Pence's legal team argues to keep email secret

Two Indiana Appeals Court judges took issue with key arguments made by the Pence administration Monday, as it tries to keep an email sent to Gov. Mike Pence secret.

The judges challenged the governor's argument that the judiciary branch had no authority in the matter, and that the email — sent to 30 recipients in various states — was protected by attorney-client privilege.

In a case that may determine how the governor's office complies with Indiana public records laws, Pence's legal team argued before appellate Judges Nancy H. Vaidik, John G. Baker and Edward W. Najam Jr. that a political white paper should be kept from the public.

What's Mike Pence hiding in his emails?

The civil case was brought by Democratic labor attorney William Groth, who sued the Pence administration in 2015 after it "substantially redacted" and subsequently denied his request for a document. The email in question related to the efforts of Republican governors to stop President Barack Obama’s 2014 immigration executive order.

The case has drawn national interest in the wake of Pence's aggressive battle on the campaign trail to release the emails Hillary Clinton sent from a private server she maintained while secretary of state.

In court, the vice president-elect's lawyers argued that the work product exemption through attorney-client privilege, as well as the nonjusticiability doctrine — that the court does not have the authority to decide on the matter — should render the white paper private.

"The statute itself cannot get into the governor's personal papers," said Joseph Chappelle, Pence's attorney, from the Indiana law firm Barnes & Thornburg, referring to the legal bounds of the Indiana Access to Public Records Act.

Legally, the burden is on the governor to prove the documents are protected from public purview.

Groth argued that because the political white paper was sent to individuals outside the attorney-client relationship, it is no longer protected by attorney-client privilege.

"People other than attorneys and clients received a copy of the white paper," said Greg Bowes, an attorney for Groth. "They have not established attorney-client privilege."

Chief Judge Vaidik took issue with the fact that individuals outside the attorney-client relationship saw the paper.

"A white paper is being sent, and it's not a legal paper, it's a white paper, which is a government position paper, all right, number one," Vaidik said. "That concerns me."

Regarding the nonjusticiability doctrine, the judges strongly challenged Pence's legal team on how previous case law would apply.

Pence's team cited the Indiana Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep., which determined the legislature's redactions were nonjusticiable under the Indiana Constitution’s separation of powers clause. Groth was also the attorney representing the plaintiffs in that case.

Judge Najam said that decision applied only to the legislature and not the executive branch of state government.

Drawing a distinction between the legislative role of government and the executive branch, Najam asked, "Isn't that the whole purpose of APRA, to see who is soliciting our governor?"

Added Vaidik: "What is the point of APRA then?"

The news of Pence's emails comes after a recent blow to public transparency laws.

Last week, the Indiana Supreme Court ruled that the University of Notre Dame’s campus police department is not a “public agency” under Indiana law.

Coincidentally, Pence vetoed House Enrolled Act 1022, which would have limited private university police departments from disclosing more than a bare minimum of information.

"Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency," Pence said.

Legal experts have expressed concerns about how the ruling in Groth v. Pence would affect transparency in government.

Paul Jefferson, a former professor of state constitutional law at the Indiana University Robert H. McKinney School of Law, said if the court rules in favor of the governor, "that would severely limit the Access to Public Records Act."

In the sole dissent in the Citizens Action Coalition ruling, Indiana Supreme Court Justice Robert Rucker stated: “The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record.”

The judges in Groth v. Pence could issue a ruling as early as this week.

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.