CHICAGO (CN) — A Seventh Circuit panel heard debate Thursday over whether the state of Indiana can be held liable for the alleged sexual misconduct of its former attorney general.
The allegations against the Republican former attorney general date back to a March 2018 holiday event known as the Sine Die party, where four women claim that Hill made sexual comments and inappropriately touched them.
While Hill was never charged criminally for his alleged actions, a report was compiled by Indiana’s disciplinary commission, which the Indiana Supreme Court found credible when it issued a 30-day suspension of Hill’s law license.
“Respondent's conduct, both during and after the Sine Die party, has caused injury to the four women. Respondent's conduct was offensive, invasive, damaging, and embarrassing to the four women,” the report states. “Further, respondent's conduct, both during and after the Sine Die party, has had an adverse impact on the public's perception of our state's executive branch and on the profession.”
Following the suspension, Hill lost his primary race for reelection after being defeated by current Indiana Attorney General Todd Rokita.
The sexual misconduct allegations came from Mara Reardon, a then-Democratic lawmaker in the Indiana House of Representatives, along with Niki DaSilva, Samantha Lozano and Gabrielle McLemore Brock, who were legislative staffers at the time of the incident.
The women brought multiple lawsuits over both Hill’s alleged actions at the party and the workplace retaliation the women claim to have experienced after they came forward with their allegations.
A federal lawsuit filed by the women, which Hill and Reardon are no longer a party to, has now made its way to the Seventh Circuit after the plaintiffs appealed a district court decision that found it lacked jurisdiction over the case.
On Thursday, a three-judge panel of the Chicago-based appeals court grappled with two separate and important procedural questions in the case.
Attorney Hannah Kaufman Joseph argued on behalf the women that the lower court erred when it found that a nine-day delay in filing meant the court was unable to hear the case.
The plaintiffs say that even if the lower court did properly find that the 30-day window was enforceable, the Covid-19 pandemic more than justifies any delay.
“Well look, you have 30 days to appeal a district court’s decision. If you take 39 it will be dismissed for want of jurisdiction,” said U.S. Circuit Judge Frank Easterbrook. “Deadlines are deadlines, we don’t have a principle of close enough for government work.”
Easterbrook, a Ronald Reagan appointee, continued to probe whether the 30-day time window in this specific case has anything to do with actual jurisdiction.
“Certainly other circuits don’t believe that there is an ability to impose this 30-day requirement or any deadline as a jurisdictional prerequisite,” Kaufman Joseph responded.
The lawsuit alleges that the women were subjected to workplace retaliation after they came forward with their allegations, and a central issue in the appeal is who was considered the legislative staffers' employer.
Kaufman Joseph argued before the panel that the state of Indiana, and not the Indiana House of Representatives or Senate, was their employer.
“The question is whether the state of Indiana is an employer as a matter of law,” she said.
She went on to say that the state House and Senate are not state agencies, and that in other Seventh Circuit cases states have been found to have been the employer of a plaintiff.
“The upshot here is that the district court’s ruling is going to result in the state being able to pick and choose when it wants to be the employer, and when it doesn’t,” Kaufman Joseph said. “That’s a huge problem.”
Arguing on behalf of the state was Deputy Attorney General Aaron Craft. He said Indiana law clearly spells out that the bodies of the state’s Legislature can be considered employers and can be sued individually, and that the facts of the case support such as conclusion as well.
“The allegations establish that each of the plaintiffs hold an employment role in either the House or Senate. When they complained about the initial incident, and then about the retaliation that followed, they complained to House and Senate leadership,” Craft said. “There is really no factual allegation in the complaint that ties their employment to any other entity within the state government. It’s just the House and Senate.”
In her rebuttal, Kaufman Joseph reiterated her position that the House and Senate are not state agencies.
Easterbrook was joined on the panel by U.S. Circuit Judges Joel Flaum and Thomas Kirsch, who were appointed to the court by Reagan and Donald Trump, respectively. The judges did not give a timetable for their ruling.
A related lawsuit against Hill is set to go to trial in state court in September 2022.
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