Indiana Judge Orders State to Pay $538,000 in Attorney Fees for Stonewalling Release of Lethal-Injection Records

Citing ​“egre­gious” mis­con­duct by state prison offi­cials in try­ing to evade a court order to pro­duce pub­lic records con­cern­ing its efforts to obtain lethal-injec­tion drugs, an Indiana judge has direct­ed the state’s Department of Correction to pay more than a half mil­lion dol­lars in plain­tiffs’ attor­ney fees. On June 12, 2019, Marion County Circuit Judge Sheryl Lynch (pic­tured) award­ed $538,000 in attor­ney fees to plain­tiffs who were seek­ing pub­lic release of records regard­ing the drugs Indiana intend­ed to use in future exe­cu­tions. The suit began as a pub­lic-records request in 2014, but because of the Indiana Department of Correction’s repeat­ed refusal to release the records or com­ply with court orders, it expand­ed to include late-night secre­cy leg­is­la­tion and mul­ti­ple court rulings. 

In 2015, Washington-based lawyer A. Katherine Toomey filed suit in Indiana state court after the Indiana Department of Correction refused to pro­duce exe­cu­tion-relat­ed records she had request­ed under the state pub­lic records law. On October 24, 2016, she won a sum­ma­ry judg­ment requir­ing the Department to release the records. In 2017, while the Department’s appeal of that deci­sion was pend­ing, the Indiana leg­is­la­ture adopt­ed a retroac­tive secre­cy statute to block the rul­ing from tak­ing effect. At 2:00 a.m. on the final day of the 2017 leg­isla­tive ses­sion, the leg­is­la­ture insert­ed a two-page secre­cy pro­vi­sion into the state 175-page bud­get bill. 

Judge Lynch struck down the secre­cy law in 2018, find­ing that the law had been designed specif­i­cal­ly to alter the out­come of the court pro­ceed­ings. ​“The General Assembly does not have the author­i­ty to deter­mine the out­come of pend­ing lit­i­ga­tion,” she wrote. ​“As applied to this case, the General Assembly’s pas­sage of the Statute over­stepped its author­i­ty and vio­lat­ed the Indiana Constitution’s Separation of Powers by dis­turb­ing a pend­ing case and upset­ting this Court’s judg­ment.” Judge Lynch specif­i­cal­ly sin­gled out the law’s uncon­sti­tu­tion­al retroac­tiv­i­ty pro­vi­sions, writ­ing, “[t]he Statute’s retroac­tiv­i­ty clause vio­lates the pro­hi­bi­tion against spe­cial laws because it imper­mis­si­bly applies to only one law­suit by a sin­gle indi­vid­ual. According to the Department’s own records, Toomey is the only per­son who, at the time the Statute was con­ceived and ulti­mate­ly enact­ed, had ever request­ed access to pub­lic records regard­ing the State’s lethal-injec­tion drugs.”

The court fault­ed state offi­cials for the unnec­es­sary lit­i­ga­tion that led to the fee award. ​“If the Department had not gone to the General Assembly with­out knowl­edge to Toomey or the Court to get a retroac­tive statute to essen­tial­ly vacate this Court’s Order for Summary Judgment … and file an improp­er appeal to the Indiana Court of Appeals and the Indiana Supreme Court to pro­long the Attorney Fee hear­ing, then Toomey would not have need­ed to file its plead­ing to force the pub­lic dis­clo­sure of e‑mails and leg­isla­tive mate­ri­als,” Lynch wrote. She called the Department’s suc­cess­ful attempt to ​“obtain a retroac­tive statute [to vacate the sum­ma­ry judg­ment order] with­out advis­ing the Court and Toomey” in advance, and its abuse of the appel­late process, ​“egre­gious.” Toomey’s request for costs and attor­ney fees were rea­son­able, the court wrote, ​“giv­en the pro­ce­dur­al his­to­ry of [the] request for the lethal injec­tion infor­ma­tion.” “[A] sim­ple [pub­lic records] request turned into major lit­i­ga­tion giv­en the Department’s han­dling of this case,” she said.