Filed: 7/3/2023 10:30 AM

Clerk
LaPorte County, Indiana

State of Indiana
La Porte County Circuit Court

Sean Fagan, in his official capacity as

Prosecuting Attorney for the 32nd Judicial Circuit;
Plaintiff, Civil Case No. 46C01-2306PL-001086
v.

The Board of Commissioners of the County of

La Porte;
Defendant.

Plaintiff’s Opposition to Motion to Intervene

Plaintiff Sean Fagan, in his official capacity as Prosecuting Attorney for the 32nd Judicial

Circuit (“Prosecutor Fagan”), hereby opposes the Motion to Intervene (“Motion to Intervene”

or “Mot. to Intervene”), filed by John Lake (“Lake”) in the above-entitled action on June 13,

2023.

Introduction

This case is about e-mail records of the prosecutor’s office, which are currently in

the possession of The Board of Commissioners of the County of La Porte (the “Commission” or

“Defendant Commission”) but are the lawful possession of the prosecuting attorney for the

32nd Judicial Circuit, Prosecutor Fagan. Accordingly, this case is only about the duty of the

Commission to provide the records to Prosecutor Fagan. It is not about the contents of those

records, the initial creators of those records, nor the time period or reason they were created. In

fact, none of those facts have any bearing on whether the Commission has any authority to

withhold the records (they do not)—the entire basis of the underlying suit.

Accordingly, Prosecutor Fagan respectfully requests this Court deny the Motion to

Opp’n to Mot. to Intervene

Intervene on the grounds that (1) Lake has not and cannot establish a legally cognizable interest

in the action, infra Part I, (2) disposition of the action does not impede protection of any interest,

infra Part II, and (3) representation of any interest by the existing parties is adequate, infra Part

III.

Facts

Prosecutor Fagan took office as Prosecuting Attorney for the 32nd Judicial Circuit on

January 1, 2023. Verified Complaint for Declaratory and Injunctive Relief (“Verified Compl.”),

June 2, 2023, ¶ 9. Prosecutor Fagan’s predecessor, Lake, did not provide Prosecutor Fagan with

access to the office’s e-mail records, including Lake’s own official e-mails and the e-mails of

other former employees of the prosecutor’s office (collectively, “E-mail Records”) during his

transition out of office. Id. at ¶ 10.1 Lake’s failure to deliver the E-mail Records to Prosecutor

Fagan was in direct contravention with Indiana law which requires a public servant to deliver all

records to his successor at the end of his term and states that a public servant who fails to do so

“commits official misconduct, a Level 6 felony.” Id. at ¶¶ 59–60 (IC § 5-15-5.1-15(a) and IC §

35-44.1-1-1(4)).2

Prosecutor Fagan requested access to the E-mail Records to account for any gaps in

1
Lake claims that he complied with Indiana law “to turn over all materials defined as
‘records’ to the successor Prosecuting Attorney[,]” Mot. to Intervene, 3 ¶ 11, without any
evidentiary support, but acknowledges that he did not provide e-mail records (as they were stored
on the county server), id. at ¶ 12. It is, thus, undisputed that Lake did not provide the E-mail
Records to Prosecutor Fagan.
2
While the Indiana Code does exclude personal records (properly defined), IC § 5-15-5.1-
1(m), Lake’s wholesale refusal to provide or facilitate providing any E-mail Records is not so
limited.

Opp’n to Mot. to Intervene 2

information, case histories, communications, and information critical to performing prosecutorial

duties. Id. at ¶ 15. Although the E-mail Records belong to the Prosecuting Attorney’s Office,

they are hosted on the county server. Id. at ¶ 14. Accordingly, Prosecutor Fagan has been forced

to repeatedly seek access to the E-mail Records from Defendant Commission. Id. at ¶¶ 14–15.

Despite Prosecutor Fagan’s clear statutory right to the E-mail Records, the Commission

repeatedly and improperly refused to produce them. Id. at ¶ 16; see also Public Access Counselor

Luke H. Britt Letter, March 14, 2023, Verified Compl., Ex. 2, 2 (“Public Access Counselor

Letter”) (“by operation of law, th[e E-mail records] are now in [Prosecutor Fagan’s] custody as

the current officeholder.”); Id. at 2 (“[I]t is my official recommendation that [Prosecutor Fagan]

have access to those email [sic] from 2022.”); Indiana Prosecuting Attorneys Council Letter,

March 21, 2023, Verified Compl., Ex. 3, 1 (“Prosecuting Attorneys Council Letter”) (a public

agency should have no need to request its own records[,]” and the “emails of [the prosecutor’s]

office’s former employees are not county records.”); Demand Letter, Office of the Attorney

General, March 24, 2023, Verified Compl., Ex. 1, 2 (“Attorney General Demand Letter”) (The

Commission “continue[s] to be in noncompliance with Indiana law while jeopardizing criminal

prosecutions in [the] county and the efficient flow, or continuity, of government.”); Opinion of

the Public Access Counselor, May 31, 2023,3 Ex. 4, 5 (“Public Access Counselor Opinion”)

(“While [the Commission] may exercise stewardship over [the E-mail] Records, it is not the

gatekeeper [and] . . . cannot deny the exercise of a statutory right” by Prosecutor Fagan); Id. at 7

(“it is the opinion of this office that LaPorte County Prosecutor is statutorily entitled to the

3
This exhibit was previously labeled as June 1, 2023, the date Plaintiff received it.
Plaintiff has since discovered that the document was actually dated May 31, 2023. All future
references will contain the corrected date.

Opp’n to Mot. to Intervene 3

records he requested.”).

Accordingly, on June 2, 2023, Prosecutor Fagan filed his Verified Complaint seeking

(1) a declaratory judgment that Defendant Commission unlawfully withheld the E-mail Records

and (2) injunctive relief ordering Defendant Commission to immediately produce the E-mail

Records to Prosecutor Fagan and to perform a forensic audit of the La Porte County server for

any deleted E-mail Records and a report regarding who had access to those E-mail Records.

Verified Compl., 16, ¶¶ A–C. On June 13, 2023, Lake filed a motion to intervene as a defendant

to this matter. Mot. to Intervene, 5. Based on the following, Prosecutor Fagan requests this Court

deny said motion.

Legal Standard

Under Ind. Trial Rule 24(A)(2), intervention as of right may be granted if the intervenor

satisfies a three part test by establishing: “(1) an interest in the subject of the action; (2)

disposition of the action may as a practical matter impede the protection of that interest; and (3)

representation of the interest by existing parties is inadequate.”4 Flat Rock Wind, LLC v. Rush

Cnty. Area Bd. of Zoning Appeals, 70 N.E.3d 848, 856 (Ind. Ct. App. 2017) (citation omitted);

see also In re Paternity of E.M., 654 N.E.2d 890, 892 (Ind. Ct. App. 1995).5

4
Indiana Trial Rules also address permissive intervention, which Lake has not raised and
therefore is not at issue in this Motion. See Ind. Trial Rule 24(B). Prosecutor Fagan nevertheless
maintains that Lake does not meet the requirements for permissive intervention.
5
Timeliness of a motion to intervene may also be considered by a court, see Llewellyn v.
Beasley, 415 N.E.2d 789, 792 (Ind. Ct. App. 1981), but Prosecutor Fagan does not dispute the
timeliness of Lake’s Motion.

Opp’n to Mot. to Intervene 4

 The intervening party bears the burden of establishing the right to intervene. Gregory v.

Koltz, 204 N.E.3d 256, 266 (Ind. Ct. App. 2023); Llewellyn, 415 N.E.2d at 794; Citimortgage,

Inc. v. Barabas, 975 N.E.2d 805, 812 (Ind. 2012). Whether a prospective intervenor has met his

burden is in the sound discretion of the court. Llewellyn, 415 N.E.2d at 793; Gregory, 204

N.E.3d at 266.

Argument

I. Lake Has No Legally Cognizable Interest in the E-mail Records.

The first step in determining whether an intervenor has met his burden is whether he has

established an interest in the action. Courts have made clear that “[t]he analysis of what

constitutes an ‘interest’ under T.R. 24(A) to require intervention leads one into a legal quagmire

which resolves little but the immediate decision.” Gregory, 204 N.E.3d at 266–67 (Ind. Ct. App.

2023) (In re Paternity of E.M., 654 N.E.2d at 892). Indiana courts have adopted a narrow

construction of Ind. T.R. 24, based on Donaldson v. United States, 400 U.S. 517 (1971). Id. In

doing so, Indiana “courts have required ‘more of an “interest” to merit intervention as of right

than the language of the Rule itself might suggest.’” Id. (quoting Llewellyn v. Beasley, 415

N.E.2d 789, 795 (Ind. Ct. App. 1981).

An prospective intervenor must claim an interest in the proceedings that is immediate and

direct. Id. at 266–67 (citing In re Paternity of E.M., 654 N.E. 2d at 893). Other cases “suggest

that intervention requires a direct, substantial, legally protectable interest in the proceeding, or a

significantly protectable interest.” Id. at 267 (citing Hinds v. McNair, 287 N.E.2d 767, 772

(1972)). “Put succinctly, the intervenor of right ‘must have an interest recognized by law that

Opp’n to Mot. to Intervene 5

relates to the subject of the action in which intervention is sought.’” Id. (quoting State ex rel.

Prosser v. Indiana Waste Sys., Inc., 603 N.E.2d 181, 187 (Ind. Ct. App. 1992) (emphasis added).

A. Lake Has No Rights to the E-mail Records and So Does Not Have Any Legally
Cognizable Interest in Them.

Lake has not met his burden of proving he has a legally cognizable interest in the E-mail

Records. In fact, Lake has not even provided this Court with the relevant case law regarding what

qualifies as an “interest.” As shown above, Indiana has adopted a narrow construction of this

rule, requiring “an immediate and direct interest in the proceedings[,]” which requires, inter alia,

“an interest recognized by law that relates to the subject of the action[.] Gregory, 204 N.E.3d at

266–67 (emphasis added).

Lake has not claimed that he has any interest “recognized by law.” See generally Mot. to

Intervene. Nor has he cited to any statutory or case law to allege he has an interest “recognized by

law.” Id. Nor can he do so.

Lake does not own the E-mail Records, he has no property interest in the E-mail Records,

he has no right to access the E-mail Records, and he does not have custody of the E-mail

Records. Indeed, Indiana law required him to deliver all records to his successor upon the

termination of his tenure. IC § 5-15-5.1.15(a) (“A public official who has the custody of any

records, excluding personal records, shall at the expiration of the public official’s term of office

or appointment, deliver to the public official’s successor . . . all materials defined as records by

this chapter.”) Records, as defined under Ind. Code ch. 5-15-5.1, include e-mail

Opp’n to Mot. to Intervene 6

communications.6

Accordingly, upon his transition out of office, Lake was required to deliver any records to

his successor in office, Prosecutor Fagan.7 He retained no ownership of, access to, right to,

custodial relationship with, control over, or property interest in the E-mail Records.

Given his inability to point to any interest “recognized by law,” Lake simply alleges that

he has an interest in the subject of the lawsuit because disclosure of personal records “would be

harmful to [him].” Mot. to Intervene, 4 ¶ 15. But alleging that disclosure of something would be

“harmful” is different than having an immediate, direct, substantial, legally protectable interest or

a significantly protectable interest in the proceeding. Lake has provided no law that recognizes,

or even suggests, that a former public official has a legally cognizable interest in the records of

his former office.

So Lake has not established a legally cognizable interest in the E-mail Records. Nor can

he, as Indiana law required him to deliver all records to his successor upon the termination of his

tenure. Lake, thus, has no interest or right to the E-mail Records.

6
This conclusion was properly reached by the Office of the Attorney General, the Public
Access Counselor, and the Indiana Prosecuting Attorneys Council. Verified Compl., ¶ 63 (citing
Attorney General Demand Letter, Verified Compl., Ex. 1, 1; Public Access Counselor Letter,
Verified Compl., Ex. 2; Prosecuting Attorneys Council Letter, Verified Compl., Ex. 3.
7
He did not do so, as it is undisputed that Lake did not provide e-mails. Supra 2 n. 1.
Nevertheless, this case is not about whether Lake complied with the statute and has no bearing on
the merits. This case is about Defendant Commission’s duty to return E-mail Records that belong
to the prosecuting attorney.
Regardless of whether Lake complied with the statute or not, upon the expiration of his
term, he retained no interest in the E-mail Records. Nor are they in Lake’s custody or control,
since they are now held by Defendant Commission.

Opp’n to Mot. to Intervene 7

B. Lake’s Alleged Interest Is No Different than Any Other Former Employee or
Citizen.

The E-mail Records belong to the Office of the Prosecuting Attorney, not to any

individual. See Verified Compl., ¶¶ 14, 75, 81. Given that Lake is no longer prosecuting attorney

(his tenure ended on December 30, 2022, Mot. to Intervene, 1 ¶ 1), any interest Lake had in the

E-mail Records in his official capacity as prosecuting attorney ceased on that date.

Lake, even though he was formerly a prosecuting attorney, is now a regular citizen, has

no authority over the E-mail Records, and is in no different position than any other former

employee of the office or any other La Porte County citizen. Accordingly, he cannot claim

ownership or interest in any information in the possession of the prosecutor’s office or Defendant

Commission.

In sum, Lake cannot articulate or demonstrate an immediate and direct interest in the E-

mail Records that is distinguishable from the generalized interest shared by all former employees

or citizens, and should not be permitted to intervene as a matter of right in this matter.

C. This Case Relates to Defendant Commission’s Duty to Deliver the E-mail Records,
Not Any Duty by Lake.

Because Lake previously ceded the E-mail Records to a third party, Defendant

Commission, this case only involves the duty of Defendant Commission to produce E-mail

Records that are the property of the prosecuting attorney. See generally Verified Compl. It does

not involve Lake’s duty to produce the records (any such action would need to be pursued under

IC § 35-44.1-1-1(4), not under the present case).

Prosecutor Fagan has shown that Defendant Commission has a duty to produce the E-

Opp’n to Mot. to Intervene 8

mail Records. The Indiana Supreme Court interprets Ind. Const. Art. 7 § 16 to mean the

prosecuting attorney is a judicial officer, independent of the county executive. Williams v. State,

430 N.E.2d 759, 765 (Ind. 1982) (holding that a prosecutor is a judicial officer and “any

discretionary power given to the prosecuting attorney is exercised under the control of the

judicial branch”). Indeed, the prosecuting attorney is not elected for each county, but in “each

judicial circuit” of the state. Ind. Const. Art. 7 § 16. For this reason, the Indiana Supreme Court

has remarked that “[j]udges of the circuit courts and prosecuting attorneys are not state, county,

or township officers[,]” State ex rel. Pitman v. Tucker, 46 Ind. 355, 359 (1874) (citations

omitted); State v. Patterson, 181 Ind. 660, 663, 105 N.E. 228, 229 (1914) (judges and

prosecuting attorneys are constitutional officers; they are not county officers) (citing State v.

Friedley, 135 Ind. 119, 34 N.E. 872, 874 (1893); Bd. of Comm’rs of Elkhart Cnty. v. Albright,

168 Ind. 564, 81 N.E. 578, 582 (1907)), but rather are officers of the circuit.

Officers of circuits are simply officers of the State of Indiana whose jurisdiction

extends to territorial divisions of the state but nonetheless are not independent of the state. See

Woods v. City of Michigan City, 940 F.2d 275, 279 (7th Cir. 1991) (Indiana circuit and superior

court judges are judicial officers of the state, “they are not county officials”) (citation omitted).

As a judicial officer, the prosecuting attorney enforces state law and is neither answerable to

county authorities, nor exercises county power.

Most importantly, beyond determining what level of funding is “necessary”, counties

exercise no discretion or control over prosecutors. See State ex rel. Schuerman v. Ripley County

Council, 182 Ind. App. 616, 395 N.E.2d 867 (1979); Brown v. State ex rel. Brune, 172 Ind. App.

Opp’n to Mot. to Intervene 9

31, 359 N.E.2d 608 (1977). This level of independence is necessary and noncompliance by

Defendant Commission jeopardizes county criminal prosecutions and efficient continuity of

government. Verified Compl., ¶¶ 45, 73.

In light of this, all relevant authorities have found that the E-mail Records belong to

Prosecutor Fagan, not Defendant Commission, and Defendant Commission has no authority to

withhold them. Verified Compl., ¶ 75 (citations omitted).

Accordingly, Prosecutor Fagan brought the instant case to require Defendant Commission

to comply with their duty to produce the E-mail Records. This case does not involve any duty by

Lake to produce records. So Lake cannot claim any legally cognizable interest in this matter.

D. The “Personal Records” Exclusion Does Not Apply as There Is No Expectation of

Privacy for Employees Utilizing Internal Government E-mail System.

1. The E-mail Records Are Not Personal Records.

Lake incorrectly argues that full access to the E-mail Records would include the

disclosure of “personal records.” See IC § 5-15-5.1-15(a); IC § 5-15-5.1-1(m); Mot. to Intervene,

2 ¶¶ 8–10. Indiana Code § § 5-15-5.1-1(m) lists specifics types of personal records, including

“diaries, journals, or other personal notes serving as the functional equivalent of a diary or

journal that are not prepared or used for, or circulated or communicated in the course of,

transacting government business[.]” E-mails exchanged using a government e-mail address on a

government server are not in the same category as “diaries, journals, or other personal notes[.]”

Id.

That this section does not contemplate e-mails exchanged using a government e-mail

address on a government server as the functional equivalent of a diary, journal, or personal note

Opp’n to Mot. to Intervene 10

is supported by the county policies regarding personal e-mails and communications. The LaPorte

County Government Employment Handbook of Policies and Procedures (“County Handbook”)

provides:

E-mail, computer, and voice mail systems are the County’s property and are intended
for business, not personal, use. The LaPorte County electronic mail system, both
internal and external, is for County business only. Sending or forwarding personal
e-mail or other non-County business e-mail is strictly prohibited. Similarly, access
to the Internet is for County business only, and any personal or non-County
business-related use is strictly prohibited. Offending employees may be disciplined
and/or have electronic mail or Internet access disabled. Employees have no right of
privacy as to any information or files maintained in or on the County’s property or
transmitted or stored through the County’s electronic information systems or other
technical resources.

Apr. 21, 2009, attached as Exhibit 5, 26 (emphasis added). Likewise, the LaPorte County IT

Standards and Procedures (“IT Standards”) provides that users “shall not have the expectation

that their e-mail files are private.” IT Standards, attached as Exhibit 6, 2 § 1.8.

While Prosecutor Fagan concedes that these sections do not bind the prosecutor’s office,

as the county does not exercise authority over it, there is no evidence that the prosecutor’s office

has deviated from these policies of the county (which provide its e-mail service) or have

established that employees do have an expectation of privacy for e-mails exchanged using a

government e-mail address on a government server.

Lake, who has the burden of proof, has offered to no evidence that former employees of

the prosecutor’s office had an expectation of privacy when using government email on a

government server. Additionally, case law, public records law, and county policies dictate that

there is no expectation of privacy for work communications. Infra Part I.D.2.

Opp’n to Mot. to Intervene 11

 2. Case Law, Access to Public Records Act, and Government E-mail Policies,
Establish There Is No Expectation of Privacy for Work Communications.

Lake had no expectation of privacy in his e-mails transmitted via a government e-mail

address and on a government server.

In the private sector, it has long been established that there is no expectation of privacy

for employees utilizing their employee e-mail. See Smyth v. Pillsbury Co., 914 F. Supp. 97, 101

(E.D. Pa. 1996) (finding an employee did not have a reasonable expectation of privacy when

sending unprofessional e-mails over his employer’s e-mail system). Numerous jurisdictions

across the country have adopted the same holding. See, e.g., Walker v. Coffey, 905 F.3d 138, 149

(3rd Cir. 2018) (finding no clearly established right to privacy in the content of work e-mails);

Garrity v. John Hancock Mut. Life Ins. Co., No. CIV.A. 00–12143–RWZ, 2002 WL 974676, at

*1–*2 (D. Mass. May 7, 2002). If private employees do not have an expectation of privacy, it

follows that government employees would have even less expectation of privacy using

government e-mail addresses on a government server.

The Access to Public Records Act (“APRA”) makes it even more clear that work

communications of public offices have even less expectation of privacy than the private sector.

Under APRA, the internal communications of a public office are subject to even greater

transparency and less expectation of privacy. This is because it is the public policy of the state

that all persons are entitled to full and complete information regarding the affairs of government

and the official acts of those who represent them as public officials and employee. Indiana Public

Access Laws, Luke Britt, https://www.in.gov/sboa/files/Public-Access-Counselor.pdf, at 2.

Likewise, while the county has no authority over the prosecutor’s office, the e-mail

Opp’n to Mot. to Intervene 12

service utilized by the prosecutor’s office is provided by the county, who has made clear that

users do not have an expectation of privacy for private communications. See supra Part I.D.1.

There is no evidence to suggest that the prosecutor’s office has deviated from county policies

regarding using government e-mail for personal use. Id. Nor has Lake provided evidence of any

policy that using government email for personal use was permitted or would have an expectation

of privacy.

Because the E-mail Records sought were transmitted on a government server and via

government-issued e-mail addresses, Lake does not have an expectation of privacy in the e-mails

and thus cannot characterize the E-mail Records as “personal records.”

E. Public Policy Supports Denial of Intervention.

First, if Lake is permitted to intervene in this case, it opens the door for every former

employee of the prosecutor’s office to intervene and have unfettered access to the records of the

prosecutor’s office to discuss, negotiate, and parse through which would be considered

“personal” and which would not. This surely cannot be permitted.

Second, it would be against public policy to prohibit the current prosecuting attorney

from taking possession of records belonging to his office (and that are necessary to his

constitutional and statutory duties, and for the consistent prosecution of cases in La Porte

County), because such E-mail Records may also contain some personal information. Criminal

prosecutions in the county should not be jeopardized because some personal information may be

contained with relevant and important information related to prior and pending cases Prosecutor

Fagan inherited from his predecessor (including communication with victims, communications

Opp’n to Mot. to Intervene 13

with opposing counsel, communications between deputy prosecuting attorneys regarding

strategies and work-product, drafts, etc.).

Third, government employees have a responsibility to protect and conserve government

property and resources and to make an honest effort to use official time and government property

only for official business. Allowing them to participate and shield personal communications from

disclosure to successors in office promotes personal use of government e-mails.

Fourth, there is no mechanism to allow former employees or former prosecuting attorneys

to retain, access, or parse through e-mails after their transition out of office. Any sort of action to

retain, access, or parse through e-mails occurring after a former employee’s transition out of

office is not timely, as these actions should have occurred prior to the former employee’s

transition out of office.8

Accordingly, public policy supports denial of intervention.

F. Even If Lake Previously Held a Right to Personal Records, He Waived That Right
by Not Initially Delivering the E-mail Records in Accordance with State Law.

Lake waived his right to withhold personal records by not initially producing them in

accordance with state law, so any opportunity to withhold records has ceased. See IC § 5-15-5.1-

15(a). As discussed, Lake was required to deliver all records, including E-mail Records, to his

8
If a public official does not want personal records shared with a successor, there are
mechanisms to do so. First, a public official could not use government e-mail and/or government
server for personal communications. Second, a public official could delete any personal records
from their e-mail. Third, a public official could properly deliver e-mails, excluding any personal
ones, to the successor at the expiration of that person’s term. There is no mechanism to go back
later and discuss, negotiate, and parse through which should be withheld, as the former public
official no longer has access, authority, or control over the records. Yet, that is exactly what Lake
desires. His failure to deliver or facilitate delivery of the E-mail Records does not give him an
interest in or authority over such records.

Opp’n to Mot. to Intervene 14

successor at the end of Lake’s term. Id. Because Lake did not comply with the statute and did not

deliver the E-mail Records to his successor, supra 2 n. 1, he waived any right to those records.

In sum, Lake’s time to separate out personal E-mail Records was at the expiration of his

tenure. His personal choice to not do so does not give him an interest in this lawsuit.

II. Disposition of the Action Will Not Impede the Protection of Any Interest of Lake.

Given that Lake has not met his burden to establish a legally cognizable interest, and

given that no such interest exists, this Court need not go further. Nevertheless, Prosecutor Fagan

also shows why the remaining elements are not met.

The second step is for this Court to determine whether Lake has met his burden to prove

that disposition of this lawsuit may impede his ability to protect his interest. “Where the interests

of intervenors would not be impaired as a practical matter, intervention may be properly denied.”

In re Remonstrance Appealing Ordinance Nos. 98-004 98-005, 98-006, 98-007 & 98-008, of

Town of Lizton, 737 N.E.2d 767, 769 (Ind. Ct. App. 2000) (citing Bryant v. Lake County Trust

Co., 334 N.E.2d 730, 736 (Ind. Ct. App.1975), reh’g denied).

As discussed, supra Part I, Lake does not have any separate interest requiring protection,

and so disposition of the action will not impede his ability to protect any interest. This is unlike

cases where courts have found disposition of an action directly affects a property owner, like

where the owners’ right to build on their parcel of land is jeopardized. See., e.g., Town of Lizton,

737 N.E.2d at 769–70.

And even if Lake did have an interest in the E-mail Records, this case is solely about to

Commission’s duty to produce records belonging to the prosecuting attorney, not any duty by

Opp’n to Mot. to Intervene 15

Lake, so disposition of this lawsuit will not impede Lake’s ability to protect any alleged interest.

Lastly, Lake’s threat of filing a separate lawsuit is frivolous as he has no legal claim to the

records. See Mot. to Intervene, 4 ¶ 16; supra Part I.

In sum, because Lake has not met and cannot meet his burden to prove he has an interest

in the E-mail Records (supra Part I) and because this lawsuit concerns no duty by Lake,

disposition of this lawsuit will not impede Lake’s ability to protect any interest. Intervention

should be denied.

III. Lake Is Adequately Represented by Existing Parties.

The final step is for this Court to determine whether Lake has met his burden to prove

that his interest is not adequately represented. He has not.

Courts have found intervention as of right is permissible where the representative party

clashes with or takes a position against one of these interests. E.g., Town of Lizton, 737 N.E.2d

767 at 770 (finding that parties were at cross-purposes and so prospective intervenor was not

adequately represented). Here, Lake cannot establish a direct and immediate interest, but even if

he could, Lake cannot establish that any such interest is not adequately represented by existing

parties.

As discussed, supra Part I.C., Lake handed the records over to a third party, Defendant

Commission, so this case involves Defendant Commission’s duty to produce the records, not

Lake’s duty. Defendant Commission is represented by counsel and such counsel is adequate to

represent any interest Lake might claim. Moreover, Defendant Commission’s position does not

clash with Lake’s. Defendant Commission’s position is that they have the authority to withhold

Opp’n to Mot. to Intervene 16

all records. Lake’s position is that Defendant Commission should withhold personal records.

These aren’t cross-purposes. Finally, whether Defendant Commission is aware of what personal

records exist is irrelevant as Lake does not have an expectation of privacy to those records. See

Mot. to Intervene, 4 ¶ 18; supra Part I.

In sum, Lake has not met his burden to prove he has an interest that is inadequately

represented.

Conclusion

Because Lake has not and cannot meet his burden to prove he has a legally cognizable

interest in the action, that disposition of the action as a practical matter impedes protection of any

interest, and representation of any alleged interest by the existing parties is inadequate, this Court

should deny the Motion to Intervene.

Dated: July 3, 2023 Respectfully Submitted,

Theodore E. Rokita
Indiana Attorney General
Attorney No. 18857-49

By:
/s/ Courtney Turner Milbank
James Bopp, Jr., Ind. Bar #2838-84
Courtney Turner Milbank, Ind. Bar #32178-29
THE BOPP LAW FIRM, PC
The National Building
1 South 6th Street
Terre Haute, Indiana 47807
Telephone: (812) 232-2434
Facsimile: (812) 235-3685
jboppjr@aol.com
cmilbank@bopplaw.com
Counsel for Plaintiff

Opp’n to Mot. to Intervene 17

 Certificate of Service

I certify that on July 3, 2023, I electronically filed the foregoing documents using IEFS.

I further certify that on July 3, 2023, the foregoing was served upon the following person

via IEFS, if Registered Users, or by depositing the foregoing document in the U.S. Mail, first

class, postage prepaid, if exempt or non-registered user.

Guy S. DiMartino
1411 S Woodland Av.
Michigan City, IN 46360
gsd@gsdimartino.com

John Frederick Lake

P.O. Box 9216
Michigan City, IN 46361
lakelaw101@hotmail.com
/s/ Courtney Turner Milbank
Courtney Turner Milbank

Opp’n to Mot. to Intervene 18