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In a legal battle with an Indianapolis abortion doctor that was voluntarily dismissed last year, Indiana Attorney General Todd Rokita is asking a trial court to revisit a previous ruling that he “clearly violated” Indiana law by publicly discussing his investigation into Dr. Caitlin Bernard.
The dispute between Rokita and Bernard dates back nearly a year, when Bernard last summer publicly shared that she had performed an abortion for a 10-year-old girl from Ohio. The back-and-forth between the two culminated in Bernard suing Rokita to stop his “sham investigations” into her and her medical partner, Dr. Amy Caldwell.
Before a Marion County judge could issue a ruling, Rokita announced he was filing an administrative action against Bernard’s medical license. The judge subsequently denied Bernard’s motion for a preliminary injunction, ruling the administrative action meant “the Court no longer has jurisdiction to make any factual findings over these ultimate questions, even for the purposes of a preliminary order.”
But the judge also determined Rokita had “clearly violated” Indiana law when he publicly discussed his investigation into Bernard, including on national television.
Bernard then voluntarily dismissed the case, but Rokita moved to strike the notice of voluntary dismissal and to reconsider its finding that he violated state law.
During a hearing Tuesday before Marion Circuit Judge Amber Collins-Gebrehiwet, attorney H. Christopher Bartolomucci of Schaerr|Jaffe in Washington, D.C., argued Rokita is being harmed and prejudiced because if the case is dismissed, he will be unable to challenge the finding that he violated Indiana law.
“We contend that the inclusion of law in the order — which is sometimes referred to as a finding — a conclusion that the attorney general violated that statute, we believe was an error, and on top of that was unnecessary,” Bartolomucci said. “It certainly undermines the public confidence in the attorney general’s commitment to follow the law.”
The attorney pointed to the administrative action against Bernard’s license pending before the Indiana Medical Licensing Board.
“Dr. Bernard, in her answer, has raised as a defense the conclusion reached by this court in the Dec. 2 order that the attorney general had violated statute,” Bartolomucci said Tuesday. “The attorney general is prejudiced by the inability to challenge that conclusion in this case.”
Paul Rodney of Arnold & Porter in Washington, D.C., represented Bernard at the hearing. He argued that when a case is dismissed, it is as though it never existed.
“The case was dismissed as a result of the attorney general’s choice to file an administrative complaint against Dr. Bernard before Medical Licensing Board,” Paul Rodney said. “… There were no future proceedings that made sense for plaintiffs for any specific case following the court’s order.”
Collins-Gebrehiwet said she would only be considering evidence on the motion to strike the notice of voluntary dismissal. However, she said she didn’t think she had jurisdiction over the motion to reconsider because another judge — Heather Welch of the Marion Superior Court — made the finding.
She gave the parties an April 21 deadline to submit a proposed order on the motion to strike and a May 12 deadline to submit briefing on the proper judge to rule on the motion to reconsider.
Editor’s note: This article has been corrected to show that Paul Rodney argued on behalf of Bernard.
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