Lawsuit Claims RFRA “Fix” Was Invalid

As posted at the informative Indiana Law Blog, a lawsuit has been filed to overturn Indiana’s RFRA amendments as well as recent human rights ordinances enacted in Marion County and Carmel, Indiana. A link to the post, which contains a link to the complaint, can be found here.

I will have a write up on this after my entirely too long sabbatical.

INRFRA 2.0 – The Good, the Extraneous, and the Hollow

Here is a link to the text of the amendments to the new and improved INRFRA.

I am not going to get into the damage done to the reputation of Indiana or the economic impact of the past week (unless you’re Memories Pizza).

More than anything, the whole ordeal was an exercise of rhetoric elevated above substance all while under a national microscope. Some failed to distinguish that there are RFRA’s that do not infringe on LGBT rights and that most do not when they are well written. Others, it seemed, failed to notice that relgious freedoms are not mutually exclusive of their effect on LGBT rights.

I want to thank those who have helped perpetuate a civil discussion on this blog and have contributed thoughtful comments and questions. Laws are not simple things. But if we don’t wrestle with their language and effects and make conclusions, we risk falling back on the rhetoric of those who understand them even less.

With that said, let’s discuss the so-called fix to INRFRA,

The Good

Indiana has its first law that mentions LGBT rights. Some out there might not consider this a good, but I would say the majority out there thinks this is a good thing. The law also adds the always needed exceptions from applying to criminal and civil rights laws, inlcuding those ordinances and laws that protect public accommodations for LGBT rights.

From our discussions, it seemed clear that the law risked infringing upon these rights in certain circumstances and I think this amendment effectively does what it purports to do, which is what, again, was proposed back in February and voted down.

The Extraneous

While the language added to the amendments is commendable. It really means nothing at all until predicate laws protecting LGBT rights become more prominent in Indiana. Recall that very few cities and counties have such protections and that no statewide LGBT public accommodations protections exist. Remember also that all RFRA’s require predicate government action or laws of some kind. If there are no laws that protect LGBT rights, there is no religious objection to be made (if we continue to use the oft-used context of late).

So, in effect, those counties and cities that had no human rights laws or ordinances protecting LGBT rights (including Walkerton, home of Memories Pizza) can go on denying such public accommodations as they could before all of this started.

The Hollow

In the end, the State of Indiana still has few protections statewide for LGBT rights. While there is likely little to occur for the remainder of this session, it will be interesting to see if the dialogue shifts toward a state human rights law protecting LGBT rights.

If nothing else, the events of the past week have provided a cautionary tale to other states on how not to pass a RFRA law.

INRFRA – How did we get here and what happens next?

How did we get here?

Several people are wondering or trying to explain how this entire controversy began. Some cite blame to the opposing party, some cite ignorance or surprise. I will do my best to provide a history of what was known and unknown going into this.

  • Before all of this began, Indiana had no civil rights legislation that protected sexual orientation. As a state, it still does not. Rather, certain local governments (counties and cities) have adopted human rights ordinances that bar discrimination in public accommodations based on sexual orientation. Such protections already existed for the more widely accepted protected classes (i.e. geneder, race, national origin, etc.). Cities that have such ordinances include Indianapolis, South Bend, Evansville, and Bloomington.
  • In or about March 2014, there was indeed a bakery that refused to cater for a gay union ceremony, citing religious reasons. As one might expect, a bit of a media firestorm ensued.
  • At around this same time, House Joint Resolution 3, which sought to write a ban on gay marriage into Indiana’s Constitution was authored and sponsored by the following people:

Authored by Rep. P Eric Turner.
Co-Authored by Rep. Timothy Wesco, Rep. Wes Culver, Rep. Rhonda Rhoads, Rep. Robert Heaton, Rep. Don Lehe, Rep. Matthew Lehman, Rep. Randall Frye.
Sponsored by Sen. Dennis Kruse.

We are confident that Indiana courts will likewise be inclined to resist such claims under the Indiana RFRA. Protecting Americans from discrimination is generally a compelling interest, and few claims to exemption from anti-discrimination laws are likely to succeed. (Feb. 5, 2015 Letter, p. 5.)

  • In response to whether a religious objection could be asserted successfully against laws preventing discrimination based on sexual orientation, the answer was less committal:

But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption. (Id., p. 6.)

In our expert opinion, the clear evidence suggests otherwise and unmistakably demonstrates that the broad language of the proposed state RFRA will more likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. (Feb. 27, 215 letter, p. 7.)

  • On March 26, 2015, Gov. Pence signed SB 101 into law, codified as Ind. Code § 34-13-9-1, et seq. The law’s authors are credited as follows:

 Authored by Sen. Dennis Kruse, Sen. Scott Schneider, Sen. Brent Steele.

Co-Authored by Sen. Carlin Yoder, Sen. James Buck, Sen. Amanda Banks, Sen. Liz Brown, Sen. James Smith, Sen. James Tomes, Sen. Greg Walker, Sen. Brent Waltz, Sen. Mark Messmer, Sen. Jean Leising.
Sponsored by Rep. Timothy Wesco, Rep. Jud McMillin, Rep. Don Lehe, Rep. Milo Smith, Rep. Bruce Borders, Rep. Dale DeVon, Rep. Timothy Harman, Rep. Robert Heaton, Rep. Chris Judy, Rep. Eric Allan Koch, Rep. Robert Morris, Rep. Alan Morrison, Rep. Mike Speedy, Rep. Jeffrey Thompson, Rep. Thomas Washburne, Rep. Matthew Lehman, Rep. David Frizzell, Rep. Randall Frye, Rep. Richard Hamm, Rep. Curt Nisly, Rep. Woody Burton, Rep. Anthony Cook, Rep. Doug Miller, Rep. Jim Lucas, Rep. Rhonda Rhoads. (Names in bold were behind House Joint Resolution 3 above.)

What happens next?

It will be interesting to see how this plays out.

Democrats are now asking for the repeal of RFRA in addition to civil rights laws in order to show the nation, whose eyes are focused on Indiana until Arkansas takes the target baton, that Indiana does not discriminate against anyone. Such steps may also ebb the fallout of businesses and individuals withdrawing their investments in the state.

As for Gov. Pence and the Republican base, it will be interesting to see if they now offer to use Sen. Lanane’s previously proposed amendment or whether some broad language as to the statute’s intent would suffice.

If Indiana winds up adopting a statewide civil rights law that prevents discrimination based on sexual oritentaition though, it will have to be considered one of the more significant political backfires (or poetic justice depending on your viewpoint) that my semi-young eyes have ever seen. Other than the obvious reasons, it will mean that the legislatators who proposed the anti-LGBT laws above would now have to recognize civil rights based on, at least, sexual orientation when so such requirements existed before in most of their home cities and/or counties.

Please feel free to cite other relevant facts in the Comments section below.

Indiana’s RFRA – A Second Look

I would like to thank everyone who took the time to read my post on Friday regarding Indiana’s Religious Freedom Restoration Act. I was not expecting such high readership but it seems that several people had the same questions I did. I have been reviewing the comments – which pro or contra have been predominantly constructive and civil – as well as following the news and recent developments, including Gov. Pence’s appearance on This Week and his plan to clarify INRFRA.

There are several issues and questions surrounding this law and based on a survery of questions I have received, I will attempt to address a few as the day goes on.

The ultimate issue is going to be whether protection of LGBT rights is a “compelling” enough government interest when balanced against relgious freedom. See Ind. Code § 34-13-9-8(b) (“A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest”). How might this issue play out?

Let’s begin with the legal basis of INRFRA. While I linked it in my previous post, please take the time to read this letter from 16 law professors to Sen. Brent Steele, who co-authored the bill, and to also review the legislative history of the law, including proposed amendments that did make it into the bill (note Sen. Tim Lanane’s proposed amendment which did not make the cut).

Looking at the above letter, there are some statements which I thought stood out and lend to the controversey at issue.

For many religious believers, weddings are inherently religious events in which their participation must conform to religious obligations. This creates a serious conflict for religious individuals who personally provide creative services to assist with weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption.

(Letter, p. 6.)

I happen to agree with the conclusion. The reason we do not know if an exemption would apply though is because there is no precedent that would suggest the State has a compelling interest in protecting LGBT rights. While there are human rights ordinances in place at the city and county level, would those ordinances be deemed to be a “compelling” government interest in the eyes of the State? There is no precedent for or against any such finding that I have seen. Cases that have addressed the issue had applicable human rights laws at the state level. This lack of precedent is also due in part to the only recent ratification of gay marriage amongst most federal circuits.

What we do know is that the legislation is designed to give greater and clearer protection for religious freedom

By explicitly codifying this test in the Indiana Code, the proposed legislation would give religious freedom more transparent and more secure protection, explicitly instructing judges that religiously motivated conduct is legally protected, subject to the compelling-interest test.

(Letter, p. 4.)

So, it’s fair to say that we are entering unknown legal territory but the framework in place in Indiana is one that favors religious freedom over LGBT rights.

Is it inaccurate to say that this legislation is just like the federal statute? Yes.

Aside from being procedurally engineered to get to a courtroom ASAP, the law as written will not be analyzed by an Indiana Court through the same rubrick that the federal legislation goes through. Indiana arguably puts greater emphasis on religious freedom and clearly offers no civil or human rights protections based on sexual orientation.

This is the exact opposite of the federal level, where protections based on sexual orientation have at least come up enough to demonstrate it as a “compelling” government interest.

Therefore, the difference, if not in how they are written, is that the federal government has shown such protections to be a government interest whereas Indiana has not (i.e. how they are applied). So, let’s dispense with pretending that similarities in how the laws are drafted would equate to them being applied the same way.

What is the potential longview here?

I have stated and still believe that this law is designed to cast a wide net in terms of those who might claim a religious objection and then carry out that objection through multiple levels of litigation. On top of that, Section 9 allows for such litigation to proceed without the inclusion of, for example, the City government if it was a human rights ordinance at issue.

As stated above, we should all be able agree that this is one of the few remaining grey areas of LGBT rights. It is unknown how litigation would play out. So, what happens if Indiana law says that one can make a religious objection based on the laws here as written? Would other states follow suit in their legislation or case law?

How can the law be clarfied?

There are valid reasons to have a procedrual safeguard contained in religious freedom acts. They indeed make it easier for Courts to decide issues of laws in conflict with religious principles. So, the law will always be there. That does not mean it cannot or should not be amended.

The catch in these statutes is whether they can explicitly serve as defenses in civil rights claims or they provide safeguards against acts of discrimination within the claim. It is unknown if the legilslature will respond to the public outcry by so amending the statute.

Addendum No. 1: here is a recent story I had to the good fortune of commenting on for Indianapolis ABC.

Addendum No. 2: I have been asked whether INRFRA could justify the committing of a crime. That’s a two-part answer. Under the current version of the law, you could use the act to assert a “religion” defense. After that, your defense will be shot down fairly easily. There has to be a “compelling government interest” in the challenged law. Typically speaking, laws against crime all reflect a valid and compelling government interest. You can’t cut your neighborhood’s power on Shabbos and you can’t drink and drive by overconsuming the blood of Christ.

The Indiana Religious Freedom Restoration Act – An Analysis of Its Controversy

I have a posted a follow-up in order to address some, but not all, questions I have received over the past few days.

Also, here is a recent story from ABC Indianapolis regarding these points.

I will preface this post by saying that I am not a supporter of the Indiana Religious Freedom Restoration Act (IRFRA), a/k/a Ind. Code § 34-13-9, et seq. As this post goes on, those reasons will become self-evident but it is mostly because it is so vague and just a poorly written law. However, more than anything, there is a shocking lack of actual analysis of this statute and several arguments are being thrown out there which are rather unfounded. As an Indiana citizen and lawyer, I will do my best to provide insight as to what this bill purports to do and why it has drawn the ire of so many both within and without the borders of this state. So, I invite you, the reader, to take the time to go through this bill and decide for yourself, without prejudice, what you think of this newest piece of legislation (the full text of the law is below beside the titular parallel federal legislation.

Does IRFRA resemble its federal counterpart?

The short answer here is no.

I have seen the point made that federal democrats in 1993 passed a similar bill into law. This is in reference to 42 U.S.C. § 2000bb, which was indeed passed during the Clinton administration. This sound-byte is apparently made to imply that the left cannot complain because they created the blueprint.

Indeed, as Gov. Pence provided in his statement yesterday: “Fortunately, in the 1990s Congress passed, and President Clinton signed, the Religious Freedom Restoration Act—limiting government action that would infringe upon religion to only those that did not substantially burden free exercise of religion absent a compelling state interest and in the least restrictive means.” See Gov. Mike Pence signs ‘religious freedom’ bill in private.

The flaw in this implication is that it is misleading for several reasons. The federal act was deemed inapplicable to state actions. Consequently, several states have copied the federal act or have adopted similar legislation. A fair collection of all religious freedom statutes and court decisions can be found here. (Hats off to Liberty Counsel for making the effort to compile this list and publish it.) Upon my quick scan, Indiana’s version of the bill most resembles a similar law passed in Texas in 1999 but even that bill contains significant limitations that Indiana’s does not.

What is clear is that Indiana has not copied the federal legislation or those passed by other states, but has instead added more expansive language as seen below. The IRFRA adds several clauses which rightly give pause to the endless possibilities of using religion and religious freedom as a sword and a shield.

What are the controversial provisions and why?

Let’s start with Section 5, which reads: “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” (Emphasis added.)

First, note the lack of any restrictive language in this paragraph. The word “includes” is deliberately used in place of “means.” The latter would at least limit “any exercise of religion” to the predicate definition. “Includes” just means that this is but one example of exercising religion. (Here the law goes beyond its most similar counterparts in Texas and New Mexico which use “means”.) While this language indeed mirrors the federal legislation, proponents of the IRFRA have submitted that Indiana’s constitution protects religious freedom to greater extent than federal law.  Second, religion is not defined. So, “any exercise of religion” is subject to a fairly broad interpretation. Third, any action which may fall under the “exercise of religion” may or not be “compelled by, or central to, a system of religious belief.” In other words, even if the belief is at the fringe of what a religion may or may not hold true, it falls under this definition of exercising one’s religion.

Section 7 then reads:

As used in this chapter, “person” includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

(Emphasis added.) The potential danger in this aspect of the statute is that it may become self-fulfilling. For example, as has been cited before, say a hotel corporation with a religious owner refuses service to an individual based upon his religious beliefs. Now, even if that person had not previously exercised such practices, this Act, which requires no more than two religious practices that fall into this category, would allow a corporation to begin a discriminatory practice in the name of free exercise (and remember now how broadly exercising religion is defined?).

This inevitably leads the reader to Section 9, which reads:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

(Emphasis added.)

In other words, you can defend yourself in a criminal or civil action on the very broad basis of “any exercise of religion.” Where this may apply the most would be a Court’s ability or inability to apply a human rights ordinance against someone with a religious objection. (That we can even have an exercise in religion running directly against a human rights ordinance is cause alone for concern.) Such ordinances typically prohibit the discrimination employment, housing, education and public accommodations on the basis of a person’s sexual orientation or gender identity. The cities and counties in Indiana with these ordinances in effect are the City of Bloomington, the City of Evansville, the City of Indianapolis, Marion County, Monroe County, and the City of South Bend.

What makes this law new and different is its application to disputes between private citizens. That is not to say that such laws could not be used in private matters (in fact, Alabama, Connecticut, Florida, Idaho, New Mexico, Oklahoma, South Carolina, and Texas all have similar prvisions). Indiana’s version of the law, though, goes the extra mile to ensure the matter could remain between private individuals. It is the only one I have seen where the State can explicitly intervene at its discretion.

The timing factor.

Perhaps the most frustrating aspect of this law to its opponents is that it comes right after Indiana’s very public and very unsuccesful bid to ban gay marriage. Our own attorney general went state to state submitting amicus briefs in support of laws that would prevent state-sanctioned gay marriage. The state’s arguments at the 7th Circuit were nearly laughed out of the courtroom and were called out for what they were: discrimination based on personal views. The proponents of the IRFRA seem to gloss over this aspect even though the proponents of this bill were the same who had tried to ban gay marriage through Indiana’s Constitution. The exasperation could probably summed up as: “Look, if you hate the LGBT community, so be it . . . but don’t act like this law has nothing to do with it.”

What to make of it all?

As usual, it seems the truth lies somewhere in the middle.

Those against the bill may cite that 1) it may be applied more broadly than any of its predecessors at the state and federal level; 2) if properly based on religious grounds, it will override human rights ordinances that had protected LGBT rights; and 3) it coincidentally comes on the heals of Indiana’s effort to combat gay marriage.

Those in favor of the bill may argue that its predecessors, particularly those found in Texas and New Mexico have been around, constitutionally applied, and that the ire felt by the State is mere propaganda in light of the fact that these laws have been in existence elsewhere for some time. The principal legal argument in favor the law can be found here.

The law itself though tests the limits that previous versions have not. While it may be constitutional, it certainly is trying to push the envelope on the reach of free exercise of religion.

Addendum: Re-reviewing Section 9.

In light of some comments both received by email and online, it has been brought to my attention that Section 9 of IRFRA, was written so as to allow for the application of the law in a lawsuit without the intervention of the government agency who drafted the legislation or ordinance whose application would be limited by IRFRA. Some may be wondering why does this matter.

To begin, New Mexico’s version of Section 9 largely resembles those found in the other states that have a similar provision allowing for their respective religious freedom legislations to be applied as a defense in a judicial or administrative proceeding. “A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government agency . . .” NM ST § 28-22-1-4. The decision in Elane Photography, LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 757 (2014) stated that the government was a necessary party in order to be exempt from the law the religious freedom act. This rationale would likely apply to similarly drafted acts in the other states mentioned above.

As has been graciously pointed out to me, Section 9 as written in the IRFRA obviates the requirement that the government be a party to a proceeding.

By way of background, typically a challenge in the application of law is done by requesting declaratory relief at the state or federal level asking the court to clarify how and should to apply a certain law, given that the person making the request has standing (i.e. is affected by the law) to do so. Thus, the government agency may respond and take a position to articulate how its law should be applied. In the same vein, the government can defend the constitutionality of the law if that is raised in the lawsuit as well. The overall point is that the government who drafted the affected law has an opportunity to come in a defend its application.

This matters because Section 9 would allow a challenge to a law or ordinance between two parties without making the government a necessary party. To use a contemporary hypothetical, if a South Bend patron sued a hotel  for discriminatory treatment under South Bend’s human rights ordinance and the hotel claimed as a defense that it was asserting its religious right to refuse service to that patron, that lawsuit would typically and necessarily involve the City of South Bend as a party so it could advocate for or against the application of IRFRA to its local ordinance. And while a Court could not prevent the City from intervening in the case, my opinion is that the legislation would bypass the need to have South Bend in such a case to defend the application of its own ordinance.

This is but another way in how IRFRA is more broadly written than its federal and state predecessors. While I would agree with the notion that its not an outright license to discriminate in and of itself (a court ruling would have to decide that), it does allow the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate against those protected in Indiana by human rights ordinances.

Indiana version

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.Sec. 3. (a) The following definitions apply throughout this section:(1) “Establishment Clause” refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion.(2) “Granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

(b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause.

(c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, “governmental entity” includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following:

(1) State government.

(2) A political subdivision (as defined in IC 36-1-2-13).

(3) An instrumentality of a governmental entity described in

subdivision (1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, “person” includes the following:

(1) An individual.

(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:

(A) may sue and be sued; and

(B) exercises practices that are compelled or limited by a

system of religious belief held by:

(i) an individual; or

(ii) the individuals;

who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

(b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that:

(1) the person’s exercise of religion has been substantially burdened, or is likely to be substantially burdened; and

(2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person:

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest;

the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity.

(b) Relief against the governmental entity may include any of the following:

(1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter.

(2) Compensatory damages.

(c) In the appropriate case, the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney’s fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

Federal Law

Sec. 1(a) In generalGovernment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.(b) ExceptionGovernment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person–

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

Sec. 2

As used in this chapter–

(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity;

(2) the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

(3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and

(4) the term “exercise of religion” means religious exercise, as defined in section 2000cc-5 of this title.

Sec. 3

(a) In general

This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.

(b) Rule of construction

Federal statutory law adopted after November 16, 1993 is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

(c) Religious belief unaffected

Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

Sec. 4

Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

CoA affirms default judgment

CoA upheld a trial court’s default judgment where the defaulted party committed a series of errors over a period of months. The relevant timeline is as follows:

  • Oct. 23, 2012, Plaintiff files complaint
  • Oct. 27, 2012, Plaintiff personally serves Defendant, who lives across the hall from Plaintiff
  • Dec. 4, 2012, Plaintiff files motion for entry of default
  • Dec. 6, 2012 Defendant admits receiving this motion on this date
  • Dec. 10, 2012 Defendant writes letter to Trial Court requesting additional time to obtain counsel. Letter not received until one week later
  • Dec. 11, 2012 Plaintiff obtains default and matter is set for hearing on Feb. 19, 2013 to assess damages
  • Feb. 19, 2013, at hearing on damages,Defendant does not appear but Trial Court receives letter from him requesting continuance, which Trial Court grants with no further extensions of time
  • March 19, 2013, Defendant again does not appear and Court states it will grant default judgment of ~$40,000
  • After hearing, Trial Court receives letter from Defendant citing jury obligation and requesting another continuance
  • April 1, 2013, Trial Court confirms Defendant did not in fact have to report for jury duty and enters default judgment
  • April 3, 2013, Defendant appears by counsel and files vague motion to set aside one month later, which was denied

While the CoA acknowledged the policy of favoring trying cases on the merits, it could not ignore that Defendant failed to show excusable neglect. CoA further stated that a “lack of personal jurisdiction” argument, if made, would have fallen under Rule 60(B)(6) which was not cited by Defendant.

Ultimately, CoA affirmed default but the case is a rather extreme example of Defendant error in responding to a lawsuit and then asserting vague arguments in attempting to lift the default.

CoA: State had no authority to bring paternity action for stillborn baby

In what is an ultimately very sad case involving the stillborn birth of a baby to a barely teenage girl, the Court of Appeals found that neither the assignment of the matter to the State under Title IV-D of the Social Security Act or Indiana’s paternity statutes, provided an avenue for the State to bring an action to establish paternity. Here, the mother simply wanted to confirm who the father of her child was and was not seeking any other benefit or monetary amount.

Since Title IV-D’s purpose is to enforce support obligations and the paternity statutes are there to provide “proper care, maintenance, education, protection, support and opportunities” to the child, there was no interest or authority for the State to file an action for paternity. This did not mean, however, the mother could not do so on her own.

CoA affirms denial of summary judgment to lawyer in legal malpractice case

This matter stems from a legal malpractice claim against a criminal attorney and mainly involves the concept that professional negligence may be nullified if allowing a claim to proceed would allow one to profit from his or her own criminal acts. The CoA limited the application of this rule.

Here, “Beal [the attorney/defendant] represented Blinn [the client/plaintiff] in a federal criminal action, despite Beal’s limited experience with federal litigation, his unfamiliarity with the legal construction of a federal proffer session, its purpose and its consequences, and his failure to convey a request for further interviews as part of the proffer session to Blinn.” The resulting federal proffer session snafu led to Blinn’s plea deal being revoked and him subsequently receiving a worse deal later on through a different attorney.

In arguing for summary judgment, Beal relied on the case of Rimert v. Mortell, 680 N.E.2d 867 (Ind. Ct. App. 1997), trans. denied. In that case, a patient diagnosed as psychotic was discharged and went on to murder four people in South Carolina after which he was found guilty but mentally ill. His family then filed a claim for medical malpractice against the doctor who discharged him.

The Court of Appeals held in that case:

the rule against actions based upon or involving a plaintiff’s criminal act is correlative with Indiana’s public policy against permitting one to profit from his or her wrongdoing. Each embodies the principle that one who is responsible for the commission of a criminal or wrongful act must exclusively bear his or her share of the responsibility for the act, and may not evade that responsibility either through gaining some profit for the act or shifting liability for the act to another. We therefore hold it to be the public policy of this state that an individual who has been convicted of a crime should be precluded from imposing liability upon others, through a civil action, for the results of his or her own criminal conduct. Consequently, a person may not maintain an action if, in order to establish the cause of action, he or she must rely, in whole or in part, upon an illegal act or transaction to which he or she is a party or upon a violation by him or herself of the criminal laws.

Rimert, 680 NE 2d at 874.

The Court of Appeals distinguished Rimert from the instant matter in that the former held one could not essentially excuse his criminal acts (or profit thereform) by stating that the professional negligence caused or contributed to the criminal acts. Rather, when the alleged professional negligence occurred after the alleged criminal actions, as here, the policy was not applicable since it would in essence prevent any criminal defendant from maintaining a legal malpractice claim against his or her own attorney where the defendant was found or pleaded guilty.

Bad faith claim against insurer survives summary judgment in IN SD

This claim arises out of the somewhat famous “wave ahead” case of Key v. Hamilton, 963 NE 2d 573 (Ind. Ct. App. 2012). In that case, a driver of a stopped truck waved a motorcyclist ahead to pass him after checking for traffic, failing to see an oncoming vehicle, and the motorcycle collided with the oncoming vehicle.  The waving party was insured for $250,000 by American Family.

At trial, the injured party obtained a verdict for $990,00 against the waving party. American Family tendered its policy limits of $250,000 plus prejudgment interest. The driver subsequently filed for bankruptcy and the trustee filed suit for bad faith against American Family on behalf of the bankruptcy estate to recover for the excess judgment.

During the bad faith case, discovery showed that

American Family’s counsel evaluated the injured party’s claim at $110,000, but never offered the reserve amount of $100,000.00 during negotiations. Likewise, despite Mr. Hamilton’s demand that was equal to the policy limit, American Family still refused to pay this amount, even with knowing that Mr. Hamilton’s medical expenses alone were almost twice that amount. In addition, the Trustee presents evidence that American Family failed to fully investigate the claim or dispute Mr. Hamilton’s injuries.

Judge Tanya Walton Pratt, held that the evidence did justify summary judgment on the claim for punitive damages but that the evidence was not sufficient to grant summary judgment on the issue of bad faith. In so ruling, Judge Pratt cited that the duty of good faith forces the insurer to not only consider its monetary interests in deciding whether to settle, but also the risk that the insured will bear the risk of an excess verdict. Certain Underwriters of Lloyd’s v. GEN. ACC. INS., 909 F. 2d 228, 231-32 (7th Cir. 1990). Judge Pratt found that the question of whether the “gamble” is unreasonable under these circumstances is a question for the finder of fact.

UIM policy could be set off by Worker’s Compensation recovery, but not below state minimum

The CoA’s opinion is filed in the ever-expanding catalog of cases relating to under-insured motorist (“UIM”) coverage.

The issue is relevant in light of the Indiana Supreme Court’s recent ruling in Justice v. Am. Family Mut. Ins. Co., 4 N.E.3d 1171, 2014 Ind. LEXIS 196 (Ind. 2014). In fact, the Court of Appeals relies on that decision in reaching its conclusion here.

In this case, the spectacularly surnamed Christine Anderson was in a motor vehicle accident during the course of her employment. The at-fault driver had $25,000 in coverage, which was paid in full, and Anderson received $81,166.15 in worker’s compensation (“WC”) benefits since she was on the job. She had at the time a UIM policy with limits of $100,000. Thus, she sought $75,000 for the remaining UIM coverage.

Indiana Insurance argued that the UIM policy limit was set off by the WC benefit since it exceeded the $75,000 in remianing UIM coverage. This would mean that coverage would be reduced from the policy limits rather than the total damages (e.g. if Anderson had $300,000 in damages, she argues that the amount she received in WC benefits should be deducted from the $300 number instead of the $75K in coverage).

The Court of Appeals sided with Indiana Insurance on this point, holding that policies generally provide for when a setoff is to be made against damages rather than limits of liability and the use of the word damages in other areas of the policy is evidence that the insurer did not intend for the setoff to apply to damages if another word is used.

Paragraph E mentions “element of loss” and does not mention damages. Further, the portion of the Policy addressing underinsured motorists coverage uses the term “damages” on other occasions. Also, similar to Am. Econ., Paragraph E falls under the section titled “LIMIT OF LIABILITY.”  Unlike Tate, the Policy defines an “[u]nderinsured motor vehicle” as one for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is either: “1. Less than the limit of liability for this coverage; or 2. Reduced by payments to persons, other than ‘insureds’, injured in the accident to less than the limit of liability for this coverage.” Appellant’s Appendix at 163. Based upon Paragraph E, we cannot say that the trial court erred to the extent that it reduced the amount Anderson received from worker’s compensation from the Policy limit.

The Court of Appeals did however hold that under the recently published Justice case, the insurer could not apply WC benefits to reduce the UIM benefit below the state mandated minimum of $50,000.  In citing that case, the Court found the following language dispositive: “[i]f [the underinsured motorist] had carried the required amount of liability insurance, [the insured] would have received $50,000, and the purpose of our uninsured/underinsured motorist statute is to put him in that position.” 4 N.E.3d at 1179. Thus, no matter whatever the WC benefit Anderson received, she was entitled to $50,000 in UIM coverage.

Accordingly, the Court of Appeals upheld summary judgment by the trial court on the issue of the setoff but reversed summary judgment on the issue of the recoverable UIM benefit.

Estranged wife entitled only to 2.5% of husband’s lottery winnings

Married couple was physically separated in June, 2006. The husband then won $2,000,000 in the lottery in January, 2011 and coincidentally decided that a final divorce decree was long overdue. Trial Court found that wife was entitled to only 2.5%

Of note was that wife sent requests for admissions that husband did not answer. By these admissions, husband admitted that a 70/30 split to the wife was a just and equitable distribution. The Court of Appeals agreed, affirming that requests for admissions may be used to establish legal conclusions, but stated that husband only admitted that it was “a” just and equitable distribution and not “the only” such distribution. The trial court was still obligated to decide of the distribution was fair and reasonable. See Ind. Code § 31-15-7-5. In so holding, the Court noted: Discretion signifies choice, and a decision-maker exercising discretion has the ability to choose from a range of permissible conclusions. Johnson v. U. S., 398 A.2d 354, 361 (D.C. 1979).

7th Circuit reaffirms Wisconsin’s controversial Act 10 collective bargaining law as constitutional

Wisconsin’s Act 10 (Wis. Stat. § 66.0508) made significant changes to public employee unions in that it prohibited government employers from collectively bargaining with their general employees over anything except base wages, made it more challenging for general‐employee unions to obtain  certification  as  exclusive  bargaining  agents, and precluded  general‐employee unions from using  automatic  payroll deductions  and  fair‐share agreements.

The plaintiffs,  two  public‐employee  unions  and an individual union member, argue that these changes infringe their First Amendment petition and association rights. While one case already decided that the Act was constitutional (Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640 (7th Cir. 2013)), the plaintiffs pled other First Amendment and Equal Protection Clause theories unique to this case. The District Court dismissed the complaint pursuant to Fed. R. Civ. P. 12(c), granting judgment on the pleadings. Plaintiffs appealed.

The Court first had to determine how to interpret provision 1M of the Act (“Except as provided under subch. IV of ch. 111 [the amended, post–Act 10 MERA], no local governmental unit may collectively bargain with its employees”). Wisconsin surprisingly argued to the effect that provision 1m merely prohibited a local government from being “obligated” to negotiate with a labor union rather than preventing local governments from negotiating altogether outside of the issue of base wages. Were this the case, there would be no controversy. However, the 7th Circuit ultimately made its own interpretation of the provision since the Wisconsin Supreme Court had not yet done so despite several pending cases in the state. The 7th Circuit interpreted the provision “to prohibit municipal employers from reaching binding agreements with their general employees on a collective basis, if the agreement concerns anything other than the employees’ base wages.”

The Court then turned to the main arguments, which were threefold: 1) 1st Amendment – Petitions Clause; 2) 1st Amendment – Association; and 3) Equal Protection.

1.  Petitions Clause

The unions acknowledged the applicability of the Supreme Court case of Smith v. Highway Employees, 441 U.S. 463, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979) (per curiam). In that case, the Court ruled that simply because employees had unionized, the employer did not have to hear out what the union had to say (i.e., the right to free speech does not necessarily obligate the State to listen). More specifically, the State Highway Commission could hear grievances from individuals and choose not to hear the same from unions.

In the instant matter, the unions argued that the Act’s effect took it one step further in that it removes a government’s option of whether or not to listen to a union on any issue other than base wages. However, the 7th Circuit noted another Supreme Court case on point, Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 104 S. Ct. 1058, 79 L. Ed. 2d 299 (1984). In that case, the Supreme Court was faced with the issue where faculty instructors who did not wish to join the union serving as their bargaining representative argued that Minnesota’s “restriction on participation in the nonmandatory- subject exchange process” violated their First Amendment rights. Id. at 273. The Supreme Court upheld its application in Smith and held that there was “no constitutional right to force the government to listen to their views.” Id. at 283. Notably, the Knight Court and the 7th Circuit here underscored that there was nothing preventing less formalized meetings – just collective bargaining – and that some Wisconsin municipalities already had less formal meeting procedures with unions.

The 7th Circuit thus reaffirmed that there is no right to collectively bargain as it would in essence recognize a constitutional right to government policymaking. “Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices.” Knight, 465 U.S. at 284.

2.  Association

This portion was more straightforward since the 7th Circuit already held that nothing in the Act prevented unions from forming or associating. “An  organization  cannot  come  up  with  an  associational purpose—even a purpose that involves speech—and then require support from the  state in  order to realize its goal.”

3.  Equal Protection

Here, the unions argue that they are treated differently than the individuals who make up such unions in that local governments may negotiate with individual employees but not employee unions. Analyzing this argument under a rational basis lens, the unions would concede this point. However, they argued that the Act’s effect infringes upon rights to associate (the State’s favoring individuals over unions punishes the right to associate) and thus invokes strict scrutiny. The 7th Circuit repeated its position that the freedom to associate was not infringed upon and thus upheld the rational basis review.

What does it all mean? It is an interesting case since similar legislation may foreseeably be implemented in other States. It will also be interesting to see whether the Wisconsin Supreme Court interprets the statute differently or adopts the 7th Circuit’s approach, since that issue remains open. It seems reasonable that the fight over this will move there.

Bad faith finding reversed where there was no obligation to produce evidence detrimental to Plaintiff

At trial on a UIM claim, GEICO’s counsel found out days before the trial that one of the plaintiffs, a doctor, had been charged with obtaining controlled substances by fraud in Florida. The information was raised on cross examination of that plaintiff.  After a verdict for one of the other plaintiffs, plaintiffs moved for a finding of bad faith for not presenting the evidence before trial, pursuant to Ind. Code § 34-52-1-1. The trial court granted the motion and GEICO appealed.

The Court of Appeals reversed on the basis that there was no discovery request for the information compounded by the fact that the plaintiff doctor knew of the information and elected not to disclose it to his attorney.

Trial Court could not reserve issue of spousal maintenance after finding no evidence requiring it in final order

In a divorce case, the Trial Court found insufficient evidence so as to support a finding that Wife was entitled to maintenance (i.e. Indiana’s version of alimony). Wife later received ruling for Social Security appeal that she was in fact disabled and the Trial Court modified its final order.

The Court of Appeals disagreed with this approach, finding:

it is clear that a trial court is to determine whether a spouse is entitled to maintenance at the time the dissolution decree is entered. Ind. Code §§ 31-15-7-1, -2. Indiana Code Section 31-15-7-2(1) and (2) require the court to make certain findings, before it considers whether maintenance is necessary. The spouse seeking maintenance has the burden of proving that he or she is entitled to maintenance. Matzat v. Matzat, 854 N.E.2d 918, 921 (Ind. Ct. App. 2006). If, at the time of dissolution, the trial court finds that a spouse has not satisfied the statutory criteria entitling him or her to maintenance, then that is the end of the matter. The dissolution decree is final. Ind. Code § 31-15-2-16(b).

Appeal was not timely filed when movant did not properly seek additional time

Sometimes it is easier (and best) just to file a notice of appeal. After losing custody of his child by court order on January 17, 2013, the following timeline occurred:

  1. Petitioner timely filed his Motion to Correct Error on February 8, 2013.
  2. He then filed a motion for extension of time to file a memorandum of law until March 31, 2013, which the trial court granted.
  3. Petitioner timely filed his memorandum of law on April 1, 2013 (March 31 was a Sunday).
  4. Petitioner then filed his notice of appeal on May 30, 2013.
  5. Notably, petitioner never filed for an extension of time for a ruling.

Based on this timeline and facts, the Court of Appeals determined that the following timeline at law applied:

  1. Motion would have been deemed denied forty-five days after it was filed, i.e., on March 25, 2013.
  2. Pursuant to Trial Rule 53.3(D), the trial court had the power to extend its deadline for ruling only for an additional thirty days, i.e., until April 24, 2013.
  3. Thirty days thereafter, the notice of appeal was due (May 24, 2013).

Without filing for an additional time for a ruling to the Supreme Court under Rule 53.1(D), the Court of Appeals allowed for the maximum amount of time to file an appeal, which was May 24, 2013. Petitioner apparently thought he had thirty days from the date his motion was deemed denied in his eyes, which was around May 14, 2013.

Increased PCF payout dates bill sent to Gov. Pence

A bill that would increase the number of payouts per year by the Indiana Patients Compensation Fund from 2 times to 4 has made it from the General Assembly to Gov. Pence’s desk.  A copy of the bill is linked below for reference.

Senate Bill 56

Justice v. American Family Insurance

Indiana Supreme Court reversed grant of summary judgment to American Family and held that plaintiff is entitled to recover the remaining $25,000 from American Family under the terms of his underinsured motorist policy limit because the set-off using workers’ compensation benefits in his case would reduce the policy below the statutory minimum. The policy explicitly stated that wok comp benefits set-off reduced the limits of liability, and in this case would bring the policy limits below the statutory minimum.

Small claims judgment based entirely on hearsay did not violate due process

In a small claim collections case, plaintiff succeeded at trial even though it only submitted an unsworn letter from the creditor dentist. The defendant argued that this violated due process since he was not able to cross-examine the doctor. The Court of Appeals disagreed reasoning that the defendant could have issued a subpoena to ensure the doctor’s appearance at trial. This made the distinguishable from other cases where small claims courts wrongfully disallowed cross-examination of testifying witnesses.

Medical malpractice complaint deemed filed on date sent via FedEx

The Indiana Supreme Court reversed the Appellate Court’s holding that a medical malpractice complaint could only be deemed filed as of the date of mailing if, and only if, the complaint were sent out via registered or certified mail. This interpretation of Ind. Code § 34-18-7-3(b) excluded delivery services such as FedEx or UPS. Thus, a party filing a medical malpractice complaint via FedEx, as in this case, would have their complaint with the Dept. of Insurance deemed filed on the date of receipt by the DOI rather than the date it was sent out. Here, it meant the filing of the complaint occurred after the statute of limitations expired.

On a petition for rehearing (which was denied without any further opinion), the plaintiff raised for the first time that Ind. Code § 1-1-7-1(a) should control. That statute reads in relevant part:

If a statute enacted by the general assembly or a rule . . . requires that notice or other matter be given or sent by registered mail or certified mail, a person may use: (1) any service of the United States Postal Service [“USPS”] or any service of a designated private delivery service (as defined by the United States Internal Revenue Service) that: (A) tracks the delivery of mail; and (B) requires a signature upon delivery . . . .

Id. (emphasis added in opinion).

Thus, two issues were presented to the Court: 1) could the plaintiff raise this argument for the first time on rehearing, and 2) could the above statute control the application of Ind. Code  § 34-18-7-3(b). The Supreme Court answered both of these questions in the affirmative.

As to the first point, the Court observed: “The crucial factor, however, in determining whether [the plaintiff] may interject what appears to be a new issue into the appeal is whether [the defendant] had unequivocal notice of the existence of the issue and, therefore, had an opportunity to defend against it.” Hochstedler v. St. Joseph Cnty. Solid Waste Mgmt. Dist., 770 N.E.2d 910, 918 (Ind. Ct. App. 2002), trans. denied. The Court found that the issue of whether the complaint was timely filed was clearly conveyed at all levels and so defendants’ objection on this argument was overruled.

On the second, the Court focused on two portions of the statute: 1) that the med mal statute required delivery by registered or certified mail in order to deem a complaint filed; and 2) that the filing of the complaint fell under the “or other matter” provision.

In closing the Court emphasized that its opinion was an elevation of “form over substance” and observed that there really was no difference anyway between filing a complaint via FedEx or UPS overnight and doing so via registered or certified mail.

County’s decision not to retain highway supervisor was not subject to judicial review

Indiana Supreme Court holds that county’s vote not to retain supervisor and subsequent yay/nay vote to retain different supervisor were ministerial acts, and not quasi-judicial, and thus were not subject to judicial review.

The Court recited the four factors that would render an act judicial or quasi-judicial:

(1) the presence of the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues; and (4) the rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities. See Lincoln v. Bd. of Comm’rs of Tippecanoe Cnty., 510 N.E.2d 716 (Ind. Ct. App. 1987), abrogated in part on other grounds by McDillon v. N. Ind. Pub. Serv. Co., 841 N.E.2d 1148 (Ind. 2006).

Here, the Court found that there was “not a ‘determination of issues’ nor a ‘rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities.'” under Lincoln and therefore held that the decision was ministerial.

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