Defendants' Memorandum in Support of Rule 12(B) Motion to Dismiss for Lack of Justiciability, and Alternatively, for Failure to State a Claim

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, ) ) Plaintiffs, ) ) v. ) ) ERIC KOCH and INDIANA HOUSE ) REPUBLICAN CAUCUS, ) ) Defendants. ) FILED @ IJUN 26 2015 ~THe~oNf.:c~~ Defendants' Memorandum in Support of Rule 12(B) Motion to Dismiss for Lack of Justiciability, and Alternatively, for Failure to State a Claim Introduction Plaintiffs bring this lawsuit under Indiana's Access to Public Records Act, Ind. Code 5-14-3-1 et seq. (the II Act"). They seek a judgment from this Court directing a state legislator, Representative Eric Koch, and the Indiana House Republican Caucus to allow the inspection and copying of specified e-mail and other communications. Plaintiffs' claims should be dismissed with prejudice for two independent reasons.

First, Plaintiffs request a judicial decree that would interfere with the internal workings of the legislature. Legislator communications-whether with staff, other legislators, or the public at large-are an integral part of their constitutional authority to enact laws. Such communications implicate one core legislative function of gathering information concerning proposed legislation. Under separation-of-powers principles, courts are not to meddle in the affairs of an equal, coordinate branch of state government. As our Supreme Court directs, such claims are non-justiciable and must be dismissed under Rule 12(B)(1). Second, and alternatively, Plaintiffs' allegations fail to state a claim upon which judicial relief can be granted. 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. In addition, Representative Koch and the Caucus are not subject to the Act because neither is a "public agency". And, finally, the Caucus is not a proper defendant on this record because the requests at issue here were directed solely at Representative Koch. Thus, Plaintiffs' claims also should be dismissed under Rule 12(B)(6). Background Facts and Procedure On January 16, 2015, Plaintiff Energy and Policy Institute ("Institute") sought from Defendant Koch specified correspondence between Koch and his staff and certain outside entities regarding a particular bill he filed-house Bill 1320-including emails, draft records, notes, minutes, scheduling records, text messages, and all other corre- 2

spondence and records. [Complaint, <:II6.] Koch is the elected representative from Indiana House District 6S. [Id., <:II4.] The Caucus consists of all currently serving Republican members of the Indiana House of Representatives. [Id., <:lis.] On February 2, 201S, the Institute requested from Koch the same information between Koch and additional outside entities. [Id., <:II7.] On March 9, 201S, the Institute submitted a broader request to Koch seeking "[a]ny and all emails, correspondence, or other documents that pertain to 'net metering,' 'solar energy,' 'distributed generation,' 'electric fairness,' or 'fixed charges,' and that were created from September I, 2014, to the present," between Koch and various outside entities. [Id., Exhibit F.] All three of the Institute's requests were denied. [Id., Exhibits B, D.l] Indiana's Public Access Counselor issued separate advisory opinions [see id., <:II<:II8, 11; id., Exhibits E and H] addressing, among other things, whether the Act applies to the legislature [id.] and whether the requests to Koch were sufficiently specific and particular [id.]; and concluding, on the merits, that the legislature "has the discretion to define their [sic] own work product" [id., ExhibitH at 3], referring to the Act's legislative-work-product exception to public-records disclosure. See I.C S-14-3-4(b)(14) (exempting from disclosure "[t]he work product of individual members and the partisan staffs of the general assembly."). 1 Plaintiffs did not attach the third denial as an exhibit to their Complaint. 3

On April 15, 2015, all three Plaintiffs-the Institute along with Citizens Action Coalition and Common Cause-filed this lawsuit against Koch and the Caucus for violating the Act by failing to allow them to inspect and/or copy the records the Institute had requested from Koch. Legal Standard Trial Rule 12(B)(1) is a procedural vehicle for asking a court to dismiss claims over which it lacks subject-matter jurisdiction and claims that are non-justiciable. "The distinction between jurisdiction and justiciability is a fine one," our Supreme Court notes, "and has been confused in the past." Berry v. Crawford, 990 N.E.2d 410, 417 (Ind. 2013). Jurisdiction is a court's "power to decide a case or issue a decree." ld. (quoting Black's Law Dictionary 927 (9th ed. 2009». Justiciability is the "quality or state of being appropriate or suitable for adjudication by a court." ld. at 418 (quoting Black's Law Dictionary 943). Indiana courts have repeatedly held that separation-of-powers principles may render a dispute non-justiciable. See Berry, 990 N.E.2d at 418 ("a separate justiciability concern arises when courts are asked to review internal matters of a coordinate branch of government."). See also State ex rel. Masariu v. Marion Super. Court No.1, 621 N.E.2d 1097, 1098 (Ind. 1993) (issuing permanent writ of prohibition in public-records lawsuit because "further litigation... would amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch"). Courts are to intervene II only where doing so would not upset the balance of the separation of 4

powers." Berry, 990 N.E.2d at 418. Dismissal under Rule 12(B)(1) is warranted here because the judicial relief Plaintiffs seek squarely implicates internal workings of the legislative branch-namely, a legislator's communications concerning proposed 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 12(B)(6) should be granted where it appears that "under no set of facts could plaintiffs be granted relief." Morton-Finney v. Gilbert, 646 N.E.2d 1387, 1388 (Ind. Ct. App. 1995). A motion to dismiss tests the legal sufficiency of the claim, not the facts supporting it. Trail v. Boys and Girls Clubs a/northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). On this record, dismissal also is warranted under Rule 12(B)(6) because Plaintiffs have failed to state a legal claim upon which relief can be granted. Argument I. Plaintiffs' claims are non-justiciable and should be dismissed under Trial Rule 12(B)(1) because they implicate separation-of-powers principles. A. Courts may not review actions within the exclusive province of the General Assembly. The Indiana Constitution divides state government into "three separate departments": "the Legislative, the Executive including the Administrative, and the Judicial". Ind. Const. art. 3, l. No official within one department "shall exercise any of the functions of another", unless the Constitution itself expressly provides otherwise. Id.' 5

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 State./I rd. art. 4, 16. Such plenary authority includes the express power to "determine its rules of proceeding", id. art. 4, lo, and to determine what matters are to remain confidential. "The doors of each House, and of Committees of the Whole, shall be kept open, except in such cases, as, in the opinion of either House, may' require secrecy./i rd. art. 4, 13. Mindful of (and obedient to) our Constitution's division of governmental powers, Indiana courts decline to interfere in legislative affairs. A prominent recent example is Berry v. Crawford, 990 N.E.2d 410, the 2013 legislative fines case, in which our Supreme Court admonished that "when, as here, the Indiana Constitution expressly assigns certain functions to the legislative branch without any contrary constitutional qualification or limitation, challenges to the exercise of such legislative powers are nonjusticiable and the doctrine of separation of powers precludes judicial consideration of the claims for relief." rd. at 413. In State ex rel. 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 Supreme Court entered a permanent writ of prohibition and an absolute writ of mandate against the trial court, 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. 6

Const. art. 4, lo, belongs solely the General Assembly. "The Constitution has defined a domain upon which courts may not tread." 95 N.E.2d at 840 (citation omitted). And in Masariu, 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, the Court issued a permanent writ of prohibition against the trial court. "[F]urther litigation of this case in the trial court would amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch[.]" [d. at 1098. B. The legislature's determination to extend the Public Records Act to itself does not make Plaintiffs' legal claims any more justiciable. The General Assembly chose to apply the Act to certain legislative bodies, including itself. See I.C 5-14-3-2(n)(I) (defining "public agency" to include "[a]ny board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the... legislative power of the state."). But this statutory enactment is legally insufficient to overcome the separation-of-powers limitation on the Court's ability to grant Plaintiffs relief under the Act. As our Supreme Court holds, mere statutes cannot trump the judiciary's constitutional obligation under Article 3, Section I-the distribution-of-powers provision-to refrain from interfering in those matters committed by Article 4 to the legislature. For example, the Court in Berry v. Crawford, the legislative-fines case, held it would be con- 7

stitutionally impermissible to apply Indiana's Wage Payment Statute to members of the House 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 constitutional provision limits the legislature's exclusive authority to discipline its members. This purported statutory limitation [the Wage Payment Statute] cannot serve as a means for the courts to consider challenges to legislative action to compel attendance and punish disorderly members where there exists no constitutional limitation on the House's express constitutional power to take such actions. ld. (emphasis added). In Masariu, the Court employed the same rationale in holding that the Public Records Act did not entitle litigants to obtain access to House voting records through the courts. "If the legislature wishes to authorize sanctions against itself upon a claim by press or public alleging improper legislative secrecy, such sanctions would have to be determined and imposed solely by the legislative branch itself, without recourse to the courts." 621 N.E.2d at 1098. And in Reeves, the Court held that Indiana's Election Code was unlawful to the extent it authorized courts to conduct a recount of the votes for state legislative office. "To the extent the statute in question seeks to grant this power [House's exclusive pow- 8

er to judge the election of its own members] to the courts, it is necessarily unconstitutional and void." 95 N.E.2d at 840. The only exception (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 clear, the records sought here implicate the core legislative function of enacting laws. The disputed requests seek communications concerning specific legislation proposed by Representative Koch. Nothing is more fundamental to a legislator's central role than his considering ideas for proposed legislation, weighing their merits and de-merits, hearing from those likely to be affected, and then undertaking to transform worthy concepts into specific legislative text. Each of these steps entails communications with others, sometimes many others, including but not limited to one's colleagues, constituents, and staff. Just as in Berry and similar cases, Plaintiffs' claims seeking access to these communications are "non-justiciable and, as a 9

constitutional and prudential matter, it is improper for the judicial branch to entertain consideration of [their] requests for relief." 990 N.E.2d at 421. C. Judicial intervention would have a chilling effect on the legislative process and the willingness of citizens to communicate with legislators. The House of Representatives has a longstanding practice of treating legislative correspondence as confidential and not subject to public-records disclosure. Not only is this practice not subject to judicial review, for the reasons stated previously, but it derives from the House's wholesome, common-sense belief that communications with legislators are fostered if they are not subject to public disclosure. A contrary practice-and the likely outcome here, if Plaintiffs were to succeed with their lawsuit-would have the effect of stifling the very communications with and between legislator:s that are essential to the legislative process and that are fundamental to citizens exercising their First Amendment right to petition the government for a redress of grievances. Such an outcome also would, ironically, undermine the very interests in open government Plaintiffs seek to promote. If letters, emails, voicemail messages, etc., to legislators were all fair game in a public-records lawsuit, their disclosure would fall disproportionately on constituents who have the least direct access to their elected representatives, 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 legis- 10

lators and their staff through a medium not subject to a public-records request, such as a person-to-person phone call or an in-person meeting. Subjecting legislative communications to judicial scrutiny also would open up additional, troubling separation-of-powers questions. Suppose the press or public were to demand access to the literature-articles, books, reports-a legislator read before voting on various topics: "Representative Smith, provide me with a copy of every document you reviewed that in any way informed your thinking in casting an Aye vote on House Bill XYZ during the most recent legislative session." It is hard to imagine a more intrusive inquiry by courts into the legislative process. Yet if Plaintiffs' claims here were held to be judicially cognizable, there is no principled reason for treating the hypothetical 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 clear 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 representative 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 to be arrested and suspended at times until the Representa- 11

tives could go horne to their several counties and confer with their constituents. 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 laws)). In sum, the short answer to Plaintiffs' lawsuit is that not every legal right, including the right to inspect and copy public records under the Act, includes a corresponding judicial remedy. Plaintiffs' remedy here, therefore, lies not in a court of law but in the court of public opinion-meaning the political process and, ultimately, the ballot box. Plaintiffs' claims seeking relief from this Court under the Act are non-justiciable and should be dismissed under Rule 12(B)(1). II. Alternatively, Plaintiffs' claims should be dismissed under Rule 12(B)(6) because they fail to state a claim upon which judicial relief can be granted. A. Plaintiffs Citizen Action Coalition and Common Cause did not seek public records from any Defendant and therefore lack standing to file suit under the Act. Dismissal for lack of standing under Rule 12(B)( 6) is appropriate where a plaintiff cannot be granted relief under any set of alleged facts. City of New 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. I.C 5-14-3-9(e). A party that was not denied t~e right to inspect a public record has no cause of action under the Act. The Institute filed three requests of Representative Koch seeking to inspect records under the Act. [Complaint, Exhibits A, C, F.] However, neither Citizens Action Coalition nor 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. The Act can be enforced against only a "public agency". As the governing statute makes clear, the proper defendant in a public-records lawsuit is 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 may file an action... to compel the public agency..." Id. 5-14-3-9(e). If a request is denied, the public agency may be sued to permit such inspection or copying. The term "public agency" is defined to include "any board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state." I.C 5-14-3-2(n)(1). Notably, the list of entities that are public agencies under the Act does not include natural persons or "individuals". The one exception is found in Section 2(n)(6), which provides that "public agency" 13

includes a "law enforcement agency". Only in defining what can qualify as a lawenforcement agency does the Act specify that certain natural persons who are lawenforcement 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 of the excise police division" of the Alcohol and Tobacco Commission, "conservation officers" of the DNR, and "gaming agents" and "gaming control officers" of the Indiana Gaming Commission. ld: 5-14-3-2(n)(6). Legislators are not 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 who serve as governmental officers, officials, or employees. This is not an oversight. The Act specifically defines "person"-i.e., the party who seeks public records from a public agency-more broadly than it defines "public agency". The term "person" is defined as "an individual, a corporation, a limited liability company, a partnership, an unincorporated association, or a governmental entity." ld. 5-14-3-2(l). "Person" is used throughout the statute in provisions indicating that a "person" may inspect and copy the public records of any "public agency". ld. 5-14-3-3. If the legislature had intended to authorize public-records requests and publicrecords lawsuits against individuals and unincorporated associations, it would have included them in the definition of "public agency". But it did not. 14

1. Because Representative Eric Koch is not a "public agency", the complaint against him must be dismissed. The Act allows a request for inspection to be filed against only a public agency. Id. 5-14-3-3(a). If a request has been denied, the aggrieved person may file an action against the public agency. Id. 5-14-3-9(e). The Act does not apply if the named defendant is not a "public agency". State Bd. of Accounts 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 act through individuals, the individuals are not public agencies subject to the Act. The legislature knows how to include natural persons within a statutory definition when it wants to. Indeed, it did so in this very Act when defining "person" to include an "individual". I.e. 5-14-3-2(l). The legislature's failure to include natural persons within the general definition of "public agency", see id. 5-14-3-2(n), 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 the claims against it, too, must be dismissed. The term" caucus" is not defined in the Act. A related statute, Indiana's Open Door Law, I.e. 5-14-1.5-1 et seq., defines "caucus" as "a gathering of members of a political 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." ld. 5-14-1.5-2(h). Defendant Caucus refers to Republican members of the House of Representatives. [Complaint, <[5.] The problem for Plaintiffs is that the Caucus is not a separate legal entity capable of suing or being sued, but an informal, "unincorporated association" of House Republican legislators. Cf Assoc. Press v. Senate Republican Caucus, 951 P.2d 65 (Mont. 1997) (finding that party caucus is an "unincorporated association"). As discussed previously concerning natural persons, the legislature knows how to include an "unincorporated association" within a statutory definition when it wants to. It did so specifically when defining "person" in the Act-those entitled to seek public records from a public agency-to include an "unincorporated association". ld. 5-14-3-2(l). The legislature's failure to do so in defining "public agency" means the Caucus is not a "public agency" under the Act. Thus, Plaintiffs' claims against the Caucus should likewise be dismissed. C. No Plaintiff sought public records from the Caucus. Finally, Plaintiffs' claims against the Caucus also fail because no request for public records was directed to it. As explained above, the proper defendant in a publicrecords lawsuit is the entity from which the records were sought. Because the Institute's public-records requests were directed solely to Representative Koch, the Caucus is not a 16

proper defendant here, even if it were a "public agency" (and it is not). Plaintiffs' claims against the Caucus should therefore be dismissed for this reason, too. Conclusion For all of these reasons, the Court should dismiss with prejudice Plaintiffs' claims as non-justiciable under Rule 12(B)(1) because they relate to legislator communications and thus implicate a core legislative function of gathering information concerning proposed legislation. Alternatively, Plaintiffs' claims should be dismissed with prejudice under Rule 12(B)(6) because (i) Plaintiffs Citizens Action Coalition and Common Cause lack standing under the Act; (ii) Defendants, Eric Koch and the Caucus, are not a "public agency"; and (iii) the Caucus is not an entity from which any Plaintiff sought public records here. I. Geoffrey Slaughter 1 332-45) Russell Menyhart (25018-49) TAFT STETTINIUS & HOLLISTER LLP One Indiana Square, Suite 3500 Indianapolis, Indiana 46204-2023 (317) 713-3500 (Phone) (317) 713-3699 (Fax) gslaughter@taftiaw.com rmenyhart@taftlaw.com Counsel of Record for Defendants ERIC KOCH and INDIANA HOUSE REPUBLICAN CAUCUS 17

.. Certificate of Service I certify that on June 26,2015, I caused a true copy of the foregoing to be served via first-class United States Mail, postage prepaid, upon the following counsel of record: William R. Groth, Esq. David T. Vlink, Esq. FILLENW ARTH DENNERLINE GROTH & TOWE, LLP 429 East Vermont Street, Suite 200 Indianapolis, Indiana 46202 11732054 18