The entrance to the Indiana Supreme Court’s Statehouse courtroom. Photo by Whitney Downard, Indiana Capital Chronicle.

By Leslie Bonilla Muñiz
Indiana Capital Chronicle

INDIANAPOLIS — Indiana’s Supreme Court on Friday denied Attorney General Todd Rokita’s call to dismiss a second disciplinary action against him — both stemming from public comments made three years ago about his investigation of an Indianapolis abortion provider.

“It is exceptionally rare for respondents to file motions to dismiss disciplinary complaints, and even rarer that we grant them,” Justice Derek Molter wrote in the unanimous opinion.

The high court’s denial came without prejudice — allowing Rokita to potentially refile — “because we conclude the arguments he makes in his motion are better addressed through the hearing process and our subsequent review,” Molter continued.

The court appointed a three-member hearing panel instead of its typical lone hearing officer, accommodating a proposal from Rokita.

He noted that the political role assumed by many state attorneys general in contemporary America creates tension with licensing obligations that they assume as members of their state’s bar.

“When a licensed attorney, entrusted with the full legal power of a state, advocates (or legally implements) divisive policies advocated by national partisans, their statements and actions can, in some circumstances, be both politically popular within their state and violative of its rules of professional conduct for attorneys,” Goff said.

“And because the legal power of a state attorney general is so great, such popular but unprofessional conduct can hurt real people and impede official processes. When that happens, people harmed by such conduct will look to the attorney-discipline process for relief,” he continued.

Indiana taxpayers have covered more than $491,000 in legal bills defending Rokita in multiple disciplinary investigations and formal ethics cases, according to records obtained by the Indiana Capital Chronicle.

Case’s background

In a 2022 interview with Fox News commentator Jesse Watters, Rokita called Indianapolis doctor Caitlin Bernard an “activist acting as a doctor” and said his office would be investigating her conduct. Bernard, an OB-GYN, oversaw a medication abortion for a 10-year-old rape victim from Ohio in 2022.

That November, in a split decision and public reprimand, the high court justices found that he had violated two of the Rules of Professional Conduct for lawyers:

1. They said Rokita’s comments constituted an “extrajudicial statement” that he knew — or reasonably should have known — would be publicly disseminated and would prejudice related legal proceedings.
2. They also said his statements had “no substantial purpose” other than to embarrass or burden Bernard.

Rokita and Indiana’s Discplinary Commission disputed over a third charge — engaging in conduct “that is prejudicial to the administration of justice” — which the commission agreed to dismiss in exchange for “admission to misconduct” on the others.

Indiana Attorney General Todd Rokita speaks to the media on Friday, March 21, at his office in Indianapolis. Photo by Niki Kelly, Indiana Capital Chronicle.

In a sworn affidavit, Rokita admitted to the two violations and acknowledged he couldn’t have defended himself successfully on the charges if the matter were tried.

But the same day the reprimand was handed down, Rokita called the dispute a “failed attempt to derail our work” in a lengthy and unrepentant news release. He said he had “evidence and explanation” for what he said on air, but chose not to fight the complaint any further to save “taxpayer money and distraction.”

The Disciplinary Commission filed a new round of charges against him in January, alleging he wasn’t being truthful when he told the court he was accepting responsibility for his actions.

Rokita attempted to dismiss the new complaint in February, which the Disciplinary Commission opposing his motion.

“We reach no judgment at this stage about those allegations or defenses because it is premature to evaluate them through a motion to dismiss where the parties are arguing over competing inferences that may depend on evidence outside the current record,” Molter wrote in the court’s opinion.

Process continues

The case will now move before a three-judge hearing panel. Members were picked from the northern, central, and southern regions of Indiana to “protect against a public perception that political considerations could unduly influence a single officer,” according to the opinion.

They include Indiana Court of Appeals Judges Cale J. Bradford and Nancy H. Vaidik, and attorney William G. Hussman.

Bradford and Vaidik are currently serve on the Indiana Court of Appeals, and both have been elected by their colleagues to serve as their court’s Chief Judge in the past.

Hussmann is a practicing attorney whose public and private sector experience Indiana Supreme Court includes serving as a U.S. Magistrate Judge, as a deputy attorney general, and as a staff attorney with the Indiana Disciplinary Commission.

The court also encouraged the hearing panel to discuss mediation with Rokita and the commission.

“While we are only at the pleadings stage, the parties’ discussion of the claims through their early filings is already voluminous,” Molter wrote. “And up to this point, their submissions, though extensive, reveal very little factual disagreement. That disagreement is vehement, but it also seems narrow, so there may not be much to litigate through a hearing.”

The panel will submit a report, and the court will review the evidence and evaluate the law. Molter noted the court doesn’t defer to the report but does give it more emphasis because of the direct observation of witnesses included.

Possible sanctions include a private or public reprimand; suspension from practice for a set period of time; suspension from practice with reinstatement only after the lawyer proves fitness; and permanent disbarment.

Senior Reporter Casey Smith contributed.