3rd judge presides over qui tam complaint against Indiana Treasurer Mitchell as defendants hire attorneys

The whistleblower case against Indiana Treasurer Kelly Mitchell has been unsealed, showing all the defendants, including Indianapolis-based Ice Miller LLP, have hired legal counsel and a third judge is now presiding over the matter after Marion Superior Judge Patrick Dietrick, who handled the case for 11 months, recused himself when the court was notified that his sister-in-law is employed by Ice Miller.

Also, the plaintiff, James Holden, former chief deputy treasurer and general counsel in the Office of the Indiana State Treasurer, is asserting Gov. Eric Holcomb has a duty under state law to investigate the allegations.

“We are calling upon the Governor to take action to protect the taxpayers by joining our call for a criminal investigation, initiating a State Board of Accounts audit, and removing those State employees who were complicit in taking the actions set forth in the Complaint,” Christopher Wolcott, the Indianapolis solo practitioner representing Holden, said in a press release.The Governor’s Office did not respond to inquiries about whether Holcomb is taking steps to conduct a criminal investigation or whether he has had any conversations with Mitchell about the allegations raised in the lawsuit.

Holden filed the qui tam complaint in July 2020. In State of Indiana ex rel. James Holden v. Ice Miller, Old National Bancorp, BMO Harris Bank, et al., 49D14-2007-PL-022005, he alleged Mitchell entered and executed contracts “worth millions of dollars, mostly to (Mitchell’s) campaign donors and supporters” without obtaining the legally-required approvals from the State Budget Agency, the Department of Administration or the Indiana Attorney General.

The 133-page complaint lists 17 defendants including Mitchell, Ice Miller and eight banks. In addition, five individuals identified as deputy treasurers and Cynthia Barger, identified as the director of TrustINdiana, are named as defendants.

Originally, the case was assigned to Marion Superior Judge James Osborn. The court transferred the case to Dietrick in December 2020 following a realignment in Marion Superior Court when two civil divisions were eliminated.

Osborn granted a motion from the Indiana attorney general for the case to remain under seal. Dietrick granted subsequent motions to extend the seal and, in July, permitted only the complaint to be made public. The attorney general told the court more time was needed because the “allegations are extensive” and the complaint “involves potential issues of first impression for Indiana courts.”

In June 2021, both the Indiana attorney general and the Indiana Office of the Inspector General filed notices with the court that they were declining to intervene in the litigation.

Dietrick then granted Holden’s motion to unseal the docket in October 2021. With a separate order, the judge set the deadlines requiring the defendants to respond to the complaint by the later time of either Jan. 10, 2022, or the time allowed under the Indiana rules, and giving the plaintiff until March 1, 2022, to respond any motion to dismiss.

Ice Miller filed a notice of relationship on Nov. 16, 2021, notifying the court that Lesa Dietrick, a principal in the law firm’s public affairs group, is related by marriage to Judge Dietrick.

The judge noted he was not aware that Lesa Dietrick is an “officer, director or trustee of Ice Miller, nor am I aware that she has an interest that could be substantially affected by this proceeding.” However, he recused himself the same day “in an abundance of caution” to avoid the “appearance of impropriety.”

In response to an inquiry from Indiana Lawyer, Ice Miller partner Thomas Mixdorf said the firm was not served with the complaint until Sept. 17, and “we timely brought the issue to the court’s attention thereafter.” He declined further comment.

Marion Superior Judge John Chavis was appointed on Nov. 29 as special judge to preside over the case.

The defendants and their lead attorneys, listed in parentheses, are as follows:

• Ice Miller (Dinsmore & Shohl)
• Old National Bancorp (Quarles & Brady LLP)
• Fifth Third Bank Indiana (Vorys Sater Seymour and Pease LLP)
• Bank of New York Mellon Corp. (Dentons Bingham Greenebaum)
• Wells Fargo Bank N.A. (Katz Korin Cunningham)
• Huntington National Bank (Faegre Drinker Biddle & Reath)
• Public Trust Advisors (Dinsmore & Shohl)
• PNC Bank (MacGill PC)
• BMO Harris Bank (Pilgrim Christakis LLP)
• JPMorgan Chase (Taft Stettinius & Hollister)

The Indianapolis firm of Ammeen Valenzuela Associates is representing Mitchell and Barger along with the individual defendants identified as deputy treasurers: Jillean Battle, Ryan Locke, Michael Frick and Kimberly Logan. Caitlin Larson, identified in the complaint as also being a deputy treasurer, is not listed on the docket as having an attorney.