ct. App. 1998). The Act authorizes ”[a] person who has been denied the right to inspect or copy a public record by a public agency” to file an action where the denial occurred to compel inspection of the 12 records. LC. §5—14—3—9(e). A party that was not denied the right to inspect a public rec- ord has no cause of action under the Act. The Institute filed three requests of Representative ords under the Act. [Complaint, Exhibits A, C, nor alition F.] Koch seeking to inspect rec- However, neither Citizens Action Co- Common Cause participated in any of the three requests. Because Citizens Action Coalition and Common Cause did not seek any public records here, they have not been ”denied the right to inspect or copy a public record" and, therefore, lack standing to bring this action under Section 9(e) of the Act. B. As lawsuit is The Act can be enforced makes the governing statute against only a "public agency”. clear, the proper defendant in a public~records the entity— the ”public agency” —from which the records were sought. ”A person who has been denied the right to inspect or copy a public record by a public agency quest is may file an action . .. to éompel the public agency denied, the public agency The term ”public agency” may be sued is to permit . . ..” Id. §5-14-3-9(e). If a re- such inspection or copying. defined to include ”any board, commission, de- parhnent, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part 0f the executive, administrative, judicial, or legislative power of the state.” that are public agencies als”. I.C. §5-14-3-2(n)(1). Notably, the list of entities under the Act does not include natural persons or ”individu- The one exception is found in Section 2(n)(6), 13 which provides that ”public agency” includes é ”law enforcement agency”. Only in defining what can qualify enforcement agency does the Act specify that certain natural persons as a law- who are law- enforcement officers also are public agencies under the Act. Section 2(n)(6) contains an exhaustive list of the natural persons who can qualify as a ”public agency" —namely, ”prosecuting attorneys”, ”members 0f the excise police division” of the Alcohol and Tobacco Commission, ”conservation ”gaming control lators are not officers" of the officers” of the Indiana DNR, and ”gaming Gaming Commission. Id. agents" and §5-14—3—2(n)(6). Legis- among the natural persons recited in Section 2(n)(6) who can qualify as public agencies. Other than this narrow law—enforcement exception, the Act does not authorize public—records claims against individuals or employees. This party is who serve as governmental officers, officials, not an oversight. The Act specifically defines ”person” —i.e., the who seeks public records from a public agency—more broadly than it defines ”public agency”. ited liability The term ”person” is defined as ”an individual, a corporation, a lim- company, a partnership, an unincorporated entity.” Id. §5-14-3-2(I). that a ”person” ”Person” is used throughout may inspect and copy 14-3-3. If the legislature had intended association, or a the. statute the public records of governmental in provisions indicating any ”public agency”. to authorize public-records requests records lawsuits against individuals and unincorporated associations, cluded them in the definition of ”public agency”. But 14 it did not. it Id. §5- and public- would have in- Because Representative Eric Koch 1. is not a ”public agency”, the complaint against him must be dismissed. The Act allows a request for inspection to be Id. §5-14—3-3(a). If a request has against the public agency. ant is only a public agency. been denied, the aggrieved person may Id. §5-14-3-9(e). not a ”public agency”. filed against file an action The Act does not apply if the named defend- State Bd. ofAccounts v. Indiana University Foundation, 647 N.E.2d 342, 354 (Ind. Ct. App. 1995) (finding that IU Foundation is not subject to Act because it is not a public agency). Under the Act, a proper request for public records is directed to an agency, not to an individual within the agency. Although agencies necessarily the individuals are not public agencies subject t0 the Act. include natural persons within a statutory definition in this very Act when defining ”person” The legislature’s to include failure to include natural ”public agency”, see id. §5—14—3-2(n), act through individuals, The legislature knows how when it wants to. Indeed, an ”individual”. LC. it to did so §5—14—3-2(1). persons within the general definition of means Representative Koch does not qualify as a ”public agency” under the Act. Plaintiffs’ claims against him should be diSmissed. 2. Nor is the Caucus a public agency, so must be dismissed. The term ”caucus” Door Law, LC. litical is not defined in the Act. §§5-14—1.5-1 et seq., the claims against it, too, A related statute, Indiana’s Open defines ”caucus” as ”a gathering of members of a po- party or coalition which is held for purposes of planning political strategy and 15 holding discussions designed to prepare the members for taking official action.” Id. §§- 14-1.5-2(h). Defendant Caucus tives. [Complaint, 115.] refers to Republican members of the House of Representa- The problem for Plaintiffs is that the gaI entity capable of suing or being sued, but Caucus is not a separate an informal, "unincorporated association” of House Republican legislators. Cf. Assoc. Press v. Senate Republican Caucus, 951 P.2d 65 an ”unincorporated association”). cussed previously concerning natural persons, the legislature knows how to (Mont. 1997) (finding that party caucus is ”unincorporated association” within a statutory definition specifically when defining when it wants As disinclude an t0. It did so ”person” in the Act—those entitled to seek public records from a public agency— to include an ”unincorporated legislature’s failure to 1e- do so association”. in defining ”public agency” means the Id. §5-14—3-2(1). Caucus is The not a ”public agency” under the Act. Thus, Plainfiffs’ Claims against the Caucus should like- wise be dismissed. C. No Plaintiff sought public records from the Caucus. Finally, Plaintiffs’ claims against the lic records Caucus also fail because no request for pub~ was directed to it. As explained above, records lawsuit is the entity the proper defendant in a public— from which the records were sought. Because the Institute’s public—records requests were directed solely to Representative Koch, the Caucus 16 is not a proper defendant here, even if it were a ”public agency” (and Caucus should therefore be dismissed against the it is not). Plaintiffs’ claims for this reason, too. Conclusion For all 0f these reasons, the Court should dismiss with prejudice Plaintiffs’ claims as non-justiciable under Rule and thus implicate a core posed 12(B)(6) because lack standing under the Act; agency”; and (iii) communications legislative function 0f gathering information concerning pro- legislation. Alternatively, Plaintiffs’ claims under Rule lic 12(B)(1) because they relate to legislator (i) Plaintiffs Citizens (ii) the Caucus should be dismissed with prejudice Action Coalition and Common Cause Defendants, Eric Koch and the Caucus, are not a ”pub- is not an entity from which any Plaintiff sought public records here. R7ectfully submitted, '1 Geoffrey Slaughter Russell Menyhart (25018—49) TAFT STETTINIUS One M33245) & HOLLISTER LLP Indiana Square, Suite 3500 Indianapolis, Indiana 46204-2023 (317) 713-3500 (Phone) (317) 713—3699 (Fax) gslaughter@taftlaw.com rmenyhart@taftlaw.c0m Counsel of Record for Defendants ERIC KOCH and INDIANA REPUBLICAN CAUCUS 17 HOUSE Certificate of Service I certify that 0n June 26, 2015, I caused a true copy of the foregoing t0 be served via first—class United States Mail, postage prepaid, upon the following counsel of record: William R. Groth, Esq. David T. Vlink, Esq. FILLENWARTH DENNERLINE GROTH 8r TOWE, LLP 429 East Vermont Street, Suite 200 Indianapolis, Indiana 46202 MWU/éé Geoff{ey 11732054 18 SnghterU STATE OF INDIANA IN THE ) MARION SUPERIOR COURT SS: COUNTY OF MARION CAUSE NO. 49D14-1504-PL—12401 ) CITIZENS ACTION COALITION OF INDIANA, ENERGY AND POLICY INSTITUTE, and COMMON CAUSE OF INDIANA FILE D ® Plaintiffs, 7 c JUN 2 6 2015 Q4 52m?) “1% cou OF m2 MAPJON ' CIRCUIT vvvvvvvvvvvvv ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS Defendants. Defendants’ Rule 12(B) Motion to Dismiss for Lack of Iusticiability, and Alternatively, Defendants, Eric respectfully Koch and the Indiana for Failure to State a Claim House Republican Caucus, by counsel, move the Court to dismiss With prejudice the claims filed by Plaintiffs, zen Action Coalition of Indiana, Energy and Policy Institute, and Citi- Common Cause of In- diana. In support of their motion, Defendants state: 1. this Plaintiffs filed their Court directing Defendants complaint on April 15, 2015, to allow the inspection seeking a judgment from and copying of specified e-mail and other legislative communications under the Indiana Access Ind. Code §§5-14—3-1 et seq. to Public Records Act, (the ”Act”). 1““ Jun z 9 2. Plaintiffs’ 3. First, workings of the tiffs’ claims should be dismissed for two separate reasons. the judicial decree Pléinfiffs seek legislature. Under controlling Indiana claims are non~justiciab1e and 4. Second, Plaintiffs would interfere with the internal Supreme Court authority, must be dismissed under Rule fail to state a claim Plain— 12(B)(1). upon which judicial relief can be granted under Rule 12(B)(6): (i) two of the three Plaintiffs lack standing under the Act because they did not file the disputed public-records requests that are the subject of this lawsuit; (ii) neither Representative Koch and nor the Caucus is a ”public agen- cy” under the Act; and (iii) the Caucus is not a proper party for the additional reason that the requests at issue here were directed solely at Representative Koch. 5. Defendants are filing a supporting memorandum of law with this motion. WHEREFORE, the Court should dismiss Plaintiffs’ award all other appropriate relief. claims with prejudice and Respectfully submitted, @wa Geoffrey Slaughter (Y8332-45) Russell Menyhart (25018-49) TAFT STETTINIUS One & HOLLISTER LLP Indiana Square, Suite 3500 Indianapolis, Indiana 46204-2023 (317) 713-3500 (Phone) (317) 713-3699 (Fax) gslaughter@taftlaw.com rmenyhart@taftlaw.com Counsel 0f Record ERIC for Defendants KOCH AND INDIANA HOUSE REPUBLICAN CAUCUS Certificate of Service I certify that be served via 0n June first—class 26, 2015, I caused a true and correct copy of the foregoing to United States Mail, postage prepaid, 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 Mfl/VW 44. Geoffrey él/zifighter 120826061 a CIVIL NOTICE MARION SUPERIOR COURT, CIVIL DIVISION CITIZENS ACTION COALITION OF INDIANA v. 14 49D14-1504-PL-012401 ERIC KOCH,INDIANA HOUSE. REPUBLICAN CAUCUS To: File Copy PARTIES PLAINTIFF / PETITIONER CITIZENS ACTION COALITION OF INDIANA ATTORNEYS William R Groth Geoffrey G. Slaughter; Russell Charles Menyhart; Geoffrey G. Slaughter; Russell Charles Menyhart DEFENDANT / RESPONDENT ERIC KOCH; INDIANA HOUSE REPUBLICAN CAUCUS EVENTS: File Entry Date Stamp/ Event and Comments Order Signed/ Hearing Date Notice Issued to Panies (The Court 06/19/201 5 at- conference on July 1, 201 5 pm.) Hearing Scheduling Activity (Status Conference scheduled for 07/01/201 5 06/1 9/2015 at Distribution: 1:30 sets a status William 1:30 PM.) R Groth Geoffrey G. Slaughter Printed 6/19/2015 2:35 PM STATE OF INDIANA IN ) ) COUNTY OF MARION THE MARION SUPERIOR COURT ss: CAUSE NO: ) CITIZENS ACTION COALITION OF INDIANA, ENERGY AND POLICY INSTITUTE, and COMMON CAUSE OF INDIANA, 49D05~1504—PL—012401 ) ) ) ) Plaintiffs, FILED ® _ ) ) 0mm JUN ) -VS— ) d, ”fimmh D ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, :fimfifiy ) ) ) Defendants. ) NOTICE OF STIPULATION OF SPECIAL IUDGE Plaintiffs and Defendants jointly hereby notify the Court that pursuant to Ind. Trial Rule 79(D) they have agreed to the appointment of the Hon. james Osborn of the Marion Superior Court 14 to serve as special judge appointing Judge Osborn in this matter as special judge and they request that the Court enter an Order and thereby notify him 0f his appointment. Respectfully submitted, MflM William 6MP“ Raoth ., flMv/j: David T. Vlink Al/ormj/jor Dg/endmm AttomgyJI/br P/az'n/gfii TAFT STETTINIUS DENNERLINE GROTH & TOWE, LLP, FILI..ENWARTH 429 East Vermont Indianapolis, Street, Ste. / jeoffrcy Slaughter 200 One Indiana Square Suite 3500 Indianapolis, 8c \ {0 /flW/4W7 \ I / HOLLISTER, LLP IN 46204 IN 46202 am gwas 208 PLACE STICKER A7 YOD OF EN OF THE nfnmu Arman: r Ill ?DLS DEHD DUDE _ ‘ ' " b L9 2 D ‘.- EHL? .— g 7—. — _ ' 4 H: ' 01.40 PIYNIY BONES $ 007.890 2015 -'ooor597o7s JUN 05 m32 9 ooe zwc FROM ~MNLED ‘ STATE OF INDIANA ) COUNTY OF MARION IN ) THE MARION SUPERIOR COURT ss: CAUSE NO: ) CITIZENS ACTION COALITION OF INDIANA, and ENERGY AND POLICY INSTITUTE, ) > > > Plaintiffs, 49D05—1 504-PL—012401 FILED > > x. \ MAY 2 8 115.5} 2015 g ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, ) ‘TH :Le ) (a. iémd LL 0F me MARION :Rcun go > Defendants. > ORDER GRANTING MOTION FOR CHANGE 0F IUDGE Comes Now, hereby GRANTS The the Court, and having considered the Plaintiffs’ said mofion and parties shall Motion for Change ofjudge, orders as follows: have seven (7) days within which t0 agree to an eligible special judge according t0 Trial Rule 79(D) and to file said agreement with this Court. In the event the parties not agree 0r the agreed upon special judge does not accept the case, the special judge selected by Marion County Local Rule 224, SO ORDERED, this g; Z) day as shall do be provided in Trial Rule 79(H). of//(C" Z , 2015. JCDGE, MARION SUPERIOR COURT 5 V\ l Distribution: William R. Groth Geoffrey Slaughter David T. Vlink Taft Stetfinius Attomg/Ifor Re¢ondent One Indiana Square FILLENWARTH DENNERLINE GROTH & TOWE, LLP, 429 East Vermont Indianapolis, Street, Ste. IN 46202 200 Suite & Hollister 3500 Indianapolis, IN 46204 STATE OF INDIANA ) IN THE MARION CIRCUIT/SUPERIOR COURT )ss: COUNTY 0F MARION ) CAUSE N0. 49005—1504-PL-012401 CITIZENS ACTION COALITION OF INDIANA, and ENERGY AND POLICY INSTITUTE, and COMMON CAUSE OF INDIANA, Plaintiffs. r125 \'. ERIC KOCH and INDIANA HOUSE FILED , MAY 28 2015 Wna a REPUBLICAN CAUCUS, CLE 1 flma‘fxy OF THE MARDN CECUFT §O Defendants. ORDER GRANTING DEFENDANT’S MOTION FOR EXTENSION OF TIME TO ANSWER COMPLAINT Defendants, Eric Koch and Indiana House Republican Caucus, by counsel, having moved the Court for extension of time to respond to answer Complaint filed by Plaintiff, and the Court, having considered said motion and being duly advised in the premises, an extension 0f time 0f thirty (30) days, to and including June 26, 201 now GRANTS Defendant 5, within which to respond to the Complaint.: Dale: T/9 >3 A / ‘ DGE, " Marioré Circuit/Superior Court K Distribution to: Geoffrey Slaughter, Esq. Russell Menyhan, Esq. William R. Groth, Esq. David T. Vlink, Esq. TAFT STETTINIUS & HOLLISTER Fillenwarth Dennerline Groth One 429 Indiana Square, Suite 3500 Indianapolis, IN 46204 Vermont Street, Indianapolis, IN 46202 E. Suite & Towe, LLP 200 '7' u. [4'4] 92880664 ‘ ‘3 {1 " 0/5 STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) ss: COUNTY 0F MARION ) CAUSE N0: 49D05-1504-PL-012401 CITIZENS ACTION COALITION 0F INDIANA, and ENERGY AND POLICY INSTITUTE, ) ) - FILED . ) ) Plaintiffs, a ) Mr (‘32- ) -vs- 977M) M“ °’ g ERIC 2 7 2015 KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, “”‘R'Mm‘cw'cwbg ) ) ) Defendants. ) MOTION FOR CHANGE 0F JUDGE Pursuant to Trial Rule 76(B) Plaintiffs request a change ofj udge. Respectfully submitted, flaw Wfliam R. Grab, Of Counsel David T. Vlink Attorneysfor Plaintifls FILLENWARTH DENNERLINE GROTH & TOWE, LLP 429 East Vermont Street, Suite 200 Indianapolis, IN 46202 Telephone: (317) 353-9363 Telecopier: (3 17) 351-7232 wg;oth@fdgtlaborlaw.com MAY 2 8 Zoe Certificate of Service hereby certify that a copy of the foregoing was served via U.S. Mail upon counsel for the Defendant, Geoffrey Slaughter, Esq.,Taft Stettinius & Hollister,0ne Indiana Square, Suite 3500, Indianapolis, IN 46204 on this the 27th day of May, 2015. I /z/¢%Z2K— William R. Gffih STATE OF INDIANA ) IN THE MARION CIRCUIT/SUPERIOR COURT )SS: COUNTY 0F MARION ) CITIZENS ACTION COALITION 0F INDIANA, and ENERGY AND POLICY INSTITUTE, and COMMON CAUSE 0F INDIANA, CAUSE No. 49D05-1504-‘PL-012401 ) ) ) ) ) Plaintiffs, ) ® ) v. ) ) ERIC KOCH and INDIANA HOUSE “777 ) REPUBLICAN CAUCUS, ) Defendants. ) FIL E D c‘ - _ MAY 25 2015 a. ”msmmmgfiéfig DEFENDANT’S MOTION FOR EXTENSION 0F TIME“ T0 ANSWER COMBLAINT I Defendants, Eric- Koch and Indiana House Republican Caucus, by counsel, in support of their motion for extension of time to answer Complaint filed by the 1. Plaintiffs copy by mail on 2. Plaintiffs, state asfollows: filed their Complaint on April 15, 201 5. Defendants were served with a May 4,..2015. Defendants are required to respond no later than May 27, 2015. This time has not ' yet passed. 3. Defendants request that the time £0 respond to Plaintiffs’ for thirty (30) day_s until June 26, 201 5. Complaint be enlarged ‘ WHEREFORE, Defendants file their motion for an enlargement of time of thirty (3 0) days, to all and including June 26, 2015, within which to respond to Plaintiffs’ Complaint, and for other proper relief. 20,5 92880664 Respectfully submitted, ' - Russell Menyhart, Atty. N0. 2501' ~49 TAFT STETTINIUS One Indiana Square, Suite 3500 Indianapolis, Indiana Phone: (3 17) & HOLLISTER LLP 46204 713-9423 Fax: (317) 713-3699 Attorneyfor Eric Koch and Indiana House Republican Caucus CERTIFICATE 0F SERVICE I hereby certify that on the 26th day of May, 2015, I served a copy of the Motion for Extension of Time to Answer Complaint by United States first class mail, postage prepaid on the following: William R. Groth, Esq. David T. 'Vlink, Esq. Fillenwarth Dennerline Groth 429 E. Vennont Indianapolis, & Towe, LLP Street, Suite'200 IN46 02 ‘Geoffrey G, gaughter, Esq. 92880664 U r2 ' STATE 0F INDIANA IN ) THE MARION CIRCUIT/SUPERIOR COURT )ss; COUNTY 0F MARION ~ CAUSE NO. ) 49D05-1 504-PL-0 1 2401 CITIZENS ACTION COALITION 0F INDIANA, and ENERGY AND POLICY INSTITUTE, and COMMON CAUSE 0F INDIANA, FELED Plaintiffs, VVVVVVVVVVVVV V. MAY W77z&. KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, ERIC um: or me 262015 4.: mam ifigw Defendants. APPEARANCE BY ATTORNEY IN CIVIL CASE Party Classification: 1. The undersigned ERIC 2. Responding Initiating attorney now appears X Intervenor in this case for the following party member: KOCH and INDIANA HOUSE REPUBLICAN CAUCUS Applicablg attorney information for service as required by Trial Rule 5(B)(2) and for case information as required by Trial Rules 3.1 and 77(B) is as follows: . Name: Geoffrey G. Slaughter, Attorney N0. 18332-45 Russell Menyhart, Attorney No. 25018-49 Address: TAFT STETTINIUS & HOLLISTER LLP One Indiana Square, Suite 3500 Indianapolis, Indiana 46204 Telephone: (317) 713—3606 Fax: (317) 713—3699 Email: gslaughter@taftlaw.c0m 3. There are other party members: N0. 4. Iffifst initiating partyfiling this case, the Clerk is requested t0 assign this case the following Case Type under Administrative Rule 8(b)(3): 5. 92880661 I will accept service by FAX at the above noted number: PL (already assigned) Yes No X am 2’7 ‘zm‘s {r This case involves support issues: 6. 7. Yes .There are related cases: This form has been served on 8. Certificate of Service all X No other parties. is attached: Additional information required by 9. No X Yes Yes local- X No rulezNone MW MW B’Geoffrey G. SHughter, Attom$§ No. 18332-45 Attorneyfor Defendant, Eric Koch and Indiana House Republican Caucus Taft Stettinius One & Hollister LLP Indiana Square, Suite 3500 Indianapolis, Telephone: Facsimile: Indiana46204 3 17-7 I 3-9423 3 17-713-3699 CERTIFICATE 0F SERVICE I hereby certify that on the 26th day of May, 2015, I served a copy of the Appearance by United States first class mail, postage prepaid on the following: William R. Groth, Esq. David T. Vlink, Esq. Fillenwarth Dennerline Groth & Towq, 429 E. Vermont Street, Suite 200 Indianapolis, LLP IN 46202 XIM @flfi fGeoffrey GLélaughter, Esq. 9'288066.1 J! STATE 0F INDIANA IN THE MARION CIRCUIT/SUPERIOR COURT ) ) ss: COUNTY 0F MARION CAUSE No: ) CITIZENS ACTION COALITION 0F INDIANA, and ENERGYAND - POLICYJNSTITUTE, and COMMON CAUSE 0F INDIANA, Plaintiffs, " ) ) ) E9 ) 1‘» fix ‘5 1m5 3 > -vs- Mr 94rpL01240§ 49905 ) ) ®Jrflawflw i ERIC KOCH and INDIANA HOUSE ) REPUBLICAN CAUCUS, ) I ) Defendants. ) APPEARANCE BY ATTORNEY IN CIVIL CASE This Appearance 1. Form must be filed on behalf of every party in a civil case. The pafiy onwhose behalfthis form is being filed is:.. Initiating X Responding_ Imervening— the undersigwd attorney and all attorneys listed on ; and form this now appear in this case for the following parties: Namepf party: Citizens Action Coalition of Indiana, Common Cause of Indiana Energy. and Policy Institute, and ' Address of party: c/o William R. Groth, 429 E. Vermont Street, Ste. 200, Indianapolis, IN 46202 Telephone # ofparty '(List 2; (.1 "’0“ 3'17-3 53-9363 on a continuation page additionalparties this attorney represents in this case.) Attorney information for service as required by Trial Rule -5(B)(2) Name: William R. Groth, Esg. Atty Number: 7325-49 Address: 429 E. Vermoht St. Ste. 200 Indianapolis, IN46202 _ Phone: (317) 353-9363 j 6A "I FAX: (317) 351-7232 Email Address: wg;oth@fdglaborlaw.com on continuatiOn page additional attorneys appearingfor above party) (List case type as defined in administrative Rule 8(B)(3). . This . Iwill accept service . This case involves child support issues. Yes is a P_L by FAX at the above noted number: Yes No X _No (Ifyes, X supply social security numbersfor allfamily members on a separately attached documentfiled as confidential information on light green paper. Use Form TCM-TR3.I-4.) . This case involves a protection from abuse order, a workplace violence restraining order, or a no — contact order. Yes'_ No _X_ (Iers, the initiatingparty mustprovide an addressfor the purpose oflegal service but that address should not be one that exposes the whereabouts ofa petitioner.) The party shall use the following address for purposes of legal service: Attorney’s address The Attorney General Confidentiality program address (contact the Attorney General at 1-800—321-1907 or e—mail address is confidential@atg.state.in.us). Another address (provide) Yes X No . This case involves a petition for involuntary commitment. . If Yes above, provide the following regarding the individual subj ect to the petition for involuntary commitment: a. Name of the individual subject to the petition for involuntary commitment if it is not already provided in #1 above: b. State c. At of Residence ofperson subject to least (i) (ii) petition: one of the following pieces of identifying information: Date of Birth: Driver’s License Number (v) Expiration date where issued ID number Expiration date State where issued FBI number Indiana Department of Corrections Number (vi) Social Security Number ls available and State (iii) (iv) State ' ‘ confidential document ls Yes_ No— * being provided 1n an attached 9. N0 There are related cases: Yes 10. Additional X (Ifyes, list 0n continuation page.) information required by local rule: 11. There are other party members: Yes 12. This form has been served 0n all No X (Ifyes, list 0n continuation page.) other panies and Cenificate of Service is fl/VM William R. Groth, Esq, 7325-49 Attorney Information shown above attached: APPEARANCE FORM CONTINUATION PAGE Case Number: First Listed Party Member: Citizens Action Coalition of Indiana Continuation of Item 2: Name: David Tyler Vlink Address: 429 E. Vermont Indianapolis, IN 46202 Atty Number: 301 82-45 St., Ste. E-mail: dvlink@fdgtlaborlaw.com 200 Phone: (317) 353-9363 FAX: (3 17) 351—7232 STATE OF INDIANA IN ) THE MARION CIRCUIT/SUPERIOR COURT ) ss: COUNTY OF MARION CAUSE NO: ) CITIZENS ACTION COALITION OF INDIANA, and ENERGY AND POLICY INSTITUTE, and COMMON CAUSE 0F INDIANA, 43905 35 94 PL: 0 1 Z A g 1 ) ) ) ) ) Plaintiffs, ELEB ) ) -VS- ) > ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS, ) ) 20‘s @wwwnmfiwu w a M.“ 15 45g) ) Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, by their undersigned counsel, for their Complaint against Defendants, respectfully ask this Court to hold that Defendants have violated Indiana’s Access to Public Records Act (hereinafter them to inspect and/or APRA. “APRA”), Indiana Code §5-14—3, by failing to allow copy certain records which they have requested pursuant tQ the In support thereof, Plaintiffs allege as follows: PARTIES 1. Plaintiff Citizens Action Coalition 0f Indiana (hereinafier “CAC) is for—profit state—wide o'r‘ganization founded in 1974 dedicated to protecting utility ratepayers and advocating for a ciean environment through canvassing, lobbying, a 110t- community organizing and litigation, so as to improve the qualitgl of life of all citizens of - CAC has“ its principal office. at 603 E. Washington St., #502; Indianapolis, Indiana. Indiana, 46204. 2.- Plaintiff Energy and Policy Institute (hereinafier “EPI”) is a pro—clean energy think tank headquartered in Washington, D.C., working to expose attacks on clean technology and counter misinformation by fossil fi1e1 and 3. Plaintiff utility interests. Common Cause of Indiana (hereinafter “Common Cause”) is a nonpartisan organization headquartered in Indianapolis, Indiana, promoting representative democracy by advocating for open and 4. Defendant Eric Koch District 65, covering all is ethical government in the State the elected representative of Indiana. fiom Indiana House of Brown County, most of Lawrence County, and parts of Monroe, Jackson and Johnson Counties, who also serves as Assistant Maj ority Caucus Chair of the Indiana House Republican Caucus. 5. consists Defendant Indiana House Republican Caucus (hereinafter the “Caucus”)l of all currently—serving Republicafi members of the Indiatga House of Representatives. FACTUAL ALLEGATIONS 6. On January correspondence between Light bill, fiom September 1, 16, 2015, EPI emailed to Koch a request‘for copies of certain Koch and his staff and 2014 to January Duke Energy and Indianapolis Power & 15, 2015, regarding the distributed generation House Bill 1320, filed by Koch. That request (Exhibit A) included emails, draft récords, notes, minutes, scheduling records, text messages, and all other correspondence or records. Koch and B), claiming that the A7. the Caucus responded to that request APRA did not apply to the Indiana General Assembly. 0n February 2, requesting the on January 20, 2015 (Exhibit 201 5, EPI sent a second same information from APRA request (Exhibit C) additional energy companies, including Cheniere Energy, Consol Energy, Edison Electric Institute, Indiana Michigan Power (0r American Electric Power), Noflhem Indiana Public Service Company, Spectra Energy,Vectren, and K Wisconsin Energy Corporation, and expanding the dates 0f that request to include correspondence prior to February 1, 2015. On February 9, 2015, Koch and the Caucus again denied EPI’s request (Exhibit D), reasserting that the APRA was inapplicable to the Indiana General Assembly. 8. On March 6, formal complaint against Assembly is 9. 2015, the Public Access Counselor, responding to EPI’s Koch and the Caucus, determined that the subje‘ct to the APRA. A copy of that Opinion (Exhibit E) is attached. On March 9, 201 5, EPI, this time joined by CAC, expanded APRA request (Exhibit F) documents that pertain “electn'c fairness,” or to Koch for all to “net metering, $3 (6 solar energy,” “distributed generation,” “fixed charges,” created between Koch and ten identified energy On March grounds that the submitted a revised and emails, correspondence, or other companies and energy company lobbyists from September 10. Indiana General 16, 2015, Koch and the Caucus 1, 2014 to the present. denie'd‘ that request on the APRA does not apply to them and, in any event, it was lacking in . specificity and sought “work product” of the Indiana General Assembly. On March 23, “201 5, EPI and CAC filed a second cbmfi-laint with the Public 11. Access Counselor (Exhibit G) who, on April (Exhibit H) in specificity find 12. 1, 2015, issued a second advisory opinion which he found that the request by EPI and was CAC satisfied the elements of thus reasonably particular. Despite the opinions of the Public Access Counselor, have continued to refuse to Koch and the Caucus produce any of the records sought by EPI and CAC in their APRA requests. LEGAL ALLEGATIONS 13. The APRA states entitled to full entity “exercising 14. the “public policy of this state that who represent them as public “liberally consirued to power of the it is and complete information regarding the official acts of those any that implement thjspolicy.” The affairs all persons are of government, and the officials” and that the APRA is to be APRA defines a “public agency” as any part of the executive, administrative, judicial, or legislative state.” I.C.§ 5-14-3-2(n)(1). I.C. §5-14-3-3 (a) provides that any person may inspect and'copy the public records of any public agency pursuant to a request (except as provided in LC. § 5-14-3 —4) that identifies with reasonable particularity the records being requested. 15. Kochfi'and the Caucus have‘ refuéed and are continuing to refuse to produce the recprds Plaintiffs have requested on the grounds, inter alia, that the. APRA ‘does not apply to the General Assembly and the correspondence and records requested are‘ discretionarily 'indi-vidual exempted from disclosure by I.C. fiembers and the partisan 16. There is staffs no exemption in the § 5-14-3-4(b)(13) as “work product of of the general assembly.” APRA for legislator-constituent communications, and even if there were the rccdrds Plaintiffs seek are not from “constituents” of Koch’s but rather from regulated public utilities doing business in Indiana and lobbyists whose communications are were “work product” (which is not defined in the on the utilitieg’ behalfi. Moreover, even APRA) to be broadly defined t0 include documents other than those which have been prepared by or for legal counsel in anticiipation of litigation, the documents being requested go well beyond what arguably might constitute the “§vork product” of Koch and would, for instance, include drafis of proposed legislation prepared by regulated utilities and/or their lobbyists (not Koch) and communications to Koch which could not under any circumstances be reasonably construed to constitute “work product of individual 17 . Plaintiffs members [of the general assembly].” have first sought and obtained advisory opinions fi'om the Pfiblic Access Counselor with respect .to the issues presented by this action, and they are thus eligible to recover their costs, expenses and reasonable attomey’s fees should they substantially prevail in this action. WHEREFORE, Plaintiffs pray that this Court: a. the declare pursuant to LC. § 34-14-1-1 that Koch and the Caucus are subj ect to APRA, and find that they violated the APRA by denying all or some of the disclosures sought by Plaintiffs; determine de novo pursuant t0 b. met their I.C. § 5—14—3—9(g) whether defendants have burden 0f proof t0 justify their non-disclosure, including reviewing pursuant to subsection 9(h) all 0f the records which are within the scope 0f in camera Plaintiffs’ requests t0 determine whether any of those communications and records are or should be exempted from disclosure c. “work product” pursuant t0 LC. § following such a review and determination, order disclose any records cl. as award deemed by 5-14-3-4(b)(14); Koch and the Caucus the Court t0 be non-exempt and reasonably particular; Plaintiffs their costs, expenses and reasonable attorneys’ fees pursuant t0 LC. §5—l4—3~9(i); e. expedite the hearing and disposition 0f this action by provided by LC. §5-l4-3-9(k); and f. grant such other or further relief as the Court may deem necessary or appropriate to fully vindicate the public policy governmental transparency policies as expressly stated in the preamble t0 the APRA, I.C. § 5-14-3-1. Respectfully submitted, M/flx’ William R/fipéth, #7325-49 David T. vnnk, #301 82-45 A ttorneysfor Plaintifls‘ FILLENWARTH DENNERLINE GROTH & TOWE, LLP 429 Vermont 200 46202 Telephone: (317) 353-9363 Fax: (317) 351—7232 E. Indianapolis, IN Street, Suite t0 E?mail: pf92fsca'dr From: Matthew Kasper kasperm@energyandpolicy.org _ Subject: Public Records Request -.HB 1320 Date: January 1B. 2015 at 10:47 AM " . To: h65_@ 'ga.in.gov Bcc: Gabe Eisner elsnerg@energyandpolicyorg Dea'r Representative Eric Koch, Under the ‘Indiana Access Records Act § 5-14-3-1 etseq., am requesting an opportunity to obtain copies of correspondence between Representative Eric Koch, Koch's staff, and Duke' Energy. ahd‘ Power & to Public 'l The information is'specifically regarding the distributed generation bill, H.B. 1320, filed by Representative Eric Koch. This public records request should include but is not Ii'mited to emails, all draft records, notes, minutes, scheduling records, text Indianapolis . Light. -- ' .-_ messages, other correspondence and all other records. The search records may be limited to September 1,.2014 to January 15, 2015. _.- for there are any fees for searching or copying these reCords, please inform me if the-cost will exceed $20.00. HoWever, [would also like to .....- 1...- .,.......-.-..‘ lf request a waiver of fees that the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding 0f the drafting 0f this legislation. This infOrmation . is n’ot all in being sought for commercial purposes. The Indiana Access to Public RecordsAct requires a response time within seven business days. If ac'cess to the records am requesting will take longer than seven days, please contact me with information l about when l might expect copies or the ability to inspect the requested records. ‘ you deny any or all of this request, pléase cite each specific exemption you feel justifies the refusal to release the information and notify me, of the appeal procedures available to me under th'e law. If _ . Thank you for considering my request. Respectfully, Matt Kasper . mmsmnmav N INSTIIUIE w~ i ' Matt Kasper/Fellow ‘ 5.25:"; ‘ ' __._-............. 630-9039362151 kasperm @energYandpolicymg From: CarnelI dill.0arnell@igalin.gov Jill Subiect: Public Records Request- HB 1320 Daje: January 20. 2015 at 5:04 PM To: kasperm®energyandpolicy.org Dear Mr. Kasper: This email is in response to your email to Rep. email was forwarded to copi'es of Power & H.B. 1320, filed In all other alI response. In Eric Koch dated January 16, 2015. As Chief Counsel, th‘e your email, you requested ”an opportunity to obtain correspondence between Representative Koch, Koch’s Indianapolis emails, me fqr a The information is staff, and Duke Energy, and specifically regarding the distributed generation biH, by Representative Koph. This public records request should include but draft records, notes, minutes, scheduling records, text messages, otHer reco‘rds. Masariu The search for records may bé The Marion Superior Court No. v. not intervene legislative Light. 1, limited to September 1, branch of government to decide its not limited to 2014 to January 15, 2015." the lndiaha Supreme Court determined that of the legislative branch of government and that in th_e internal affairs is correspondence and own it is it would up to the internal procedural rules relating to the release of records. Therefore, the Indiana Access to Public- Records Law, located at lC 5- 14- 3, does not ap‘ply to the Indiana General Assembly. Also, it is important for you to know th‘at it is our House tradition to treat confidential. This encourages our consfituents-and anyone else—to information to th‘eir legislative aIl correspondence as communicate all necessary representative without fearing that the information (which is . often personal and private in nature) could be released to an outside party. Therefore, because Masariu permits it and because our House tradition supports it, am denying your request for the correspondence you requested. n. .. Sincerely, Jill S. Carnell Chief Counsel House Republican Caucus Jill 5. Carnell Chief Counsel Indiana House of Representatives House Republican Caucus 200 West Washington Street Room 3-8 I . Indianapolis, Indiana --_. l . w 46204 ‘.--.=-=- EXhlBl l- ‘ :-, (317)232-9631 (direct) (317)232-9635 (office) :E ‘ . L _ . (317) 234-9275 (fax) (317) 294-3632'(cell) ' This eméil is subjéct to thé attorney/client privilege and is exempt from disclosure under the Indiana Access to Public you! Records Act. 1f you receiéed this'email in error, please. delete and call me at (317) 232-9631. Thank 'l ‘5 f. From: Matthew Kasper kasperm@energyandpolicy.org Subject: Request Under Indiana Access to Public Records Act Date: February 2, 2015 at 4:35 PM To: h65@iga.in.gov Cc: Gabe Elsner elsnerg@energyandpolicy.arg Dear Representative Eric Koch, Under the Indiana Access to Public Records Aci § 5-14-3-1 et seq., we are requesting copies correspondence between you and your staff and the following: of -‘ Cheniere Energy - ConsolEnergy - Duke Energy - Edisofi . . ‘ Electric Institute , Indiana Michigan’Power (or-Americ'an Electric Power) Power & AES - Indianapolis - Northern Indiana Public Service - Spectra Energy Light (or Corporation) Company (NIPSCO) ' ‘ - y h - ° 'l .Vectren. Wisconsin Energy Corporation (or WeEnergies) This public records request should include but is not limited to emails, all draft records, notes, minutes, scheduling records, text messages, other correspondence and all other records. The search for records may be limited to September 1, 2014 to February 1, 2015. It is imperative to regarding . th'e public trust HB 1320 by interests listed above. We ‘in ‘ the legislative process that you provide transparency all records between you'r office and the utility special believe the public has a right to know if special interests in the utility disclosing industry were involved _ in any and any way with the legislative process or drafting o'f HB 1320. Reéent revelations in the Thé Indianapolis Star reported on January 27 detailed that ybur most recent financial disclosure included stock holdings above $1 0,000 in several corporations that could financially benefit from the passage Qf HB 1320. We previously sent Indianapolis a request Power & for records between your and Duke Energy and bill you have sponsored, HB The Marion Superior Court No. 1, office Light regarding the distributed generation 1320. Your office’ denied the request based on Masariu v. and the Counsel for the House Republican Caucus cited that the Indiana Supreme Court determined that it would not intervene in the internal affairs of the. legislative branch of government, and that‘it Is up to the legislative branch of government to decide its qwn internal procedural rules relating to the release of records. We hope you will respond by~disclosing the requested records to provide your constituents and the public assurance that Special interests were'not involVed in the drafting or legislative process surrounding HB 1320. You and your spouse own stock or stock options with a marke't value in excess of $1 0,000 in the foliowing companies that could benefit from the legislation’s passage. We believe it could represent a serious conflict of interest if the utility interests listed above or an'y of these companie's were involved in crafting HB 1320: ‘ - . EXHEBIT: c. j ' ' ' \J Conéoi Energy, which has operations in Indiana consiéting of bed methane, and the rights to gas inthe New Albany shale. - Cheniere Energy, Which i's thef rights to extract coal v ' a natural gas Company involved with the import and_,export of and devel'opment of natural gas liquefied natural gas, an'd-is also involved in explbration in ' the Gulf of Mexico. . Wisconsin Energy Corporation (We Energies), a utility poWer company that primarily operators coal and natural gas power plants; Wisconsin, along with Indiana, is part of the Midwest Independent System Operator (MISO). ' ' . Spectra Energy, an oII and gas pipeline company thét owns the Texas Eastern Pipeline, which runs through Indiana, and has planned to transport natural gas from the' Marcellus Shale to Gas City, Indiana. Spectra Energy will financially benefit through the ' additional sales of natural gas in ' Indiana. there are any fees for searching or copying these records, please inform us if the cost will exceed $20,00. However, we also request a waiver of all fees because the disclosure 0f the requested information is in the public interest and will contribute significantly to'the public’s understanding of the drafting of this legislation and the influence of utility companies‘ih the legislative pr_ocess. This informatibn is not being sought for commercial purposes. If ' The Indiana Access to Public Records Act requires a response time within seven business days. If access to the records we are requesting will take longer than seven days, please contact us with information about requested records. when we might expect copies or the abiiity to inspect the - If ybu deny any or all of this request, please cite each Specifié exemption you feel justifies the refusal to release the information and notify us of the appeal procedures available to us under ‘ the law. We Thank you for considering this request. believe that transparency is nécessary to secure the public trustin the legislative process and ensure HB 1320 does not represent a serious conflict of interest. Respectfully, Gabe Elsner ~#— m... «5% _ ”3% & Matt Kasper WE? Matt Kasper l Fellow 630-908-961 5/ kasperm@energyandpolicy.org www.energyandpolicy.org “i - From: Jill Camel! Jill.CarneIl@ ‘ga.ln.gov Su biect: HE: Request Under Indiana Access to Publié Records Act 201 5 at 7:52 PM To: kasperm@energyandpolicy.org Date: Febru'ary Dear Mr. Ka'sper, This email email 9. in is response to your email to Rep. was fonNarded to me for a response. between you and your staff for the Electric Institute, Indiana all cqrrespondence and February 1, 2015. This request is your email, you reduested "copies of correspondence Michigan Power (or American Wisconsin Energy Corporation 2015. As Chief Counsel, the 2, following: Cheniere Energy, Consol Energy, AES Corporation), Northern Indiana limited to emails, In Koch dated February Eric Publi'c El_ectric Company Service Duke Energy, Edison Power), Indianapolis Power & Light (or (NIPSCO), Spectra Energy, Vectren, and (0 : WeEnergies). This public records request should include but is not draft records, notes, minutes, scheduling records, text messages, other all other records. The search for records may be limited to September 1, 2014 to ” very similar to yourJanuary 16, 2015, request to Rep. Koch. On January 20, 2015, l and explained that the Indiana Supreme Court has held that the Indiana Access to responded Public Records Law does not apply to the Indiana General Assemny. In addition, explained that the to y'ou I House tradition request is to treat identical to is alI correspondence as confidential. Therefore, my response to your earlierl similar request, my response to your current which have included below. l Sincerely, Jill S. Carnell Chief Counsel House Republican Caucus Jill S. Carnell Chief Counsel Indiana House of Representatives House Republican Caucus 200 West Washington Street 'Room 3-8 .lndianapolis, Indiana (317)232- 9631 . 46204 (direct) (313)232-9635 (office) ' \ (317) 234-9276 (fax) (317)294-3632 (cem This email to Public is subject 10 the attomey/client privilege and Recordg Act. If you received exempt from disclosure under the Indiana Access please delete and call rhe at (31 7) 232-9631. Thank is this email in error. you! From: s_ent: Jill Carnell Tuesday, January 20, 2015 5:03 PM To: ‘kasperm@energyandpolicy.org' Subj'ect: Public Records‘Request— HB 1320 . _ EXHEBIT. . D Déar Mr..Kasper: This email is in response to your email to Rep. ' email was forwarded to me for a response. [n Koch dated January 16, 2015. As Chief Counsel, the your email, you requested ”an opportunity to obtain Eric copies of correspondence Indianapofis Power 8: between Representative Koch, Koch’s staffi‘and Duke Energy, and Light, The information is specifically regarding the distributed generation H.B. 1320, filed by Representative Koch. This public records request should include but emails, all draft records, notes, minutes, scheduling records, text aIl other records. The search for records In Masariu The Marion Superior Court No. v. not intervene legislative . may be in the internal affairs bf 1, limited to its not limited to messages, other correSpondence and September 1, 2014 to January‘15, 2015." the Indiana Supreme Court determined that the legislative branch of government and that branch of government t0 decide is own bili, it‘is up it would to the internal procedural rules relating to the release of records. Therefore, the Indiana Access to Public Records Law, located at 1C 5-14-3, does not apply to the Indiana General Assembiy. Also, it is important for you to know that it is our House tradiu‘on to treat all correspondence as confidential. This encourages our constituents—and anyone else—to communicate ail necessary information t0 their legislative representative without fearing that the information (which is often personal and private in nature) could be released to an outside party. Therefore, because Masoriu permits it and because our HAousetradit-ion supports it, am denying your request for the correspondence you requested. Sincerely, Jill S. Carnell Chief Counsel House Republican Caucus Jill S. Camel] Chief Counsel Indiana House of Representatives House Republican Caucus 200 West Washington Street Room 3-8 . Indianapolis, Indiana (317)232-9631 46204' (direct) .{317)232-9635 (office) (317) 234-9276 (fax) (317) 294-3632 This email to Public you! is (cell) subject t0 the attomey/client privilege and Records Act. If you received is this ema’il in error, exempt from disclosure Under the Indiana Access call me at (317) 232-9631. Thank please delete and STATE 0F INDIANA MICHAEL R. PUBLIC ACCESS COUNSELOR LUKE H. BRITT PENCE, Governor Indiana Government Center South 402 West Washington Street. Room ~W470 Indianapolis, Indiana 46204-2745 Telephone: (317)233-9435 Fax: (31 7)2’33~3091 1-800-228-6013 www.lN.gov/pac March 6, 2015 Mr. William R. Groth C/o Energy and Policy Institute P.O. Box 15790 Washington, D.C. 20003 Re: Formal Complaint I5-FC—69; Alleged Violation ofzhe Access t0 Public Records Act by Indiana House Representative Eric Koch and the Indiana House Republican Caucus Dear Mr. Groth, This advisory opinion is in response t0 your formal complaint alleging Indiana House Koch and the Indiana House Republican Caucus (“Caucus”), violated Public Records Act (“APRA”) Ind. Code § 5—14-3-1 et. seq. The Caucus Representative Eric the Access to has responded to your complaint via Ms. Jill S. Camell, Esq., Chief Counsel. Her response is enclosed for your review. I issue the following opinion to your formal complaint received by the Office of the Public Access Counselor on February 24, 2015. . Your complaint dated February violated the Access to Public BACKGROUND 23, 201 5 alleges the Indiana Records Act by failing t0 House Republican Caucus produce information you requested. On or about January 16, 2015, you submitted a public records request to Representative Koch requesting the following information: [c]0pies of correspondence between Representative Eric staff, and Duke Energy, and Indianapolis Power KOCH, Koch’s & Light. The information specifically regarding the distributed generation bill, H.B. 1320, filed by Representative Eric Koch. This public records request should include but is not limited to emails, all draft records, notes, minutes, scheduling records, text messages, other correspondence and all' other records. The search for records may be limited to September 1, 2014 to is January 15, 2015. EXHIBIT: .4 ~ E . 3/ \ \J' On January 20, 20 15, Chief Counsel for the Caucus acknowledged and denied your request arguing that the Indiana Access to Public Records Law was inapplicable to the Indiana General Assembly based upon House tradition and the holding in Masariu Marion Superior Court No. I 621 N.E.2d 1097 argument in its response to your complaint. , (h1d. 1993'). The Caucus v. The reiterated this DISCUSSION First, it should be noted the Indiana Access to Public Records Act applies to the Indiana General Assembly. The Legislature itself wrote in Ind. Code § 5-14-3-1: A fundamental philosophy of the American constitutional form of representative government and not is that government their master. Accordingly, it is is the semant ofthe peeple the public policy of the state that fill] and complete information regarding the of government and the official acts of those Who represent them as public officials and employees. Providing persons With the information is a1Lpersons are entitled to affairs an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose‘duty it is to provide the information. APRA does the statute exempt the General Assembly from its provisions. Nowhere in the In fact, carves out several exemptiéns for itself in relation to specific records. it Therefore, if it does not apply, there would be no need to create exceptions. See Ind. Code §§ 5-14-3e4(b)(13) and Code Furthermore, Ind. (14) and ; 5—14-3—9.5(a) § 5- l4— 3 -2(n)(]) et. seq. defines public agency for the purpose ofthe APRA as Any board, commission, department, division, bureau, committee, agency, office, instrumentaiity, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state. The Caucus cites Masariu ' v. The Marion Superior Court No. 1, 621 N.E.2d 1097 (Ind. APRA does not apply to the General Assembly. In Masariu, the Indiana Supreme Court declined to insert itself into the operations of the legislative branch based upon separation of powers principles. That particular case, 1993) as basis for its assertion that the hOWever, concerned the matter of whether House personnel shofild undefiake a task and did not address any substantive APRA or'Open Door Law issues. The Court did not affirmatively state whether the would not APRA was applicable or not, only that the Supreme Court interfere with internal legislative operations. The Caucus also cites Berry et. al. v. Crawford, et. al., 990 N.E.2d 410 (Ind. 2013). Berry held that where a particular function has be‘en expressly delegated to the legislature by the Indiana Constitution without any express constitutional limitation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution. Distinguishable is the fact that access to public records and governmental transparency is not exclusive to the legislative branch of government. As noted above' in Ind. Code § 5l4-3-2(n)(1), those responsibilities apply across all levels of state and local government. Both Masairu and Berry were concerned with what was created by the Indiana Legislature in part to access to the General Assembly. See Ind. Code ifs non-justiciable. This very Office make recommendations regarding public §-S-14—5-10(7). I opine on matters related of government as well. Therefore, it is my opinion the Indiana General Assembly iS'subject to the Indiana Access Laws. It should also be noted the Genera] Assembly has contemplated writing itself out of the APRA to the executive and legislative branches afier Masariu (See H.B. 1083 (2001)). It declined to do so. Furthermore, the General Assembly has created specific exemptions for itself regarding work product indicating c‘onsiders itself subject to the APRA it in other regards. As for the request itself, much ofwhat you request would fall into the legislative work product exception pursuant to Ind: Code § 5-14-3-4(b)(14). The APRA agency to separate and/or redact confidential information in public records before making the disclosable information available for inspection and copying. Sec Ind. Code § 5-14-3requires an 6(a). Some of the records you seek may be work product of a legislator exempt from Code § 5-14-3-4(b)(14). But it remains to be seen whether the disclosure under Ind. totality of the documentation Finally, it is work product. appears as if your request the specificity requirements of Ind. please refer to the Opinion is not reasonably particular, in that it does not meet § 5-14-3-3. In regard to email communication, Counselor I4-INF-30 for an overview of Public Access ofthe Code reasonable particularity in regard to emails. If resubmitted with reasonable specificity, the Caucus would need to identify the non—disclosablc records containing work product and produce the information which docs not contain work product. CONCLUSION Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana ~ General Assembly is subject to the Access to Public Records Act. Regards, Luke H. Britt Public Access Counselor Cc: Jill. S. Camell, Esq. , f 'STATE OF INDIANA ?.CCameli ' CE:e 0111156 (317)2329631 jill.carnell@iga.m. gov ’ ggfingfaEEPRESENTATIVES zoo West Washington Street g INDIANAPOLIS, INDIANA 46204 March 3, 201 5 — hREEEIE-‘fl Mr. Luke H. Britt Public Access Counselor Indiana Government Center South 402 West Washington Street, M42 ‘ Room W460 ' an; x WE. 3 "0825 iii Indianapolis, Indiana 46204—2745 PUBLIC ACCESS Dear Mr. ‘ i2}, Hg‘sfi... Blitti This i1: COU NSELOR response to Compiaint number 15-FC-69 (Priority), which alleges violations of Act on or about January 20 and February 9, 2015, by Representative Eric Koch and the Indiana House Republican Caucus because I denied the requests for certain constituent correspondence made by the Energy and Policy Institute. letter is in ii}: the Access to Public Records 51:12 a5? 11‘ In both responses to the Energy and Policy Institute, l explained that the Access to Public Records Act does not apply to the Indiana House of Representatives (“House"). Pursuant to Article 4, Section 10 of the Indiana Constitution, “each Hous¢ shall choose its own officers... determine the rules of its proceeding, and sit upon 1'13 own adjourmnent.” In determining the rules of its proceeding, the House has a tradition of treating all correspondence as confidential. This encourages constituents—and anyone else—to communicate all fearing that the information (which necessary information to their legislative representatiVe Without is often persona} and privaIe in nature) could be released to an outside patty. The Indiana Supreme Court has twice authority to determine procedural rules. held that the legislative branch has the constitutional In Masariu v. The Marion Swerior Cour! No. I, 621 1097 (Ind. 1993). the Indiana Supreme Court determined that it w0uld not intervene in the internal afi‘airs of the legislatiVe branch of government and that it is up to the legislative branch of government to decide its own internal procedural rum relating to the release of records. In Berry er al. v. Crawford et al., 990 N.B.2d 410 (Ind. 2013), the Indiana Supreme Court held that “for comts to get inVOlved in such a legislative function would amount t0 ‘constitutionally impermissible its NE.2d judicial interference with the internal operations ofthe legislative branch.”’ For all of these reasons, the Indiana Access to Public Records Law, located at 1C 5-14-3, does not apply to the Indiana General Assembly. Finally, even if the Access to Public Records Law applied to the General Assembly, IC 5-14-34(b) also excludes from disclosure the work product of the legislatiVe services agency, as well as the Work product of the individual members and partisan staffs ofthc General Assembly. \J {\j ‘ .. Mr. Luke Britt' ......... March 3, 2015 Page 2 n. . _ . . '. , Therefore, pursuant-to the Indiana Constitution and two cases decided Court, the Indiana House of Representatives is well within its authority _-...—?.=_. by the Indiana Supreme to deny access to constituent .. correspondence. ’, . '.' v Inrfflfl'." Sincerely, 9.”. :vz-n. S. mum) Ill S. Camell Chief Counsel - House Republican Caucus Cc: 0’." K Speaker Brian Bosma Representative Brio Koch «I ~ .-..... - —- KN" ‘\ @ECGEWED‘ _ .-....... J... —r-.. . -._ Wit? g 3 n—p r. From: Matthew Kasper kasperm@energyandpolicyorg Subject: Access to Public Records Act Request Date: March 9, 2015 at 10:44 To: h65@iga.in.gov \J é - AM -. Cc: Gabe Elsner elsnerg@energyandpolicyorg Dear Representative Eric Kocfi, Under the Indiana Access Any and a 1 io Public we are requesting the followinginformation: and that documents that pertain to “net metering." "solar energy.” “distributed generation.” "eleclric were created from September 1, 201 4. to the present. betwaen Representative En'c Koch and: Indiana Energy Association, including bui not limited to Kimberly Reed. Mark Maassel. Edwin Simcox. orTImothy Rushenberg; Duke Energy Corporation (including Its parent company and subsidiaries). inc1uding but not limited to Stanley Pinegar. Douglas 1. 2. Esamann. Lynn Good, Lisa Kobe, or Laura Schenkel Johnson: 1ndiana Michigan Power (including its parent company and subsidian‘es). including but not limited to Brian Bergsma, Paul Chodak, or Marc Lewis: Indianapolis Power & Light Company (including its parent company and subsidian‘es). including but not limited to Kelly Huntington. Frederic Mills, or Mark Flint; No_rthern Indiana Public Service Company (including its parent company and subsidiaries). including but not limited to Mike Charbonneau, James Newland Jr.. or Brandon Seitz: Vectren Corporation Gncluding its parent company and Subsidiaries), including but not limited to Romad Christian. Carl Chapman. Robert Carmichael, Laurie Thomlon, or Michael Header; Mahern & Associates, Including but not limited to Ed Mahern: Arland Communications. including but not limited lo Dave Arland; Tait Stettinius & Hullister LLP. including but not limited to Elizabeth Murphy, John Coldren, or Mark Palmer; or Ice Miller LLP. including but not limited to Kay Pashos, Kelly Earls. and Melissa Proffitt Reese. Tern' Czajka, Thomas Dimond. 3. 4. 5. . . . 0100‘] . . l et seq.. emails. correspondence. or other fairness," or "fixed charge.” OI Records Act (”APRA"). § 5-14-3-1 have attached Public Access Counselor Luke Britt's advisory opinion regarding Formal Complaint 15-FC—69; Alleged Wolation of the Access Public Records Acrby Indiana House Representative En’c Koch and the Indiana House Republican Caucus. I'o In the opinion, Mr. Nowhere in relation to Records If Britt writes, "It APRA does the the specific records... it should be noted the Indiana Access to Public Records Act applies to the Indiana General Assembly... exempt the General Assembly from its provisions. In fact. it carves out several exemptions for itself statute is the Opinion of the Public Access Counselor the Indiana General Assembty is subject to in the Access to Public Act." you deny any or all oi this requesti please cite each specific exemption you feel justifies the refusal to release the information. Respectfully. Gabe Elsner & Matt Kasper ‘n! Fubh'c Counselor *2 E1 Access .. .lndiana.pdf ENERGYHIDPDUBY INSTITUTE Matt Kasper / Fellow 630-908-961 5/ kasperm @energyandpolipyorg - . . www.energyandpolicy.org "IIIfi__‘_ _.. EXHIBIT: p CI . 7 iBEEEl OFFICE 0F THE PUBLIC Access COUNSELOR ,:g§:;°G§§§§ jnfgg’rfiffsfififi, I FORMAL COMPLAINT MAR 23 2m: 4ozwestw ' State shangtonsmaez Telephone: - 17) ' a This form is to be used only when filing complaints underlndia a provided is disclosable under the Access ta Public Record Act. P INSTRUCTIONS: AI! information f HY? Pgd‘lfgéfig I 0) ( SCO U Nggafig‘l g.“ 21.- ~“‘3—-.—.-'_«_ L5- .- 31 . 46204 234—0906 228-6013 Indianapolis Indiana Form 49407 (R6 [3-14) 44mg-;.u.-£-“-' I*-.M- .' I. . cull: - ' Date due (month. day. year) mpIaxnlnumber Dale received (month day. year) COMPLAINANT INFORMATIbN Name (last, first, Middle Initial) Energy and Policy Institute a Citizens Action Coalition Address (number and sheet) P.O. Box 15790 & 603 E. Washington Street 7-2 Telephone number Stale D.C. ZIP code & 2003 [N 8. __ Fax number $30 (202)297—014 Cfly Washington & Indianapolis E-matl address I e!snerg@energyandpolicy.org ) ( & kolson@citact.org {NFORMATION ABOUT PUBLIC AGENCY DENYING Access Name of pubfic agency Representative Eric Koch and Indiana House Republican Caucus Address (number 'and sheer) 200 West Washington Street 317 Name ) State ZIP code Indianapolis IN 46204 E—mall address Fax nqmbeg' Telephone number ( City 232-9631 ( 317 ) 234-9276 Jill.Camell@iga.in.gov of eleqted/ appointed official or presiding officer re'sponsible for [he denial Representative Eric Ko ch COMPLAINT (Checkan that ap‘pty.) D I E E Open Door Law Violation D U D Executive Session Notice Other. Request for priority status [See Indiana Administrative Code (62 (AC .‘ Public Records Access Violation E D D 1— 1-3).] D Denial of Access Copy Fee Denial of Electronic Access Other. (Mus! include i'n narrative the reason for pn‘on'ty status.) IMPORTANT Date denied access to public record (month, day, year) Date notified of denlal of accesslo meeting (month, day. year) March 16 2015 Please describe denial of access to meeting ar public recalds beIaw. Attach additional sheets if necessary. (Requirew See attachment MZM PLEASE AUACH COPIES OF ANY WRITTEN DENIAL OR DOCUMENTATION CONCERNING DENIAL. Signature I . /V Dale (month, day, year) Mm; 2:, za/r’ 46204 FORMAL PUBLIC ACCESS COMPLAINT The Respoudents, Representative Eric Koch and the House Republican Indiana Caucus, by their officers, agents, and representatives, violated the Indiana Access to Public Records Act on March 16, 2015 by denying the Complainants’ enclosed public records request 0n the grounds, inter alz'a, that it is “not reasonably particular” because “the request months of time and numerous entities, names, and phrases,” and that it “work product” of the “individual members and partisan staffs of the General covers over six requests Assembly,” without explaininghow the requested records axe “work product.” (See-Attached Exhibits A—B). Contary to the Resp0ndcnts, particular because it the Complainants’ public Iecbrds request is feasonably provides the Respondents With enough information to enable them t0 search for, locate, and retu'eve the requested records, and, puxsuant to the Public Access Counselor’sjnstructions regarding requests for email communicau'ons, the request names a fiom outside groups to matter of law and statutory consuucu'on, ‘Work product” of the specific sender, recipient, and-date frame. Furthermore, emails legislators are not, as a legislators and/or their partisan staffs in that, among other reasons, they were not collected or prepared in andcipation of litigation. While the Respondents additionally asserted that they are not subject to the Indiana Access to Public Records Act", this asseru'on has already been considered by the Public Access Cougselor in 15-FC-69, dated March 6, 2015. The Complainants thus only seek the Public Access Counselor’s opinion regarding the work product and reasonable particulan'ty grounds cited by the Respondents in support of their denial The Complainants seek pfioxity status for this complaint pursuant to 62 because the recbrds arc sought, legislative inter alia, for the purpose of presenting proceedings regarding House Bill 1320 and similar related . ifiE’éEWED" MAR 2'13 2015 PUBLIC ACCESS COUNSELOR IAC 1-1-3(3) them to the public in leg'slation. ' STATE 0F INDIANA PUBLFCLzfifEE§§§¥¥SEL°R . Government Center South Street, Room W470 Washington 402 West Indianapolis. Indiana 46204—2745 Telephone: (3 1 7)233-9435 Indiana MICHAEL R PENCE' Gover nor . Fax: (31 7)233-3091 1-800-228-6013 www.lN.gov/pac April 1, 2015 Mr. William R. Groth, Esq. C/o Energy and Policy Institute Box 15790 Washington, D.C. 20003 P.O. ~and- Citizens Action Coalition 603 Bast Washington Street Indianapolis, Indiana 46204 Re: Formal Complaint I5-FC-107; Alleged Violation 0fthe Access t0 Public Records Act by Indiana House Representative Eric Koch and the Indiana House Republican Caucus Dear Mr. Groth, This advisory opinion is in response to the formal complaint alleging Indiana House Koch and House Republican Caucus (“Caucus”), violated (“APRA”) Ind. Code § 5-14-3-1 et. seq. The Caucus your complaint via Ms. Jill S. Camel], Esq, Chief Counsel. Her response is Representative Eric the Indiana the Access t0 Public Records Act responded to I issue the following opinion to your formal complaint received by the Office of the Public Access Counselor 0n March 23, 2015. enclosed for your review. BACKGROUND The complaint dated March violated the Access t0 2015 alleges the Indiana House Republican Caucus Public Records Act by failing to produce information you 23, requested On or about Koch March 9, 2015, a public records request was submitted t0 Representative requesting the following information: documents Any and all emails, correspondence, or other that pertain to “net metering,” “solar energy,” “distrflauted generation,” “electric fairness,” or “fixed charges,” and that were created from September the present, between Representative Eric Koch and [10 different 1, 20 14 t0 named parties].” . EXIZIPIT: On March I6, 2015, Chief Coun'sel for the Caucus acknowledged and denied your request aIguing that the Indiana Access to Public Records Law was inapplicable to the Indiana General Assembly. Additionally, counsel cites Ind. Code§ 5-14—3—4(b), alleging the conversations arc work product of the legislature. Finally, request is not reasonably particular because it counsel contends your involves ten different parties and a time pen'od of six months. ANALYSIS The public policy of the APRA “a (p)roviding person with information is an of a representative government and an integral part of the routine duties ofpublic officials and employees, whose duty it is t0 provide the information.” See Ind. Code § 5-14-3-1. As it stated in Opinion ofthe Public Access Counselor 15-FC-69, the Indiana House Republican Caucus is a public agency for thé purposes 0f the APRA. See Ind. Code § 5-14-3-2(n)(1). Any person has the right to inspect and copy the Caucus’s states that essential function public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14— 3- 3(a).' Although not defined in the APRA, the Indiana Court of Appeals addressed the issue of reasonable particularity in the APRA in Jent v. Fort Wayne Police Dept, 973 N.E.2d 30 App. 2012), and again in Anderson v. Huntington County Bd. ofCom’rs., 983 N.E.2d 613 (Ind. Ct. App. 2013). The Court in Jent held: (Ind. Ct. Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records. Furthermore, in Opinion ofthe Public Access Counselor 14-INF 30, I opined: Consider the definition of particularity in The New International Webster’s Dictionary and Thesaurus, Encyclopedic Ed., 200: “exactitude in description; circumstantiality; stn'ct or careful attention to detail; fastidiousness.” I do believe voluminous_records requests can meet that standard and agencies are required to satisfy voluminous requests, but to 1 The holdings a1. v. Crawford enforceability in Masariu e! aL, v. 771a Marion Superior Cour! No. 990 N.E.2d 410 of internal (Ind. 2013). relied legislative procedures. Public Records Act to the legislature. There General Assembly from the Office has traditionally APRA. Judicial been consistent in is l, 621 N.E.2d 1097 (Ind. 1993) and Berry e! upon by the Caucus, exclusively address judicial The case doés not address applicability of the Access no authority in case enforceability this holding. and applicability are mutually e'xclusive. This See also the Opinions oflhe Public Access Counselor 03-FC-62; and 03-FC-31 (“The House ofRepresenIatives purposes ofthe APRA"). to law or statute exempting the Indiana 1's clearly a public agencyfor the meet the reasonable particularity standard, they cannot be blanket requests. When it comes to email, I generally rely on the guidance provided by the Court in Anderson. The Court agreed with former Public Access Counselor Hoage that a reasonably particular request names a specific Iwould also contend a specific request would include one or more key words for a search parameter. sender, recipient, and date frame. In your amended request, you have seemingly satisfied the elements of Specificity Your request appears to meet the standard set considered to be reasonably particular. forth by the APRA. Furthermore, buttressing the applicability argument, the General Assembly has carved itself out an exception for work product pursuant to Ind. Code § 5-14-3-4(b)(14). The Caucus references the work product this exception to disclosure in its denial. is at The disclosure or denial of the discretion of the legislature. — charged with the responsibility of making recommendations to the General Asscmbly in regard to access issues — considers the legislature to be subj ect to the APRA. The intent of the APRA is to foster trust and As discussed in the footnote above, this Office good between the public and the government. It is a safeguard for accountability and stewardship for civil servants. I am confident the General Assembly strives to espouse faith As Indiana Public Access Counselor, I humbly and respectfully request the Caucus reconsider its position on the blanket inapplicability of the Access to Public Records Act and treat public records requests in a manner consistent with the spirit of those virtues. tranSparency and openness. That being said, this Office also recognizes the importance of maintaining the integrity of the legislative process. This includes legislator-constituent communication channels. Work product of legislators is not defined in Indiana Code or case law. Although there is no explicit legislator—constituent privilege, the Masariu and Berry cases suggest the General Assembly has the discretion to define their own work product. To the extent the legislature may define work product to include the type of information you seek, I implore the General Assembly to be judicious in deciding what to withhold and what to release. It indeed requires a delicate balance, but the scales should favor transparency. Regards, / Luke H. Britt Public Access Counselor Co: MS. Jill S. Camel], Esq.