IN THE
Court of Appeals of Indiana Theodore Rokita, FILED Appellant/Cross-Appellee-Defendant Apr 29 2024, 8:44 am
CLERK Indiana Supreme Court v. Court of Appeals and Tax Court
Barbara Tully, Appellee/Cross-Appellant-Plaintiff
April 29, 2024 Court of Appeals Case No. 23A-PL-705 Appeal from the Marion Superior Court The Honorable Kurt Eisgruber, Judge Trial Court Cause No. 49D06-2107-PL-25333
Opinion by Judge Kenworthy Chief Judge Altice and Judge Foley concur.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 1 of 23 Kenworthy, Judge.
Case Summary [1] Barabara Tully requested information from the Office of the Indiana Attorney
General (“OAG”) regarding an informal advisory opinion issued to Attorney
General Theodore Rokita by the Indiana Office of Inspector General (“OIG”).
The OAG declined to give Tully access, claiming the opinion was confidential
and not subject to disclosure under Indiana’s Access to Public Records Act
(“APRA”). After the Indiana Public Access Counselor (“PAC”) also
concluded the opinion was excepted from disclosure, Tully sued Attorney
General Rokita, alleging a violation of APRA. The trial court granted Tully
summary judgment and Attorney General Rokita appealed.
[2] But while this appeal was pending, the Indiana General Assembly added a
wrinkle: it amended the statute relating to the Inspector General’s duties and
made that amendment retroactive. The amended statute explicitly provides the
Inspector General’s informal advisory opinions are confidential and excepted
from disclosure under APRA. Based on this turn of events, we reverse and
remand with instructions.
Facts and Procedural History A. Indiana Office of Inspector General
[3] Created in 2005, the OIG is tasked with “addressing fraud, waste, abuse, and
wrongdoing” in state agencies. Ind. Code § 4-2-7-2(b). To help achieve this
goal, the General Assembly directed the OIG to implement a code of ethics for Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 2 of 23 state government through rulemaking. See I.C. §§ 4-2-7-3(6), 4-2-7-5(a). The
OIG did so by establishing the Indiana Code of Ethics. See 42 Ind. Admin.
Code 1-1-1 et seq. Relevant to this appeal are Rules 5 and 8 of that Code. 42
I.A.C. 1-5-1 et. seq (“Rule 5”); 42 I.A.C. 1-8-1 (“Rule 8”). Rule 5 sets forth the
Ethics Rules, one of which specifically concerns outside-employment
restrictions for state employees. See 42 I.A.C. 1-5-5. Rule 8 grants the
Inspector General, or its designee, the “authority to render informal advisory
opinions.” 42 I.A.C. 1-8-1(a). Such opinions are “expressions of opinion that
are communicated for the purpose of deliberation and decision making” that
“shall be considered confidential under IC 5-14-3-4(b)(6).” 42 I.A.C. 1-8-1(b).
Through Rule 8’s process, the OIG issues around 215 to 375 informal advisory
opinions per year to Indiana state employees seeking prospective ethical advice.
See Appellant’s App. Vol. 2 at 161.
B. Indiana Access to Public Records Act
[4] In 1983, the Indiana General Assembly passed APRA 1 with the express
purpose that “all persons are entitled to full and complete information regarding
the affairs of government and the official acts of those who represent them as
public officials and employees.” I.C. § 5-14-3-1. To serve this purpose, APRA
provides: “Any person may inspect and copy the public records of any agency
during the regular business hours of the agency.” I.C. § 5-14-3-3(a). And
1 See I.C. §§ 5-14-3-1 through 5-14-3-10.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 3 of 23 because APRA is intended to ensure Hoosiers have broad access to most
government records, APRA is to be “liberally construed,” and places the
burden for nondisclosure of a public record “on the public agency that would
deny access to the record and not on the person seeking to inspect and copy the
record.” I.C. § 5-14-3-1.
[5] However, certain categories of public records are excepted from APRA’s
disclosure requirement. See I.C. § 5-14-3-4. Some records are excepted unless
disclosure is specifically required by statute or court order, I.C. § 5-14-3-4(a),
while others are excepted at the discretion of a public agency, I.C. § 5-14-3-4(b).
A member of the public or a public agency can make an informal inquiry or
request a formal advisory opinion from the PAC regarding whether a document
is subject to disclosure under APRA. See I.C. § 5-14-4-10(5), (6).
[6] But an opinion from the PAC does not have to be the end of the road. Rather,
a person denied access to a public record may file an action in court “to compel
the public agency to permit the person to inspect and copy the public record.”
I.C. § 5-14-3-9(e). If the plaintiff seeking disclosure prevails in the court action,
the court “shall” award reasonable attorney fees, court costs, and expenses if
the plaintiff first sought and received an informal inquiry response or formal
advisory opinion from the PAC. 2 I.C. § 5-14-3-9(i).
2 Due to this incentive, most cases involving APRA begin as complaints with the PAC. See, e.g., ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192 (Ind. 2016); Citizens Action Coal. of Ind. v. Koch, 51 N.E.3d 236
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 4 of 23 C. Tully’s APRA Request and Subsequent History
[7] Soon after Attorney General Rokita assumed office in January 2021, he sought
and received an informal advisory opinion from the OIG relating to the ethical
implications of his continued outside employment with Apex Benefits. A few
weeks later, the Indianapolis Business Journal ran an article about the OIG
opinion. In the article, a spokesperson for the OAG confirmed Attorney
General Rokita had sought and received an opinion from the OIG and assured
the opinion clarified Attorney General Rokita’s “interests and outside
employment are all squarely within the boundaries of the law and do not
conflict with his official duties.” Appellant’s App. Vol. 2 at 51.
[8] Tully then submitted a written public records request to Attorney General
Rokita seeking access to the OIG opinion. When the OAG refused to provide
her with a copy, claiming the OIG opinion was confidential under Rule 8, Tully
turned to the PAC. And after the PAC agreed with the OAG that the opinion
was confidential under Rule 8 and not subject to disclosure under APRA, Tully
sued Attorney General Rokita.
[9] In the trial court, both parties moved for summary judgment. According to
Attorney General Rokita, the deliberative materials exception to disclosure
specifically referenced in Rule 8 excepted the OIG opinion he received from
disclosure. See I.C. § 5-14-3-4(b)(6). The trial court disagreed and granted Tully
(Ind. 2016); see also Courtney Abshire, Public Business is the Public’s Business: Koch’s Implications for Indiana’s Access to Public Records Act, 52 Ind. L. Rev. 455, 458 (2019).
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 5 of 23 summary judgment, finding Rule 8 “is not harmonious” with Rule 5.
Appellant’s App. Vol. 2 at 14. In the trial court’s view, accepting Attorney
General Rokita’s reasoning “would allow a state employee to determine
whether to request an informal advisory opinion under Rule 8, or be subject to
a more public review by the [Ethics] Commission subject to APRA.” Id. at 15.
The trial court reasoned “[s]uch a work around would allow the [OIG] to
promulgate rules which clearly exceed the [OIG’s] statutory authority” and
“circumvent the purpose of the [Code of Ethics] Rules.” Id.
[10] After ruling in Tully’s favor, the trial court invited Attorney General Rokita to
present a redacted copy of the OIG opinion, which was to be issued to Tully. 3
Rather than redact, Attorney General Rokita appealed. 4
[11] Ordinarily, the facts would end there. Here, though, the Indiana General
Assembly amended Indiana Code Section 4-2-7-3 effective July 1, 2023—i.e.,
while this appeal was pending. 5 The amendment inserted a new subsection
relating to the Inspector General’s duties:
The inspector general shall . . . [p]rovide informal advisory opinions to current, former, and prospective state employees, state officers, and special state appointees. An informal advisory opinion issued by the office of the inspector general is
3 The trial court stayed the execution of judgment until fifteen days after the resolution of any appeal. 4 Tully cross-appealed, claiming the trial court erred by not awarding her attorney’s fees and by allowing Attorney General Rokita to redact the OIG opinion “without limitation.” Appellee/Cross-Appellant’s Br. at 37. 5 Attorney General Rokita filed his Notice of Appeal on March 29, 2023. Neither party filed an appellate brief in this case prior to July 20, 2023.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 6 of 23 confidential under IC 5-14-3-4, including any previously issued informal advisory opinion by the office of the inspector general that recites that it is confidential.
I.C. § 4-2-7-3(9) (2023) (“Subsection 9”). 6 Thus, Subsection 9 changed the
playing field by purporting to resolve any dispute over the scope of the OIG’s
authority to grant confidential informal advisory opinions; Subsection 9 says
the OIG may do so.
[12] Because of this change, the parties’ arguments on appeal differ from those
presented below. On appeal, Attorney General Rokita claims we should apply
Subsection 9, which “completely resolves” this appeal in his favor. Appellant’s
Br. at 16. Tully counters, arguing applying Subsection 9 to this case violates
Article 3, Section 1 and Article 4, Section 19 of the Indiana Constitution.
Additionally, Tully contends even if the OIG opinion is confidential, Attorney
General Rokita waived confidentiality through the OAG spokesperson’s
comment to the Indianapolis Business Journal regarding the OIG opinion.
Ultimately, the parties agree there are no issues of material fact, and this appeal
turns solely on questions of law.
Standards of Review [13] We review summary-judgment decisions de novo, applying the same standard as
the trial court. Miller v. Patel, 212 N.E.3d 639, 644 (Ind. 2023). Summary
6 Compare I.C. § 4-2-7-3 (2019), with I.C. § 4-2-7-3 (2023) (adding duty to issue confidential informal advisory opinions).
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 7 of 23 judgment is appropriate only when “the designated evidentiary matter shows
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). Parties
filing cross-motions for summary judgment “neither alters this standard nor
changes our analysis—‘we consider each motion separately to determine
whether the moving party is entitled to judgment as a matter of law.’” Erie
Indem. Co. for Subscribers at Erie Ins. Exch. v. Est. of Harris by Harris, 99 N.E.3d
625, 629 (Ind. 2018) (quoting SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 677
(Ind. 2015)). Summary judgment “is a desirable tool to allow the trial court to
dispose of cases where only legal issues exist.” Hughley v. State, 15 N.E.3d
1000, 1003 (Ind. 2014) (quoting Clipp v. Weaver, 451 N.E.2d 1092, 1093 (Ind.
1983)).
[14] We also review pure questions of law de novo, including statutory and
constitutional claims. 7 Morales v. Rust, 228 N.E.3d 1025, 1033 (Ind. 2024).
7 The “longstanding principle of constitutional avoidance . . . weighs against deciding constitutional questions not absolutely necessary to a merits disposition.” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (quoting Ind. Land Tr. Co. v. XL Inv. Props. LLC, 155 N.E.3d 1177, 1182 (Ind. 2020)). As a result, our Supreme Court has “repeatedly refused to adjudicate constitutional questions when presented with other dispositive issues.” State v. Katz, 179 N.E.3d 431, 441 (Ind. 2022) (internal quotation omitted); see also Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (“[C]onstitutional issues are to be avoided as long as there are potentially dispositive statutory or common law issues still alive.”), cert. denied. Put simply, non- constitutional claims come first, constitutional claims come last. See Sonnenburg, 573 N.E.2d at 402. As discussed, Subsection 9 eliminated potential non-constitutional grounds on which this case might have been decided—whether the OIG exceeded its authority by issuing confidential informal advisory opinions under Rule 8 and whether the OIG opinion is confidential under the deliberative materials exception in APRA (Indiana Code Section 5-14-3-4(b)(6)). Thus, we turn to what remains. In adhering to our Supreme Court’s directive, we first address whether Attorney General Rokita waived any potential claim to confidentiality before turning to whether Subsection 9 survives Tully’s constitutional challenges. In this sense, we resolve
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 8 of 23 1. Attorney General Rokita Did Not Waive Confidentiality [15] First, we address Tully’s remaining non-constitutional claim. According to
Tully, even if the OIG informal advisory opinion is confidential, Attorney
General Rokita waived confidentiality when a spokesperson for the OAG
disclosed the opinion’s “essential conclusions to the public[.]” Appellee/Cross-
Appellant’s Br. at 21.
[16] Waiver is the voluntary and intentional relinquishment of a known right, claim,
or privilege. Ashby v. Bar Plan Mut. Ins., 949 N.E.2d 307, 312 (Ind. 2011).
Although APRA contains no waiver provision, a public agency can waive the
exceptions to public disclosure. See Unincorporated Operating Div. of Ind.
Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 918–19 (Ind. Ct. App.
2003), trans. denied.
[17] In Indiana Newspapers, the Indianapolis Star sought access to materials held by
the trustees of Indiana University. The Star requested records—under APRA—
relating to Indiana University’s investigation into then-head basketball coach
Bob Knight’s alleged inappropriate behavior, including choking basketball
player Neil Reed during practice. Id. at 898. The Star claimed it was entitled to
the records because, among other reasons, the trustees waived all applicable
Tully’s constitutional claims only after exhausting any potential dispositive statutory or common law issues—i.e., as a last resort.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 9 of 23 APRA exceptions by selectively disclosing materials relating to the
investigation. Id. at 916.
[18] A panel of this Court disagreed with the Star, holding disclosure of a three-page
report containing a “very generalized overview with very little specific
information concerning the underlying investigatory materials and without the
quotation of extensive and integral portions” of the investigatory materials was
not “the sort of release of otherwise non-discloseable [sic] information sufficient
to warrant waiver of any of the APRA exceptions.” Id. at 919–20. Although
not essential to its conclusion, the court also envisioned a situation in which a
state agency might relinquish protections afforded by APRA’s exceptions if “an
agency allowed one party access to materials and then in turn denied another
party access to the same materials based upon an exception to APRA[.]” Id. at
919. After all, if an agency “has already disclosed the allegedly non-
discloseable [sic] materials, the purpose of the APRA exceptions will have
already been compromised.” Id.
[19] In this case, the OAG spokesperson’s statement confirming Attorney General
Rokita had sought and received an OIG opinion and assuring the opinion
clarified Attorney General Rokita’s “interests and outside employment are all
squarely within the boundaries of the law and do no conflict with his official
duties” is like the “very generalized overview with very little specific
information” deemed insufficient to constitute waiver in Indiana Newspapers.
Appellant’s App. Vol. 2 at 51; Ind. Newspapers, 787 N.E.2d at 919. Rather than
divulge the specifics of the opinion, the OAG spokesperson’s comment
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 10 of 23 conveyed the opinion’s general conclusion, but nothing more. Under these
circumstances, we cannot say the spokesperson’s statement was disclosure
sufficient to waive the protections of APRA’s exceptions. Nor does this case
present the type of selective disclosure waiver hypothesized in Indiana
Newspapers. Neither the OAG nor Attorney General Rokita allowed one party
access and then denied access to another party. So, although a party may waive
APRA’s exceptions to disclosure, Attorney General Rokita has not done so
here. 8
2. Indiana Code Section 4-2-7-3(9) Is Expressly Retroactive and Applies Here [20] “Generally, a statute applies prospectively unless it expressly states otherwise.”
Guzzo v. Town of St. John, 131 N.E.2d 179, 180 (Ind. 2019). There is no general
prohibition on applying retroactive laws to cases pending on appeal. See, e.g.,
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226 (1995) (“When a new law
makes clear that it is retroactive, an appellate court must apply that law in
reviewing judgments still on appeal that were rendered before the law was
enacted, and must alter the outcome accordingly.”). Courts must generally
8 In the alternative, Tully claims Attorney General Rokita is equitably estopped from asserting confidentiality regarding the OIG opinion following the OAG spokesperson’s comment. In substance, however, Tully’s argument boils down to Attorney General Rokita should not be able to wield confidentiality “offensively rather than defensively.” Appellee/Cross-Appellant’s Br. at 24 (citing Purdue Univ. v. Wartell, 5 N.E.3d 797, 807 (Ind. Ct. App. 2014)). Interpreted either way, Tully’s claim does not prevail. “Under Indiana law, equitable estoppel can be applied only if three elements are shown: lack of knowledge, reliance, and prejudicial effect.” Doe v. Carmel Operator, LLC, 160 N.E.3d 518, 520 (Ind. 2021). Tully has not argued, let alone shown, how she has satisfied these elements. Further, we do not view Attorney General Rokita’s assertion of confidentiality as the type of offensive privilege invocation warned against in Wartell’s dicta.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 11 of 23 honor the legislature’s choice to make a law retroactive unless doing so would
violate a vested right or constitutional guarantee. Bourbon Mini-Mart, Inc. v. Gast
Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind. 2003) (“Ultimately . . . whether or
not a statute applies retroactively depends on the Legislature’s intent.”)
[21] Our first task when interpreting words in a statute is to assign them their plain
meaning. Rust, 228 N.E.3d at 1054. “If we neglected this elemental task, ‘we
would be rewriting’ unambiguous language, and therefore disrupting our
‘separation-of-powers because it is the legislature that writes and revises statutes
while [courts] merely interpret and apply them.’” Id. (quoting Ind. Right to Life
Victory Fund v. Morales, 217 N.E.3d 517, 524 (Ind. 2023)).
[22] The language of Subsection 9 plainly states it applies to “any previously issued
informal advisory opinion by the office of the inspector general that recites that
it is confidential.” I.C. § 4-2-7-3(9). An enacted statute’s language is the best
evidence of legislative intent. See Holcomb v. Bray, 187 N.E.3d 1268, 1285 (Ind.
2022). And we must honor the legislature’s intent for Subsection 9 to apply
retroactively, so long as doing so does not violate a vested right or
constitutional guarantee owed to Tully. See Bourbon, 783 N.E.2d at 260.
3. Indiana Code Section 4-2-7-3(9) Is Not Unconstitutional [23] Tully asserts applying Section 9 retroactively to this case would violate two
provisions of the Indiana Constitution: Article 3, Section 1 (distribution of
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 12 of 23 powers); and Article 4, Section 19 (single-subject requirement). 9 When faced
with a question under Indiana’s Constitution, we must examine “the language
of the text in the context of the history surrounding its drafting and ratification,
the purpose and structure of our Constitution, and case law interpreting the
specific provisions.” Holcomb, 187 N.E.3d at 1277 (quoting Hoagland v. Franklin
Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 741 (Ind. 2015)). We treat the language
in each provision with “deference, as though every word had been hammered
into place.” Id. (quoting Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013)).
Ultimately, the challenger bears a high burden because all laws come to us
“cloaked with ‘the presumption of constitutionality until clearly overcome by a
contrary showing.’” Rust, 228 N.E.3d at 1033 (quoting Horner v. Curry, 125
N.E.3d 584, 588 (Ind. 2019)).
A. No Violation of Article 3, Section 1
[24] The Indiana Constitution vests the General Assembly with the “[l]egislative
authority,” of the State, Ind. Const. art. 4, § 1, and our state courts with the
“judicial power,” id. art. 7, § 1. Although the Constitution of the United States
“implicitly mandates” the separation of powers at the federal level, Indiana’s
9 Based on the timing of the legislature’s amendment—prior to any briefing in this case—each party was given, and took advantage of, a full and fair opportunity to develop their claims regarding application of Subsection 9 to this case. And given our standard of review—de novo—we owe no deference to the trial court’s decision. See Rust, 228 N.E.3d at 1033. Additionally, there are no issues of fact for the trial court to resolve if we were to remand. For these reasons we address the merits of the parties’ claims even though the trial court has not specifically weighed in on the issue. Cf., Guzzo, 131 N.E.3d at 180 (remanding in light of intervening, retroactively applicable amendment to pertinent statute in order for the trial court to, in part, make a factual determination).
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 13 of 23 constitution—and the constitutions of many other states—“clearly and
explicitly command[s] that each branch of state government respect the
constitutional boundaries of the coordinate branches.” Berry v. Crawford, 990
N.E.2d 410, 415 (Ind. 2013); Ind. Const. art. 3, § 1 (prohibiting each branch
from “exercise[ing] any of the functions of another, except as in this
Constitution expressly provided”). 10 The doctrine of separation of powers “is
the keystone of our form of government” and “recognizes that each branch of
the government has specific duties and powers that may not be usurped or
infringed upon by the other branches of government.” State v. Doe, 987 N.E.2d
1066, 1072 (Ind. 2013) (quotations omitted).
[25] As our Supreme Court has made clear, federal separation of powers decisions
do not determine the distribution of powers under Article 3 of the Indiana
Constitution. Sonnenburg, 573 N.E.2d at 404; see also Katz, 179 N.E.3d at 445
(explaining interpretation of an Indiana Constitutional provision is “an
independent judicial act” from a similar analysis under the Federal
Constitution). That said, decisions from federal courts may “nonetheless [be]
persuasive,” although we stop short of granting them deference or precedential
status. Katz, 179 N.E.3d at 445 (quoting City of Indianapolis v. Wright, 371
N.E.2d 1298, 1300 (Ind. 1978)). And when interpreting Article 3, Section 1,
10 In full, Article 3, Section 1 of the Indiana Constitution provides: The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 14 of 23 our Supreme Court has sometimes turned to “helpful” cases from other
jurisdictions. See, e.g., Berry, 990 N.E.2d at 415–16; see also State v. Monfort, 723
N.E.2d 407, 413 (Ind. 2000) (noting the central principles of separation of
powers underlying the thinking of the framers of the Federal Constitution were
shared by the framers of the Indiana Constitution).
[26] Tully contends retroactively applying Subsection 9 to this case violates Article
3, Section 1 of Indiana’s Constitution. According to Tully, the legislature “does
not have authority to retrospectively void a final court judgment[.]”
Appellee/Cross-Appellant’s Br. at 30. Thus, she believes the legislature “usurped
judicial powers and prerogatives” by invalidating her “vested interest in [the
trial court’s] final judgment.” Id.
[27] In one respect, Tully is correct: the legislature cannot, consistent with the
doctrine of separation of powers, set aside a final judgment of a court. 11
Lemmon v. Harris, 949 N.E.2d 803, 814 (Ind. 2011) (describing this principle as
“well-settled”). That said, the crux of Tully’s claim is based on a
misinterpretation of “final judgment,” as used in this context. Important here,
there is “a distinction between judgments from which all appeals have been
forgone or completed, and judgments that remain on appeal (or subject to being
appealed)[.]” Plaut, 514 U.S. at 227.
11 As used here, “final judgment” does not have the same meaning as in Indiana’s Rules of Appellate Procedure. See Ind. Appellate Rule 2(H); see also DeCola v. Norfolk S. Corp., 222 N.E.3d 938, 939 (Ind. 2023).
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 15 of 23 [28] Article 7, Section 1 of the Indiana Constitution vests the “judicial power of the
State” in “one Supreme Court, one Court of Appeals, Circuit Courts, and such
other courts as the General Assembly may establish.” 12 In much the same way
Article III of the United States Constitution creates a “judicial department
composed of ‘inferior Courts’ and ‘one supreme Court’” and “not a batch of
unconnected courts,” so too does Indiana’s Constitution. Plaut, 514 U.S. at
227. The Indiana Supreme Court sits atop Indiana’s court structure; it is the
Hoosier-state’s court of last resort. One step below are intermediate appellate
courts—including this Court. And going down one step further are the trial
courts. All these courts are connected through Indiana’s greater judicial
structure.
[29] Within Indiana’s hierarchy of courts, the decision of a trial court is not—unless
the time for appeal has expired—the final word of our judicial department as a
whole. Rather, the obligation of expounding the department’s final word lies
with the last court in the hierarchy to rule on the case. And in so doing, the
court must give effect to the legislature’s latest enactment, even when that has
the effect of overturning a judgment of a lower court. See, e.g., Columbus, C. & I.
Co. v. Bd. of Comm’rs of Grant Cnty., 65 Ind. 427, 442 (1878) (noting courts “do
not question the power of the Legislature to enact general laws, regulating the
practice in courts of justice, which may materially affect or change the decision
12 In 1881, the word “other” in Article 7, Section 1 replaced the word “inferior.” See Ex parte France, 95 N.E. 515, 518 (Ind. 1911).
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 16 of 23 of causes pending before the courts”); see also Plaut, 514 U.S. at 227. Once a
decision reaches finality—meaning no further appeal may be taken—it becomes
the last word of the judicial department regarding that case. At this point, the
legislature cannot “declare by retroactive legislation that the law applicable to
that very case was something other than what the courts said it was.” Plaut, 514
U.S. at 227; see also Thorpe v. King, 227 N.E.2d 169, 170–71 (Ind. 1967).
[30] The cases Tully cites support the principle she recounts, but not her definition
of “final judgment.” 13 For example, in Thorpe, the Board of County
Commissioners of Lake County passed an ordinance to incorporate the
purported Town of Cedar Lake. 227 N.E.2d at 170. The Lake Superior Court
declared the ordinance void. Id. The time to appeal the court’s decision then
expired. Id. Just under two months later, the General Assembly sought to
legalize the purported incorporation of the Town of Cedar Lake by declaring
the acts taken to incorporate the town “sufficient.” Id. Our Supreme Court
declared the General Assembly’s act was “unconstitutional and ineffective”
because it would have “the legal effect of setting aside and nullifying a final
decree of the Lake Superior Court.” Id. The Court recognized to “hold
otherwise might be construed that this Court recognizes the right of the
13 Tully also relies on Toomey v. Ind. Dep’t of Correction, 49C01-1501-PL-3142 (Marion Cnty. Cir. Ct. Nov. 29, 2018). On appeal in the Indiana Supreme Court, the trial court’s order ruling against the Department of Correction for multiple reasons was affirmed pursuant to Indiana Appellate Rule 59(B). Ind. Dep’t of Correction v. Toomey, 162 N.E.3d 1099 (Mem) (Ind. 2021); see also App. R. 59(B) (“When the Supreme Court Justices participating are evenly divided in such an appeal, the trial court judgment shall be affirmed.”). Therefore, it is challenging to glean helpful guidance from Toomey’s outcome.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 17 of 23 legislative branch of government to encroach upon the judicial branch of
government,” thereby violating Article 3, Section 1. Id; see also Horner, 125
N.E.3d at 589 n.4 (recognizing Thorpe held the legislature cannot set aside final
judgment of a court).
[31] But Thorpe is notably different from this case. The trial court’s judgment in
Thorpe was “final” because the time for appeal had expired. Here, not so;
Attorney General Rokita timely appealed. If we were to accept Tully’s position
that the legislature divested her of a final judgment, we would be creating a rule
which prohibits the legislature from ever applying laws retroactively to pending
appeals in which a trial-court order has been entered. This rule would conflict
with the federal rule, see Plaut, 514 U.S. at 216, and might result in our state’s
judiciary infringing upon the legislature’s province to write and revise the law,
see Ind. Const. art. 4, § 1; see also Berry, 990 N.E.2d at 415 (cautioning “[c]ourts
should be very careful not to invade the authority of the legislature . . . for if
they overstep the authority which belongs to them, and assume that which
pertains to the legislature, they violate the very constitution which they thereby
seek to preserve and maintain”) (quotation omitted). We therefore decline to
fashion such a rule.
[32] In sum, it is “well-settled under the doctrine of separation of powers that the
Legislature cannot interfere with the discharge of judicial duties or set aside a
final judgment of a court.” Lemmon, 949 N.E.2d at 814. In this context, a final
judgment is one from which no further appeal can be had. Applying this
principle here, we detect no violation of the separation of powers mandate of
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 18 of 23 Article 3, Section 1 because—for these purposes—the trial court’s order
granting Tully summary judgment was not a “final judgment.” It could be—
and, in fact, was—timely appealed. 14
B. No Violation of Article 4, Section 19
[33] Next, Tully claims applying Subsection 9 to this case violates Article 4, Section
19 of Indiana’s Constitution:
An act, except an act for the codification, revision or rearrangement of laws, shall be confined to one subject and matters properly connected therewith.
Ind. Const. art. 4, § 19. 15 The purpose of this provision is two-fold: (1) “to
prevent surprise or fraud in the Legislature by means of a provision or
provisions in a bill of which the title gave no information to persons who might
be subject to the legislation under consideration” and (2) “to prevent a
combination of nonrelated subjects in the same act.” Loparex, 964 N.E.2d at 813
(quoting State ex rel. Ind. Real Est. Comm’n v. Meier, 190 N.E.2d 191, 193 (Ind.
1963)).
14 At least in part, Tully’s opposition to applying Subsection 9 to her case stems from alleged “gamesmanship” by Attorney General Rokita and the OAG surrounding the passage of the amendment. Appellee/Cross-Appellant’s Br. at 34. These are not claims we can entertain. We look to the language of the statute itself and our venture stops there. See e.g., N.G. v. State, 148 N.E.3d 971, 976 (Ind. 2020) (Slaughter, J., dissenting) (explaining, as courts, we should not speculate about legislative motives, because “whatever those are—and often they are elusive—they are not the law”). 15 Since the ratification of Indiana’s 1851 Constitution, the text of Article 4, Section 19 has been amended twice: in 1960 and again in 1974. See Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806, 812–13 (Ind. 2012) (discussing the amendments).
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 19 of 23 [34] Thus, “if there is any reasonable basis for grouping together in one act various
matters of the same nature, and the public cannot be deceived reasonably
thereby, the act is valid.” Id. (quoting Stith Petroleum Co. v. Dep’t of Audit &
Control, 5 N.E.2d 517, 521 (Ind. 1937)). In other words, we “indulge in a very
liberal interpretation rather than a critical and strict construction calculated to
defeat the act.” Dorch v. Lugar, 266 N.E.2d 25, 31 (Ind. 1971), abrogated on other
grounds by Collins v. Day, 644 N.E.2d 72 (Ind. 1994); see also Dague v. Piper
Aircraft Corp., 418 N.E.2d 207, 214 (Ind. 1981) (explaining our Supreme Court
“has traditionally given broad interpretation to the one-subject requirement,
and thereby allowed legislative combinations of matters which, at first blush,
might appear quite diverse”); but see A.B. v. State, 949 N.E.2d 1204, 1227 (Ind.
2011) (Sullivan, J., concurring in part) (reminding “the General Assembly has
been given substantial deference but not carte blanche”).
[35] The 123rd General Assembly passed P.L. 201-2023, entitled “AN ACT to
amend the Indiana Code concerning state and local administration and to make
an appropriation.” Subsection 9 was included in P.L. 201-2023. And, as
mentioned, Subsection 9 clarified the Inspector General’s duty to issue
confidential informal advisory opinions. This provision has at least some
rational connection to P.L. 201-2023’s general purpose of efficient state
administration and appropriation. See, e.g., Ind. State Teachers Ass’n v. Bd. of Sch.
Comm’rs of the City of Indianapolis, 679 N.E.2d 933, 935–36 (Ind. Ct. App. 1997)
(upholding legislation which restricted the collective bargaining rights of public-
school teachers in Indianapolis as part of the state’s budget bill even though the
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 20 of 23 connection was “tenuous at best”). In fact, the provisions of P.L. 201-2023 are
no less unrelated than legislation combining the Products Liability Act with
amendments to the Indiana Code for courts and court officers. See Dague, 418
N.E.2d at 213–15 (upholding constitutionality of such a combination).
Therefore, grouping the amendment to Section 4-2-7-3 with the other provisions
of P.L. 201-2023 seems reasonable, and we cannot say doing so violated Article
4, Section 19.
C. Courts Do Not Set Public Policy, the Legislature Does
[36] The General Assembly made the policy decision that the OIG’s duties should
include issuing confidential informal advisory opinions and that previously
issued opinions should also be confidential if the opinion says so. As our
Supreme Court has reminded:
The legislature’s policy choices, so long as they are constitutional, are beyond our purview. We neither applaud the wisdom of such choices nor condemn their folly. We simply assess their legality. Once we determine they pass muster, our task concludes.
KS&E Sports v. Runnels, 72 N.E.3d 892, 907 (Ind. 2017). Put simply, the
legislature makes the law and courts interpret the law as written. Ind. Const.
art. 4, § 1; Marbury v. Madison, 1 Cranch 137, 177 (1803) (declaring it is
“emphatically the province and duty of the judicial department to say what the
law is”). Having interpreted the challenged statute, we conclude it falls within
the legislature’s broad discretion and does not run afoul of the Indiana
Constitution. Therefore, we heed “our limited constitutional role” and leave Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 21 of 23 this policy decision to our coordinate department—the legislature. Rust, 228
N.E.3d at 1045; see also Ind. Const. art. 3, § 1.
Conclusion [37] Subsection 9 grants the OIG power to issue informal advisory opinions, such as
the one requested and received by Attorney General Rokita. Subsection 9 also
makes such opinions confidential under APRA’s exceptions to disclosure,
including on a retroactive basis. Having determined Subsection 9 survives
Tully’s constitutional challenges and Attorney General Rokita did not waive
confidentiality, we reverse and remand with instructions that the trial court
grant Attorney General Rokita’s cross-motion for summary judgment. 16
[38] Reversed and remanded.
Altice, C.J., and Foley, J., concur.
ATTORNEYS FOR APPELLANT Theodore E. Rokita Attorney General for Indiana James Bopp, Jr. Melena S. Siebert The Bopp Law Firm, PC Terre Haute, Indiana
16 Based on this result, Tully has not “substantially prevail[ed]” such that she is statutorily entitled to attorney fees and court costs. See I.C. § 5-14-3-9(i). And because the OIG opinion issued to Attorney General Rokita is confidential and excepted from disclosure under APRA, we cannot say the trial court erred in allowing Attorney General Rokita to redact the OIG opinion.
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 22 of 23 ATTORNEYS FOR APPELLEE William R. Groth Daniel Bowman Bowman & Vlink, LLC Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-PL-705 | April 29, 2024 Page 23 of 23