Filed: 2/20/2025 2:57 PM

IN THE SUPREME COURT

OF THE

STATE OF INDIANA

IN THE MATTER OF )
)
THEODORE E. ROKITA ) CAUSE NO. 25S-DI-29
Attorney No. 18857-49 )
)

RESPONDENT’S MOTION TO DISMISS

Theodore E. Rokita (“Respondent” or “Attorney General Rokita”), by counsel, files this

Motion to Dismiss the Indiana Supreme Court Disciplinary Commission’s Complaint.

INTRODUCTION

As a duly elected public servant for the Hoosier state, Attorney General Rokita regularly

communicates to his constituents. In a November 2023 press release, during his reelection

campaign, he accurately and truthfully discussed resolving a disciplinary matter, corrected false

media narratives around the matter and indicated his plan to continue fighting for Hoosier values

by upholding the laws of the state. The Indiana Supreme Court Disciplinary Commission

responded by petitioning this Court to release a previously signed confidential Conditional

Agreement and Affidavit because of alleged “contradictory public statements.” In the spirit of full

transparency, Attorney General Rokita consented to the release of these documents. The Court

agreed to make the Conditional Agreement and Affidavit publicly available and to include these

documents in the record.

Now, one day shy of a year after this Court released the documents, the Commission has

filed a new Complaint, wrongly alleging that Attorney General Rokita made statements in the press

release that were inconsistent with the Conditional Agreement and Affidavit. But the Complaint

merely confirms that Attorney General Rokita spoke truthfully about the disciplinary resolution in

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the press release. The Commission’s action, moreover, amounts to an impermissible attempt to

restrain an elected official and candidate’s political speech. The Commission even appears to be

policing Attorney General Rokita’s thoughts by purporting to evaluate his “intent” through rough

drafts of the press release that circulated amongst his communications team after he signed the

Conditional Agreement and was being pilloried in the press primarily over Count III, which the

Commission agreed to dismiss before proceeding to file it and terribly confusing the public.

Perhaps most troubling, the Commission is retaliating against Attorney General Rokita for daring

to propose common-sense reforms to the disciplinary process. For example, under the guise of

discovery for this action, the Commission has performed extensive discovery related to Attorney

General Rokita’s proposals, despite the proposals having no apparent relevance to this action.

Attorney General Rokita should be permitted to speak freely to his constituents without the

constant threat of an unelected Commission parsing his every word, ready to pounce with a

disciplinary action when they perceive any imagined inconsistency.

As demonstrated in detail below, the Complaint should be dismissed for multiple reasons. 1

1
This motion is procedurally proper. Although Admission and Discipline Rule 23(14)(a)(3)
provides that, during proceedings before the hearing officer, “[n]o motion to dismiss…shall be
entertained,” Respondent is asking this Court—not a hearing officer—to entertain this motion to
dismiss. As noted in A Procedural Guide for Attorney Discipline Cases (“Procedural Guide”),
prepared by this Court’s Office of Court Services and Office of Supreme Court Services:
[M]otions to dismiss are sometimes filed by the respondent or the Disciplinary
Commission during the pendency of proceedings before the hearing officer. For
example, the Disciplinary Commission might move for dismissal of the disciplinary
complaint upon reconsideration of its initial determination of probable cause, or the
respondent might move to dismiss the disciplinary complaint upon jurisdictional
grounds. Such motions may be considered and resolved by the Supreme Court
directly without intervention of the hearing officer.
Procedural Guide at 14–15 (rev. Mar. 2020) (citing In re Fletcher, 655 N.E.2d 58 (Ind. 1995) (per
curiam) (ruling on respondent’s motion to dismiss for lack of disciplinary jurisdiction)). And in
specific reference to Rule 23(14) the Procedural Guide states that “the hearing officer has no
authority to grant or entertain dispositive motions such as motions to dismiss or for summary
judgment.” Id. at 4 (emphasis added). But unlike a hearing officer, this Court may consider motions
to dismiss.
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First, the Commission is wrong in its assertion that Respondent contradicted the Conditional

Agreement or Affidavit. See Part I. Moreover, the Commission’s action, which asks this Court to

impose discipline on Respondent for his speech, i.e., the press release, violates Respondent’s free-

speech rights under the First Amendment to the U.S. Constitution and Article 1, Section 9 of the

Indiana constitution. See Parts II & IV below. The Commission’s Complaint also constitutes

unlawful retaliation against Respondent for his Rules Proposal. See Part III. The Rules Proposal,

like Respondent’s accurate press release, was a protected exercise of his freedom of speech.

The Complaint also violates Indiana law in two ways. First, it violates constitutional

separation of powers principles. See Part V. Second, the Complaint is subject to dismissal under

the Indiana Anti-SLAPP Statute. See Part VI. For these reasons, this Court should adjudicate the

instant motion, dismiss the Complaint, and halt the Commission’s unconstitutional harassment of

Respondent based on his right to speak.

While this Court may and should dismiss the Commission’s unlawful action, this Court

would be spared from having do so if the Commission would simply do the right thing—withdraw

its Complaint. Given the serious constitutional, statutory and factual problems with its case against

Respondent, the Commission’s action poses a significant risk to its credibility with the bar and the

public. The Commission should therefore reconsider its initial determination of reasonable cause

to proceed against Respondent. See Part VII.

ARGUMENTS

I. Respondent’s Statements Did Not Contradict the Conditional Agreement or

Affidavit.

At its core, the Complaint fails as a matter of law because it alleges that Respondent made

false statements or misrepresentations, but Respondent’s press release in no way contradicted the

Conditional Agreement or Affidavit. See Compl. ¶¶ 54–57 (citing Ind. Prof. Cond. R. 3.3(a)(1),

8.4(c), 8.4(d)). Respondent addresses each alleged “inconsistency” separately.

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 A. Respondent was not found to have violated any laws.

The press release began: “First things first: I deny and was not found to have violated

anyone’s confidentiality or any laws. I was not fined. And I will continue as Indiana’s duly-elected

attorney general.” Compl., Ex. 4 at 1. These are true statements about what the 2023 disciplinary

action did not entail. The Commission claims the statement that Respondent did not violate “any

laws” conflicts with his admission that he violated Indiana Professional Conduct Rules 3.6(a) and

4.4(a). See Compl. ¶ 37. But that is flat-out wrong. The Commission’s 2023 disciplinary complaint

originally accused Respondent of violating a law, Indiana Code § 25-1-7-10(a). Compl., Ex. 1 at

9. That law concerns the confidentiality of certain complaints filed with the Attorney General’s

office. But Respondent disputed that charge, and the Commission dismissed it as part of the

Conditional Agreement. See Compl. ¶¶ 19, 25. Because the charge was dismissed, no finding was

ever made that he violated any state statute, i.e., the law. Thus, Respondent’s statement—“I deny

and was not found to have violated anyone’s confidentiality or any laws”—was true. And his

reference to “anyone’s confidentiality or any laws” was a clear reference to Indiana Code § 25-1-

7-10(a).

Respondent, moreover, made this statement to a general lay audience, not a group of legal

professionals debating whether a disciplinary rule is technically a law. The ordinary person, whom

Respondent was addressing, would not consider the disciplinary rules to be “laws.” Respondent

admitted he violated Rules 3.6(a) and 4.4(a), see Compl. ¶¶ 22–23, but those are rules, not statutory

laws. As an agency of this Court, the Commission’s decision to bring a disciplinary action based

on differing colloquial and legal interpretations of a term in an attempt to fabricate

misrepresentation where none exists is wrong and, frankly, shocking.

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 B. Respondent had “evidence and explanation for everything [he] said” and
“could have fought over those 16 words….”

The press release also stated: “[I]t all boiled down to a truthful 16-word answer I gave over

a year ago during an international media storm caused by an abortionist who put her interests above

her patient’s. … Having evidence and explanation for everything I said, I could have fought over

those 16 words, but ending their campaign now will save a lot of taxpayer money and distraction,

which is also very important to me.” Compl., Ex. 4 at 1–2. The Commission alleges that this

statement conflicts with Respondent’s statement in his Affidavit that “I submit my agreement to

discipline because I know that if this proceeding were prosecuted, I could not successfully defend

myself.” Compl. ¶ 38 (emphasis added); Rokita Aff. (Compl., Ex. 2) (emphasis added). But there

is not the slightest contradiction between the two statements. In saying that he had “evidence and

explanation for everything,” he also said he “could have fought over those 16 words.” Compl.,

Ex. 4 at 2. Respondent did not say he could have successfully defended himself. Indeed, the nature

of the charges against Respondent, the nature of the disciplinary process itself combined with the

extreme breadth of Rule 3.6(a), made it impossible for him to do so.

In paragraph 18 of the Conditional Agreement, “[t]he parties agree[d] that Respondent’s

use of the phrase ‘abortion activist acting as a doctor—with a history of failing to report’ could

reasonably be considered a statement about the doctor’s character, credibility, or reputation in

violation of Rule 3.6(a)[.]” Compl., Ex. 2 (emphasis added). Although that phrase could reasonably

be considered a violation of the rule, it could also reasonably be considered to not be a violation.

Respondent agreed he could not successfully defend himself given the malleable “reasonably be

considered” test. Similarly, in paragraph 21 of the Conditional Agreement, “[t]he parties agree[d]

that a reasonable person could conclude that Respondent’s use of the phrase ‘abortion activist

acting as a doctor – with a history of failing to report’ had ‘no substantial purpose other than to

embarrass or burden’ the doctor in violation of Rule 4.4(a).” Compl., Ex. 2 (emphasis added).

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Again, one reasonable person could conclude that—and another reasonable person could conclude

the opposite. Respondent could not successfully defend himself against a charge about what “a

reasonable person”—even one—“could” conclude. But still, as he said in his press statement, he

“could have fought over those 16 words” in hopes of persuading an overwhelming majority of

“reasonable persons” that he had not unfairly attacked the doctor’s “character, credibility or

reputation.”

Furthermore, Respondent agreed that he violated rules regarding the timing of statements,

not their truthfulness. Rules 3.6(d) and 4.4(a) do not implicate the statements’ truthfulness

whatsoever. Because the crucial distinction between timing and truthfulness was lost on the media

(and, now, on the Commission), Respondent attempted to correct the misconception with his press

release. Respondent’s statements were true, and nothing he signed in the Conditional Agreement

or Affidavit conflicts with this reality.

Nor does any conflict arise from Respondent’s statement in the press release that “ending

their campaign now will save a lot of taxpayer money and distraction[.]” Compl. ¶ 38. This was a

reference to the campaign of “[t]hese liberal activists [who] would like to cancel your vote[.]” Id.

¶ 35(c). Respondent could believe that he could not successfully defend himself and also believe

that “ending their campaign would save a lot of taxpayer money and distraction.” And he did, and

it did. There is no conflict between those two beliefs.

C. To resolve the disciplinary issue when he did, Respondent was required to sign an
affidavit without any modifications.

The last alleged conflict is based on Respondent’s statement in the press release that “In

order to resolve this, I was required to sign an affidavit without any modifications.” Compl., Ex. 4

at 2. This was true; Respondent could not modify the Affidavit. If he had, the Commission had

already made clear it would not have agreed to the resolution.

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 The Commission nevertheless claims (see Compl. ¶¶ 39–40) the statement is contrary to

Respondent’s Affidavit, which said “I consent, knowingly, freely, and voluntarily, to the agreed

discipline that is set forth in [the Conditional Agreement]. I have entered into said agreement

without being subject to any coercion or duress whatsoever[ ].” Rokita Aff. ¶ 1 (Compl., Ex. 2).

But there is no conflict. Respondent’s inability to modify the Affidavit does not mean he failed to

voluntarily consent to the agreed discipline or that he suffered coercion or duress. Or that the

Affidavit was made falsely. It simply means he was not allowed to show in the Affidavit why he

could not be successful. There is no conflict, as the Commission alleges.

Based on these alleged but false contradictions, the Commission asserts that Respondent

“retracted his acceptance of responsibility” and “was not candid” with this Court. Compl. ¶¶ 8–9.

But Respondent made no such retraction; nothing in the press release retracted his agreement to

be disciplined with a public reprimand. Respondent was always candid with this Court. No

statement in the press release shows otherwise.

D. The Commission’s use of prior drafts of the press release to gauge “intent” is
improper.

The Commission’s Complaint improperly relies on unreleased drafts of the press release

and emails between Respondent and his staff discussing the drafts. See Compl. ¶¶ 47–52. These

drafts and emails were unreleased, that is, until the Commission saw fit to release their contents

with its Complaint. 2

The Commission views the drafts as showing “Respondent’s reason for settling” the 2023

disciplinary case. Compl. ¶ 52. But a draft is just that—a draft, not a final or approved product.

Contrary to the Commission’s view, the fact that draft language did not make the final press release

2
The 2023 Conditional Agreement was also confidential until the Commission caused it to be
released, despite the fact that such agreements “generally are not open to public inspection.”
Compl. ¶ 43.
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shows rejection of the discarded text. For example, the draft language that “I do not feel as though

I did anything wrong,” id. (emphasis omitted), was rejected; it did not end up in the press release.

The Commission’s use of unpublished drafts to demonstrate “intent” is telling. Id. at ¶ 47

(the Commission requested the prior drafts “[t]o evaluate Respondent’s intent and meaning

regarding certain statements made in the … press release”). Ironically, the draft content—much of

it written by staff and then changed or rejected by Respondent—conclusively demonstrates what

was not intended, as it did not get published. The press release’s plain language itself does not

contradict the Conditional Agreement or Affidavit.

The Commission’s actions set a dangerous future precedent that an elected official’s—or

any lawyer’s—unpublished drafts or even thoughts can be utilized to justify a feeble allegation of

dishonesty. Unfortunately, this seems to be the path the Commission is taking. As recently as

November 2023, the Disciplinary Commission’s Executive Director stated “that both explicit and

implicit bias negatively impact the judicial process, litigant perceptions, and public confidence,”

and then strikingly mused, “[w]ould and should a judge’s seemingly benign comments and

references…be ethically actionable if those comments reflect implicit bias?” See Adrienne

Meiring, The Impact of Bias 67 Res Gestae: Ind. State Bar Ass’n Member J. 30, 32-33 (2023),

https://tinyurl.com/2ps5uf26. This weaponization of the disciplinary process threatens

fundamental First Amendment political speech protections. See Part II.

E. The Commission misrepresents an Indiana Lawyer quote.

The Complaint includes the following quotation attributed to Respondent: “One thing that

is clear is that the AG did nothing dishonest, illegal, or even wrong, and he will continue to fight

for the people of this state no matter how much the Left hates it.” Compl. ¶ 53 (quoting Alexa

Shrake, Once-Reprimanded Rokita Details His Proposed Changes for Lawyer Discipline, Ind.

Lawyer (Jan. 7, 2025), https://tinyurl.com/4f9vjrkr) (hereinafter, “Indiana Lawyer article”). By

8
including this quotation in the Complaint, the Commission seems to imply that Respondent was

referencing the Conditional Agreement and Affidavit. Id. ¶¶ 53–54 (refencing the Indiana Lawyer

article, supra, and, in the next paragraph, vaguely referring to Respondent’s “continuing course of

conduct”). But the article’s context shows Respondent’s quote was plainly referencing the multiple

recent disciplinary complaints filed by Democratic activists:

Indiana Attorney General Todd Rokita on Tuesday released the details of his
proposed rule changes for attorney discipline, calling on the Indiana Disciplinary
Commission to quickly dismiss politically motivated complaints against attorneys
and follow the same impartiality guidelines as judges.

The proposals escalate ongoing differences Rokita has had with the disciplinary
commission since he was reprimanded by the Indiana Supreme Court for comments
he made in 2022 about a doctor who performed an abortion.

He also became the subject of at least three more disciplinary complaints that
dogged him throughout his re-election campaign last year and that he
considers purely political.

“This judicial process is being hacked by activist attorneys whose candidates

and issues continue to lose at the ballot box,” Rokita said in a statement to the
Indiana Lawyer. “They are attorneys—attorneys who are trying to silence the
large number of voters who hired a lawyer to speak for them and their policies.
These are lawyers who are weaponizing a non-public agency of the judicial
system.[”]

“Whether the investigations of the Attorney General that the Rules allow to be
leaked are going to be continued is unknown, as is a clear understanding of
exactly what it’s all about,” Rokita added. “One thing that is clear is that the AG
did nothing dishonest, illegal, or even wrong, and he will continue to fight for the
people of this state no matter how much the Left hates it.”

Indiana Lawyer article, supra (emphasis added); see also Compl. ¶ 53.

The Commission rips this quote out of context to create a false narrative that Respondent

was dishonest. As the full context shows, Respondent’s quote was responding to the recent wave

of politically motivated disciplinary complaints and the ensuing investigations the Commission

started as a result of those politically motivated grievances filed and intentionally made public

during Respondent’s re-election campaign by self-described liberal activist attorneys. Compl. ¶

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53. This quote was unrelated and irrelevant to the Conditional Agreement and Affidavit. Especially

considering its role in the judicial system, the Commission’s misrepresentation of this quote is

shocking.

II. The Commission Has Violated Respondent’s First Amendment Right to Free Speech.

The Commission’s latest attempt to discipline Respondent based on the exercise of his

freedom of expression is blatantly unconstitutional. The First Amendment does not permit the

Commission, as an agent of the state government, to punish Respondent, an elected public official,

for his protected speech. Respondent had a right to issue the press release about the Conditional

Agreement, and Hoosiers had a right to hear what he had to say about the matter. The Attorney

General even has greater speech protections under our Constitutions because he does not speak

(and was not speaking) with one voice. He speaks with millions of voices as a statewide elected

official and these voices are all equally protected under our Constitutions. See Gentry v. Lowndes

County, Miss., 337 F.3d 481, 485-86 (5th Cir. 2003).

A. Respondent has a right as a public official and candidate for office to speak on
matters of public interest.

The First Amendment protects the right of public officials to speak out on matters of public

interest. See Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 478 (2022) (“The First Amendment

surely promises an elected [official] … the right to speak freely on questions of government

policy.”); Phegley v. Ind. Dep’t of Hwys., 564 N.E.2d 291, 295 (Ind. Ct. App. 1990) (“Statements

by public officials on matters of public concern must be accorded First Amendment protection[.]”).

Indeed, “‘[t]he role that elected officials play in our society makes it all the more imperative that

they be allowed freely to express themselves on matters of current public importance.’”

Republican Party of Minn. v. White, 536 U.S. 765, 781–82 (2002) (quoting Wood v. Georgia, 370

U.S. 375, 395 (1962)); see Bond v. Floyd, 385 U.S. 116, 135–36 (1966) (“The manifest function

10
of the First Amendment in a representative government requires that legislators be given the widest

latitude to express their views on issues of policy.”).

When Respondent issued the press release, he was not only a public official but a candidate

for reelection, a fact that increases the magnitude of his speech interest. The U.S. Supreme Court

has declared categorically that “[w]e have never allowed the government to prohibit candidates

from communicating relevant information to voters during an election.” Republican Party of

Minn., 536 U.S. at 782. The reason is “the First Amendment has its fullest and most urgent

application to speech uttered during a campaign for political office.” Eu v. S.F. Cnty. Democratic

Cent. Comm., 489 U.S. 214, 223 (1989) (quotation marks omitted); see Buckley v. Ill. Jud. Inquiry

Bd., 997 F.2d 224, 227 (7th Cir. 1993) (“Candidates for public office should be free to express

their views on all matters of interest to the electorate. … The roots of [this] principle[ ] lie deep in

our constitutional heritage.”).

Respondent does not lose his right to speak as a public official and candidate for office by

being a member of the bar. The U.S. Supreme Court has stated that “our cases recognize that

disciplinary rules governing the legal profession cannot punish activity protected by the First

Amendment, and that First Amendment protection survives even when the attorney violates a

disciplinary rule[.]” Gentile v. State Bar of Nev., 501 U.S. 1030, 1054 (1991) (plurality) (citing

cases); see also id. (restrictions by “professional bodies” on the practice of law must yield “when

those restrictions impinge upon First Amendment freedoms”).

States that find a compelling interest in curtailing an attorney’s free speech consistently

link the speech to a specific practice within the legal system or to a relationship with clients. See,

e.g., In re Wilkins, 777 N.E.2d 714, 717–18 (Ind. 2002) (per curiam) (prevailing state interest in

attorney statements questioning integrity of judge in footnote of petition), modified on other

grounds on reh’g, 782 N.E.2d 985 (Ind. 2003); In re Friedland, 416 N.E.2d 433, 438 (Ind. 1981)

11
(prevailing state interest when attorney engaged in “pattern of litigation directed toward

intimidating and influencing public officials and adverse witnesses”); Justice v. Bd. of Pro. Resp.,

693 S.W.3d 225, 246 (Tenn. 2024) (compelling state interest when attorney harassed and criticized

judge in pleadings); Manookian v. Bd. of Pro. Resp. of Sup. Ct., 685 S.W.3d 744, 785 (Tenn. 2024)

(compelling state interest in in-court statements and out-of-court statements that were directly

linked to representation of client in specific case); In re Abrams, 488 P.3d 1043, 1054 (Colo. 2021)

(compelling state interest in use of slur when communicating with clients about presiding judge).

Not so here. Respondent was speaking to Hoosiers through a press release about matters of public

interest during a campaign for re-election.

The Commission’s attempt to punish Respondent during his reelection campaign based on

statements in his press release is a content-based restriction on his speech. See Finkelstein v.

Bergna, 924 F.2d 1449, 1453 (9th Cir. 1991) (“Disciplinary action discouraging a candidate’s bid

for elective office represent[s] punishment by the state based on the content of a communicative

act protected by the first amendment.” (cleaned up)). As a content-based speech restriction, the

Commission’s action receives strict scrutiny, the most demanding form of review under the First

Amendment. See Love v. Rehfus, 946 N.E.2d 1, 8 (Ind. 2011) (“The government generally may not

impose content-based restrictions on speech unless it satisfies the strictest judicial scrutiny.”).

Courts apply “strict scrutiny [to] the government’s regulation of [an] elected official’s speech to

his constituency, requiring such regulations to be narrowly tailored to address a compelling

government interest.” Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir. 2007). “When a State seeks

to restrict directly the offer of ideas by a candidate to the voters, the First Amendment surely

requires that the restriction be demonstrably supported by not only a legitimate state interest, but

a compelling one, and that the restriction operate without unnecessarily circumscribing protected

expression.” Brown v. Hartlage, 456 U.S. 45, 53–54 (1982). The Commission bears the burden to

12
prove the validity of its speech restriction. See McCutcheon v. Fed. Election Comm’n, 572 U.S.

185, 210 (2014) (“When the Government restricts speech, the Government bears the burden of

proving the constitutionality of its actions.”) (quotation marks omitted); Phila. Newspapers, Inc.

v. Hepps, 475 U.S. 767, 777 (1986) (“In the context of governmental restriction of speech, it has

long been established that the government cannot limit speech protected by the First Amendment

without bearing the burden of showing that its restriction is justified.”) (collecting cases). State

action that punishes the publication of truthful information can rarely survive constitutional

scrutiny. See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979). 3

The First Amendment also condemns the Commission’s action against Respondent because

of its chilling effect. “[I]mposing penalties for speech, belief, and association chills the exercise of

First Amendment freedoms and thereby indirectly produces a result that the government cannot

command directly[.]” Colson v. Grohman, 174 F.3d 498, 509 (5th Cir. 1999).

The Commission’s investigation was highly intrusive. The Commission served a subpoena

demanding that Respondent and his staff “provide copies of all prior drafts of the November 2,

2023 press release that were written, edited, revised, or reviewed by Respondent and to provide

copies of all written or electronic communications sent to or from Respondent about the November

2, 2023 press release or the prior drafts.” Compl. ¶ 47. In compliance, Respondent produced

voluminous documents, including countless internal emails, to the Commission, which publicly

released the contents of several of the emails with its Complaint. And not only did Respondent sit

for an all-day deposition by the Commission, during which he answered question after question

about various drafts of the press release among many other subjects, but the Commission also did

the same to his staff by deposing both his Chief of Staff and Director of Communications for hours.

3
Even false statements—though inapplicable here—are protected by the First Amendment. See
United States v. Alvarez, 567 U.S. 709 (2012).
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Respondent and his staff were also forced to produce voluminous mobile phone records. Even

Respondent’s campaign manager—the person responsible for the strategy of Respondent’s

campaign for election—was subpoenaed.

The Commission’s demand for, questions about, and public disclosure of confidential

emails of the Attorney General’s office flouts the “obvious realization that officials will not

communicate candidly among themselves if each remark is a potential item of discovery and front

page news[.]” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001).

Indiana Admission and Disciplinary Rule 23(10.1)(a) states: “[i]t shall be the duty of every

attorney to cooperate with an investigation by the Disciplinary Commission[.]” Respondent has

done so by producing internal communications to the Commission. But the Commission’s actions

have had and will continue to have a “chilling effect” on the giving and receiving of candid advice

within the Attorney General’s office. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261,

267 (2021).

B. The Commission’s claimed justifications for punishing Respondent’s speech

fail strict scrutiny.

Respondent’s compelling interest in speaking to the public and voters about the public

reprimand dwarfs the Commission’s purported justifications for seeking to discipline him. The

Commission’s action does not come close to surviving strict scrutiny.

The Commission’s theory hinges on the claim that Respondent’s press release contradicts

sworn statements he made in resolving the 2023 disciplinary matter. But the Commission has never

sought to police the speech of the bar in this manner before. And its claim falls to pieces upon

inspection. As argued supra, nothing said in the press release conflicts with any prior statement.

See Part I. And Respondent has a weighty interest in speaking to the public and voters about the

reprimand and Conditional Agreement, an interest that is protected by the First Amendment.

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III. The Commission Has Retaliated Against Respondent Based on His Rules Proposal,
Which Is Also Protected Speech.

But that is not the only First Amendment violation the Commission has committed here.

As the U.S. Supreme Court has held, “the First Amendment prohibits government officials from

retaliating against individuals for engaging in protected speech.” Lozman v. Riviera Beach, 585

U.S. 87, 90 (2018). Indeed, “[t]here can be no doubt that the freedom to express disagreement with

state action, without fear of reprisal based on the expression, is unequivocally among the

protections provided by the First Amendment.” McCurdy v. Montgomery Cnty., 240 F.3d 512, 520

(6th Cir. 2001), abrogated on other grounds by Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006).

And these principles undoubtedly apply when retaliation is meted out against an elected official.

See Bond, 385 U.S. at 136 (“The interest of the public in hearing all sides of a public issue is hardly

advanced by extending more protection to citizen-critics than to legislators.”); Rangra v. Brown,

566 F.3d 515, 524 (5th Cir. 2009) (“[T]he Supreme Court’s decisions demonstrate that the First

Amendment’s protection of elected officials’ speech is robust and no less strenuous than that

afforded to the speech of citizens in general.”) (citing cases), vacated as moot on reh’g en banc,

584 F.3d 206 (5th Cir. 2009).

Here, Respondent’s Rules Proposal was filed with this Court on November 8, 2024, with a

copy delivered to the Commission’s Executive Director, who is also the author of this Complaint.

Attorney General Rokita’s Rules Proposal (Exhibit A at 1). The Rules Proposal was then publicly

released on January 7, 2025, a few weeks before the Commission filed its Complaint against him.

In making the case for changing the rules governing the Commission, the Rules Proposal

necessarily included some sharp criticism of the Commission’s conduct. It stated that “[t]he

Commission’s willingness to entertain blatantly political and partisan grievances threatens the rule

of law and freedom of speech[.]” Id. at 1. It accused the Commission of having “apparently

negligently or intentionally leaked confidential information to the press[.]” Id. at 2. It noted that

15
the Commission, at the same time it was investigating Respondent for speech and legal positions

he took during the election, had “allowed its recent Chairman to publicly endorse” Respondent’s

opponent in the Attorney General’s race and to “host a ‘Meet and Greet’” for her, creating, at the

least, an obvious “appearance of impropriety.” Id. at 3. 4 It cast light on the Commission’s

subsequent chair authoring an article endorsing the removal of President Donald Trump from the

ballot while the Commission was actively investigating Respondent for filing the state’s amicus

brief in the U.S. Supreme Court endorsing President Trump’s position on the very issue. 5 Id. at 3.

Further, the Commission allowed its Executive Director “to publish in her official capacity thinly

veiled disciplinary threats to judges and practitioners who fail to abide by leftist Diversity, Equity

and Inclusion policy[.]” Id.

Respondent’s Rules Proposal cast light on Commission’s decision to consider repetitive

and overtly political grievances filed by self-proclaimed liberal activist attorneys who have no

personal knowledge of the alleged offending conduct. Id. at 3-4. Then, the Commission—acting

in lock step with the activists—reports their “confidential” investigation to the activists, who

disseminate the information to the press. Id. This cycle continues to repeat itself, to the detriment

of the attorney grieved against and the entire disciplinary system.

Less than a month after the Attorney General’s office publicly released this Rules Proposal,

the Commission filed this Complaint accusing Respondent of professional misconduct. The

Complaint is an act of retaliation against Respondent for the Rules Proposal, which constitutes

expression protected by the First Amendment. At minimum, it has the appearance of such an

impropriety, just like the behavior of the Commission’s members and staff, described supra. And

4
The criticism must have stung. This Commissioner recused himself from the decision to file
the Complaint against Respondent. Of course, the fact that he recused himself from the final
decision to file does not mean he had no role in the investigation leading up to the Complaint.
5
All nine justices rejected the chairman’s position.
16
as every lawyer and judge knows, the appearance of impropriety is just as harmful as retaliation

itself. Telltale evidence of the Complaint’s retaliatory nature is the fact that it was filed hard on the

heels of the publication of the Rules Proposal, which had sharply criticized the Commission’s

practices and treatment of Respondent. See Lavite v. Dunstan, 932 F.3d 1020, 1031 (7th Cir. 2019)

(circumstantial evidence for First Amendment retaliation claim “may include suspicious timing”)

(quotation marks omitted). That the Complaint cites an article about the Rules Proposal is further

evidence. See Compl. ¶ 53 (citing Indiana Lawyer article, supra). What’s more, in Respondent’s

deposition, Commission staff questioned him about the proposals, despite it bearing no real

relevance to this Complaint. See Affidavit (Exhibit B). Because the First Amendment prohibits

retaliation against speech, the Complaint should be dismissed.

IV. The Commission’s Action Violates Article 1, Section 9 of the Indiana Constitution.

The Complaint violates Indiana’s Constitution as well as the U.S. Constitution. Article 1,

Section 9 of the Indiana Constitution—“[o]ur free expression clause,” State v. Katz, 179 N.E.3d

431, 442 (Ind. 2022)—bars state action “restraining the free interchange of thought and opinion,

or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse

of that right, every person shall be responsible.” Ind. Const. art. 1, § 9. The Commission’s action

violates not only the First Amendment but Section 9 as well. 6

Indiana courts apply a two-prong test under Section 9. “First, a reviewing court must

determine whether state action has restricted a [person]’s expressive activity. Second, if it has, the

court must decide whether the restricted activity constituted an ‘abuse’ of the right to speak.”

Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996).

6
This Court has reminded litigants and lawyers making arguments under the U.S. Constitution
not to forego remedies they may have under the Indiana Constitution as well, noting that “a
basketball player would never just take one of two free throws[.]” Katz, 179 N.E.3d at 442.
17
 The first prong is met “when the state imposes a direct and significant burden on a person’s

opportunity to speak his or her mind, in whatever manner the speaker deems most appropriate.”

Id. at 1368. The Commission’s action against Respondent, which seeks to have this Court

discipline Respondent based on his press release, clearly satisfies this test. Cf. Katz, 179 N.E.3d at

447 (“[T]he State’s prosecution of Katz more than satisfies this standard of imposing a direct and

significant burden on his opportunity to express himself.”).

As to the second prong, Respondent’s expression was not an “abuse” of the right to speak

within the meaning of Section 9 because his speech was political expression. “Political expression

is the one type of expression” that this Court has “enshrine[d] as a core constitutional value under

Section 9.” Katz, 179 N.E.3d at 448. This Court has “held that pure political expression cannot be

said to constitute an ‘abuse’ … unless it ‘inflicts upon determinable parties harm of a gravity

analogous to that required under tort law.’” Whittington, 669 N.E.2d at 1369–70 (quoting Price v.

State, 622 N.E.2d 954, 964 (Ind. 1993)) (footnote omitted).

Respondent’s press release was political expression. “Expressive activity is political, for

the purposes of the responsibility clause, if its point is to comment on government action.” Katz,

179 N.E.3d at 448 (quoting Whittington, 669 N.E.2d at 1370). That exactly describes Respondent’s

press release, the whole point of which was to comment on the disciplinary action. And the press

release cannot be said to have “inflict[ed] upon determinant parties harm analogous to that which

would sustain tort liability against the speaker.’” Price, 622 N.E.2d at 964. See id. (“When the

expressions of one person cause harm to another in a way consistent with common law tort, an

abuse under § 9 has occurred.”). Respondent’s speech was not a tort of any kind. Cf. Ellis v. State,

194 N.E.3d 1205, 1218 (Ind. Ct. App. 2022) (concluding that defendant’s speech was not protected

under Section 9 because it met the elements of the tort of intentional infliction of emotional distress

under Indiana law).

18
 The Commission’s Complaint, which seeks to have discipline imposed on Respondent for

a protected (and non-abusive) act of political expression, violates the free expression clause of

Article 1, Section 9. Accordingly, for that reason, too, the Complaint should be dismissed.

V. The Commission’s Complaint Violates Separation of Powers Principles.

Separation of powers principles provide another powerful reason for dismissal. The Indiana

constitution divides governmental powers among the legislative, executive, and judicial

departments. See Ind. Const. art. 3, § 1. The Indiana Attorney General is an executive branch

office, and the Disciplinary Commission is an arm of the judicial branch. Here, the judicial branch

attempts to usurp authority from the executive branch by curtailing what the executive branch can

say to the people. Separation of powers principles preclude this action.

“The separation of powers doctrine prevents the courts from reviewing political, social,

and economic actions within the exclusive province of coordinate branches of government.” Berry

v. Crawford, 990 N.E.2d 410, 415 (Ind. 2013) (citing Peavler v. Bd. of Comm’rs of Monroe Cnty.,

528 N.E.2d 40, 44 (Ind. 1988)). “The purpose of this doctrine is to rid each separate department

of government from any influence or control by the other department.” Id. at 415 (quotation marks

and citation omitted).

These considerations played an important role in a similar case decided last year by the

Texas Supreme Court, which was likewise forced to grapple with the judicial branch’s disciplinary

commission encroaching on the executive branch’s Attorney General. See Webster v. Comm’n for

Law. Discipline, -- S.W.3d --, 2024 WL 5250614 (Tex. Dec. 31, 2024). Texas’ constitution

enshrines separation of powers among the executive, legislative, and judicial branches. Id. at *12.

The Texas Supreme Court analyzed the “judiciary’s authority to regulate the practice of law and

the attorney general’s exclusive authority to determine the arguments and assess the evidence that

warrant bringing suit on behalf of the State,” id. at *6, and held that separation of powers principles

19
preclude the commission from exercising power over the attorney general’s decision-making

authority for arguments to make in a suit on the state’s behalf. See id. at *12 (“We do not find the

call to be close. … [T]he commission claims authority for the judicial branch that the judiciary

lacks: a free-ranging power to second-guess the attorney general’s and his first assistant’s exercise

of discretion in making initial filings that is wholly divorced from and collateral to the litigation

in which those filings are made.”).

Respondent’s press release constitutes an official duty of the Attorney General, a member

of the executive branch. As Indiana’s elected Attorney General, Respondent must inform Hoosiers

about pertinent happenings related to his office. Respondent did so here by informing Hoosiers

that a disciplinary matter involving his office had been resolved. See Compl., Ex. 4. The unelected

Commission’s attempt control or influence the Attorney General’s statements on these matters of

public concern violates the separation of powers principles set forth in the Indiana constitution.

The Commission’s Complaint should be dismissed based on this fundamental and simple

constitutional principle alone.

VI. The Commission Complaint Targets Respondent’s Speech in Violation of Indiana’s

Anti-SLAPP Statute.

The Commission’s action also violates another Indiana law—the Anti-SLAPP Statute,

Indiana Code §§ 34-7-7-1 to -10. Enacted in 1998, this law shields individuals from “being sued

for simply speaking out politically.” Gresk v. Demetris, 96 N.E.3d 564, 568 (Ind. 2018). Speech

on matters of public interest “is fundamental to self-government, and thus protected by the Indiana

and United States Constitutions.” Id. at 566. Thus, when Hoosiers “are faced with meritless

retaliatory lawsuits designed to chill their constitutional rights of petition or free speech, also

known as Strategic Lawsuits Against Public Participation (SLAPP), Indiana’s anti-SLAPP statute

provides a defense.” Id. Because the Disciplinary Complaint filed by the Commission against

Respondent is such a lawsuit, it violates the Anti-SLAPP Statute and is due to be dismissed.

20
 Indiana’s Anti-SLAPP Statute creates “a defense in a civil action against a person” 7 if the

act “complained of” was (1) “in furtherance of the person’s right of petition or free speech” under

the federal or Indiana Constitutions and (2) the act was “taken in good faith and with a reasonable

basis in law and fact.” Ind. Code § 34-7-7-5. The person’s speech must have been “in connection

with a public issue or an issue of public interest.” Ind. Code § 34-7-7-2. The statute authorizes the

filing of a motion to dismiss, which the court shall treat as a motion for summary judgment and

resolve within 180 days. See Ind. Code § 34-7-7-9(a). “The motion to dismiss shall be granted if

the court finds that the person filing the motion has proven, by a preponderance of the evidence,

that the act upon which the claim is based is a lawful act in furtherance of the person’s right of

petition or free speech[.]” Id. § 34-7-7-9(d). 8

The Commission’s Complaint against Respondent should be dismissed; every requirement

of the statute is met here. First, “the public issue or issue of public interest” that prompted

Respondent’s speech was the Disciplinary Action. Id. § 34-7-7-9(b). Second, the act complained

of in the Complaint is Respondent’s press release—an obvious act in furtherance of Respondent’s

right of free speech under the U.S. Constitution and the Indiana Constitution. See Ind. Code §§ 34-

7-7-1(a), -2, -5(1). Third, the press release was “in connection with a public issue or an issue of

public interest.” Ind. Code § 34-7-7-2. Fourth, Respondent’s act was “taken in good faith and with

a reasonable basis in law and fact.” Ind. Code § 34-7-7-5(2). As shown in the affidavit submitted

with this motion, Respondent reasonably believed in good faith that every word of the press release

was true. See Exhibit B.

7
Any “individual” may raise an anti-SLAPP defense. See Ind. Code § 34-7-7-4(1) (defining
“person” to include an “individual”). The fact that Respondent is an attorney and holds public
office does not deprive him of this right.
8
The statute defines a “claim” as, inter alia, a “lawsuit,” “cause of action,” “complaint” or “any
other judicial pleading or filing” that “requests legal or equitable relief.” Ind. Code § 34-7-7-3.
The Complaint is a “claim” for purposes of the statute.
21
 In these circumstances, the Commission’s complaint must be dismissed. See Kay v. The

Irish Rover, Inc., -- N.E.3d --, 2025 WL 338938, at *6, *8, *9 (Ind. Ct. App. Jan. 30, 2025)

(affirming dismissal of defamation suit against newspaper under the Anti-SLAPP Statute where

the newspaper’s “articles were written in good faith,” it “had a reasonable basis in fact to publish

the [allegedly defamatory] statements in the two articles,” and its “reporters believed that the

statements in their articles were true”).

The Commission cannot claim to be exempt from the Anti-SLAPP Statute. The

Commission’s Complaint commenced a civil action that constitutes a “claim” within the statute’s

scope. See Ind. Code § 34-7-7-3. And the statute expressly exempts only some enforcement

actions—it “does not apply to an enforcement action brought in the name of the state of Indiana

by the attorney general, a prosecuting attorney, or another attorney acting as a public prosecutor,”

Ind. Code § 34-7-7-1(b)—the Commission’s Complaint does not qualify as such an action.

A party moving to dismiss under the Anti-SLAPP Statute is authorized to seek “discovery

relevant to the motion” pursuant to an “expedite[d]” process. Ind. Code §§ 34-7-7-6, -9(a); 9 see

Gresk, 96 N.E.3d at 568 (“Anti-SLAPP statutes establish key procedural tools to safeguard First

Amendment rights.”). Here, Respondent plans to seek relevant discovery from the Commission.

Respondent is entitled to discover, among other things, whether the Disciplinary Complaint was

“filed for an ulterior political end[.]” Gresk, 96 N.E.3d at 568. If the Commission filed the

Complaint in retaliation for Respondent’s rules proposal, then the Complaint was not brought for

a “legitimate legal” end but is instead “a SLAPP.” Id.; see Duran v. City of Douglas, 904 F.2d

1372, 1378 (9th Cir. 1990) (“[W]ell established is the principle that government officials…may

9
The Commission, its members, and staff are hereby put on notice of their duty to preserve all
documents and communications in their possession, custody, or control (including on any personal
email accounts) referring or relating to the press release, the Rules Proposal, or the pending
disciplinary action against Respondent.

22
not exercise their authority for personal motives, particularly in response to real or perceived

slights to their dignity.”); accord McCurdy, 240 F.3d at 520; Bloch v. Ribar, 156 F.3d 673, 682 (6th

Cir. 1998).

Accordingly, pursuant to the Anti-SLAPP Statute, Respondent requests that this Court issue

an order to “[e]stablish a reasonable time period, not to exceed one hundred eighty (180) days, to

expedite and rule on [his] motion”; and to “[s]pecify time limits for the discovery of evidence to

respond to material issues raised in the motion.” Ind. Code § 34-7-7-9(a). 10

VII. The Commission Should Reconsider its “Reasonable Cause” Determination and
Withdraw the Charges in the Complaint.

For all these reasons, this Court should dismiss the Commission’s Complaint against

Respondent. But it shouldn’t come to that. Given the compelling reasons for dismissal, the

Commission should not force this Court to clean up the Commission’s mess and incur the risk of

having the Commission’s authority limited in all future cases. The Commission should withdraw

the Complaint to help preserve the integrity of the attorney discipline system as a public hearing

will only serve to further highlight all the above issues—including the repeated appearances of

impropriety by Commission members and staff. The Commission should instead reconsider its

determination that there is probable cause to proceed against Respondent.

That result is compelled by Rule 23, which provides: “If after its consideration, the

Disciplinary Commission determines there is a reasonable cause to believe the respondent has

committed misconduct which would warrant disciplinary action, it shall file with the Supreme

Court Clerk a Disciplinary Complaint as provided in Section 12.” Admis. Disc. R. 23(11)(c). The

Commission may reconsider its determination. See Procedural Guide at 15 (advising that the

10
The Court need not do these things or decide Respondent’s anti-SLAPP motion if it dismisses
the Complaint based on his First Amendment or Section 9 arguments. See Ind. Code § 34-7-7-10
(“The remedy provided by this chapter is in addition to any other remedies provided by law.”).
23
Commission may also “move for dismissal of the disciplinary complaint upon reconsideration of

its initial determination of probable cause” and that “[s]uch motions may be considered and

resolved by the Supreme Court directly without intervention of the hearing officer”). And it may

withdraw charges against a respondent. See In re Thomas, 30 N.E.3d 704, 705 (Ind. 2015) (per

curiam) (noting that “The Commission withdrew certain charges at the outset of the hearing,

including Count 7 in its entirety.”); In re Hear, 755 N.E.2d 579, 582 n.1 (Ind. 2001) (“The

Commission has withdrawn charges that the respondent violated Prof. Cond. R. 8.1(a) and

8.4(c)”); cf. In re Rokita, 219 N.E.3d 733, 734 (Ind. 2023) (per curiam) (noting that the

Commission dismissed a charged violation in exchange for Respondent’s admission to two

others). 11

In light of Respondent’s defenses under the First Amendment, the Indiana Constitution,

and the Anti-SLAPP Act, the Commission should withdraw the charges against Respondent—both

because those charges cannot be squared with the right of free speech and because—especially

given the Commission’s implausible claims of a conflict between the Attorney General’s press

release and the Agreement—insisting that this Court resolve this case will recklessly jeopardize

the Commission’s credibility.

CONCLUSION

For the foregoing reasons, Respondent’s motion to dismiss should be granted, and the

Complaint should be dismissed if it is not withdrawn by the Commission.

11
Rule 23 permits the Executive Director to “amend” a Complaint. See Admis. Disc.
R. 23(12)(d) (“The Executive Director may amend a Disciplinary Complaint or a charge without
the Disciplinary Commission’s approval, if further investigation reveals that the facts do not
support continued prosecution of a particular charge. The Executive Director may not, however,
add additional charges to a Disciplinary Complaint.”). Thus, the Executive Director may, on her
own initiative or at the Commission’s direction, withdraw charges against a respondent. See Clark
v. Witco Corp., 102 F. Supp. 2d 292, 297 (W.D. Pa. 2000) (“the word ‘amend’ is defined as ‘to
alter formally by modification, deletion or addition’”) (quoting Webster’s Ninth New College
Dictionary 78 (9th ed. 1990) (emphasis added)).
24
Dated: February 20, 2025 Respectfully submitted,

/s/ Paul O. Mullin

/s/ E. Ryan Shouse
Paul O. Mullin, Atty No. 25896-49
E. Ryan Shouse, Atty No. 35597-49
Lewis And Wilkins LLP
8777 Purdue Road, Suite 104
Indianapolis, IN 46268-3104
Phone: (317) 636-7460
Fax: (317) 636-7505
mullin@lewisandwilkins.com
shouse@lewisandwilkins.com

James Ammeen, Attorney No. 18519-49

Ammeen & Associates LLC
Barrister Building, Suite 550
155 E. Market St.
Indianapolis, IN 46204
Phone: (317) 423-7505
Fax: (800) 613-4707

Gene C. Schaerr*
H. Christopher Bartolomucci*
Schaerr | Jaffe LLP
1717 K Street NW, Suite 900
Washington, DC 20006
Phone: (202) 787-1060
gschaerr@schaerr-jaffe.com
cbartolomucci@schaerr-jaffe.com

*Pro hac vice motion forthcoming

25
 CERTIFICATE OF SERVICE

I hereby certify that on February 20, 2025, I served the foregoing to all parties of record by

electronically filing through the Indiana Court’s e-filing system.

/s/ Paul O. Mullin

/s/ E. Ryan Shouse
Paul O. Mullin, Atty No. 25896-49
E. Ryan Shouse, Atty No. 35597-49
Lewis And Wilkins LLP
8777 Purdue Road, Suite 104
Indianapolis, IN 46268-3104
Phone: (317) 636-7460
Fax: (317) 636-7505
mullin@lewisandwilkins.com
shouse@lewisandwilkins.com

26