ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
James A. Masters Cheryl A. Greene
Hosinski & Devetski, P.C. City of South Bend
South Bend, Indiana South Bend, Indiana
In The
INDIANA SUPREME COURT
CITY CHAPEL EVANGELICAL FREE )
INC., a/k/a CITY CHAPEL EVANGELICAL )
FREE CHURCH )
Defendant-Appellant, )
)
v. ) No. 71S00-0008-CV-501
)
CITY OF SOUTH BEND, INDIANA )
On behalf of its Department of Redevelopment )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194
________________________________________________
Appeal from Interlocutory Order in Condemnation Proceedings
March 29, 2001
DICKSON, Justice
In this appeal, the defendant-appellant, City Chapel Evangelical Free
Inc., also known as City Chapel Evangelical Free Church (hereinafter "City
Chapel"), challenges a trial court's interlocutory order overruling its
objections[1] to proceedings to condemn real estate initiated by the
defendant-appellee, City of South Bend, Indiana (hereinafter "South Bend").
After this appeal was initiated, this Court granted transfer pursuant to
Ind.Appellate Rule 4(A)(9) upon the request of both parties and their
agreement that this appeal involves a substantial question of law of great
public importance and that an emergency exists for speedy determination.
City Chapel seeks a remand to the trial court for an evidentiary hearing on
its claims that South Bend's taking of its place of worship violates state
and federal constitutional provisions protecting rights of free exercise of
religious worship and assembly.[2]
The essential facts are not disputed. City Chapel, including its
sanctuary, religious ministry rooms, and administrative offices, is located
in a four-story brick building formerly used as a retail store. The
building is one of three buildings located in a quarter block area at the
corner of Jefferson Boulevard and Main Street that South Bend seeks to
acquire for redevelopment. City Chapel was founded in 1994 to open a
church and conduct a religious ministry in the downtown area of South Bend.
It has a congregation of approximately one hundred members. Since
acquiring the building in December, 1995, City Chapel has used it for twice-
a-week worship services, Sunday school, the pastor's office, and other
purposes of City Chapel's religious ministry. The building's upper floors
are used as a parking garage.
I. Indiana Constitution
City Chapel contends that the condemnation proceeding violates its
rights of free exercise of religious worship and assembly which are
protected by Sections 2, 3, and 4 of Article 1, the Bill of Rights, of the
Indiana Constitution, which provide as follows:
Section 2. All people shall be secured in the natural right to
worship ALMIGHTY GOD, according to the dictates of their own
consciences.
Section 3. No law shall, in any case whatever, control the free
exercise and enjoyment of religious opinions, or interfere with the
rights of conscience.
Section 4. No preference shall be given, by law, to any creed,
religious society, or mode of worship; and no person shall be
compelled to attend, erect, or support any place of worship, or to
maintain any ministry, against his consent.
City Chapel asserts that the "issue is whether the state can use its power
of eminent domain to take a church without a court conducting a hearing to
balance the competing interests of the state and the church." Appellant's
Br. at 8 (footnote omitted). Claiming that South Bend's condemnation
proceeding involves not "just a property interest in the church building. .
. . [but] infringes upon the congregation's use of the church building for
the free exercise of religious worship and assembly," City Chapel asserts
that the taking "will destroy the church." Id. at 8, 10. City Chapel
urges that, under the Indiana Constitution, South Bend cannot take City
Chapel's building without a hearing at which South Bend is required to
prove "that the need or benefit which occasions its use of [the] police
power [of eminent domain] outweighs the restrictions imposed on City
Chapel's fundamental rights of freedom of worship and assembly." Id. at 25-
26.
City Chapel contends that the Indiana Constitution protects core
constitutional values which South Bend may not materially burden. It
argues that the taking of its church building by condemnation would burden
its right to religious worship under Section 2 and its right to free
exercise and enjoyment of religious opinions under Section 3. It further
alleges that the rights guaranteed by Section 4 are burdened because South
Bend, by pursuing this action against City Chapel but permitting another
church located in a redevelopment district to remain, gives preference to a
religious society or mode of worship.
South Bend principally argues that the Indiana Constitution's
guarantees of religious protection should be equated with that provided in
the First Amendment of the United States Constitution and that, because
South Bend's condemnation action is religion-neutral, no balancing test and
thus no hearing is required. South Bend also urges that, even if Sections
2 and 3 of Article 1 of the Indiana Constitution provide religious
protections that exceed those of the First Amendment, they only apply to
the "personal devotional aspect of religion" and that the "incidental
relocation" of the City Chapel building does not interfere with these
rights. Appellee's Br. at 22. South Bend also asserts that the only
constitutional inhibition on the taking of private property for public use
is the requirement of just compensation.
When Indiana's present constitution was adopted in 1851, the framers
who drafted it and the voters who ratified it did not copy or paraphrase
the 1791 language of the federal First Amendment.[3] Instead, they adopted
seven separate and specific provisions, Sections 2 through 8 of Article 1,
relating to religion. Clearly, the religious liberty provisions of the
Indiana Constitution were not intended merely to mirror the federal First
Amendment.[4] We reject the contention that the Indiana Constitution's
guarantees of religious protection should be equated with those of its
federal counterpart and that federal jurisprudence therefore governs the
interpretation of our state guarantees.
While it prohibits government interference with religious liberty,
the Indiana Constitution also affirmatively recognizes the state's police
power. It declares that government is "instituted for [the People's]
peace, safety, and well-being." Ind. Const. art. 1, §1. The
Constitution's Preamble expressly declares its purposes to be "that justice
be established, public order maintained, and liberty perpetuated."
Although it does not expressly grant to the state the power of eminent
domain, the Indiana Constitution acknowledges this power by implication in
Article 1, Section 21, which provides in part that "No person's property
shall be taken by law, without just compensation; nor, except in case of
the State, without such compensation first assessed and tendered." In
today's case, this governmental police power of eminent domain challenges
the limitations on government in the religious liberty provisions.
The analysis is guided by Price v. State, 622 N.E.2d 954 (Ind. 1993),
in which Chief Justice Shepard explained:
[I]n Indiana the police power is limited by the existence of certain
preserves of human endeavor, typically denominated as interests not
'within the realm of the police power,' upon which the State must
tread lightly, if at all. Put another way, there is within each
provision of our Bill of Rights a cluster of essential values which
the legislature may qualify but not alienate. A right is
impermissibly alienated when the State materially burdens one of the
core values which it embodies.
Id. at 960 (citations omitted). Fifteen years earlier, our Court of
Appeals had similarly observed that "churches are subject to such
reasonable regulations as may be necessary to promote the public health,
safety, or general welfare," but that "[r]easonable restrictions, however,
are not tantamount to exclusion." Church of Christ v. Metropolitan Bd. of
Zoning App., 175 Ind. App. 346, 351, 371 N.E.2d 1331, 1334
(1978)(quotations marks and citations omitted). Holding that the Board
contravened Article 1 of the Indiana Constitution by excluding a church
from a residential area, the court declared:
Denial by the City of Indianapolis of the use of this residential
property for religious purposes presents the classic confrontation
between exercise of the police power and a fundamental constitutional
right. If the citizen fails to heed Wendell Phillip's admonition that
"Eternal vigilance is the price of liberty," encroaching government
may devour that fundamental right (and what is more fundamental than
freedom of religion, which is a vital part of freedom of thought?).
Wittingly or unwittingly, the City of Indianapolis has been guilty of
such an encroachment.
Id. at 349-50, 371 N.E.2d at 1334. As emphasized in Whittington v. State,
669 N.E.2d 1363 (Ind. 1996), "[t]he purpose of state power, then, is to
foster an atmosphere in which individuals can fully enjoy that measure of
freedom they have not delegated to government." Id. at 1368.
The underlying issue sought to be presented is thus whether South
Bend's proposed taking of City Chapel's building under the state's police
power of eminent domain is a prohibited material burden, in contrast to a
permissible qualification, upon the core values of the religious protection
clauses asserted by City Chapel. South Bend's condemnation proceedings
will amount to a material burden upon a core value "[i]f the right, as
impaired, would no longer serve the purpose for which it was designed."
Price, 622 N.E.2d at 960 n.7. The "material burden" analysis looks only to
the magnitude of the impairment and does not take into account the social
utility of the state action at issue. Id.
Our methodology for interpreting and applying provisions of the
Indiana Constitution is well established. It requires:
a search for the common understanding of both those who framed it and
those who ratified it. Furthermore, the intent of the framers of the
Constitution is paramount in determining the meaning of a provision.
In order to give life to their intended meaning, we examine the
language of the text in the context of the history surrounding its
drafting and ratification, the purpose and structure of our
constitution, and case law interpreting the specific provisions. In
construing the constitution, we look to the history of the times, and
examine the state of things existing when the constitution or any part
thereof was framed and adopted, to ascertain the old law, the
mischief, and the remedy. The language of each provision of the
Constitution must be treated with particular deference, as though
every word had been hammered into place.
McIntosh v. Melroe Co., 729 N.E.2d 972, 986 (Ind. 2000)(Dickson, J.,
dissenting)(quotations marks and citations omitted).
Sections 2, 3, and 4 of the 1851 Indiana Constitution's Bill of
Rights did not differ substantially from their predecessor provisions in
Indiana's first Constitution, adopted in 1816.[5] The remarks of the
delegates during the 1850-51 Constitutional Convention amplify our
understanding of the framers' purposes, but do not alter the literal
meaning of the text of these sections.
When the convention debated Section 2, it considered an amendment to
substitute "possess" for "be secured" in the phrase "All men shall be
secured in the natural and indefeasible right to worship . . .," the
language initially proposed by the committee on rights and privileges.
Journal of the Convention of the People of the State of Indiana at 165
(reprint 1936)(1851) [hereinafter Journal]. Defending the committee's
draft, its chairman, Robert Dale Owen, a delegate from Posey County,
asserted:
No legislature could ever refuse to secure to the people this right
without a manifest violation of the Constitution, . . . . We provide
here in our organic law that all men shall be secured in the right to
worship Almighty God, etc. We intended by this that they should be so
secured, and it will be the duty of the Legislature to enact such laws
as will prevent any and every religious society from being disturbed
in their worship.
Report of the Debates and Proceedings of the Convention for the Revision of
the Constitution of the State of Indiana 965 (reprint 1935)(1850)
[hereinafter Debates]. Likewise urging the use of "shall be secured" as
proposed by the committee, Delegate John B. Howe of LaGrange County
explained its meaning:
It means, that, inasmuch as all men have a right to worship God
according to their own creed, they shall be protected in that right .
. . . The object of the provision is, that the law should recognize
the right and protect it by proper legislation; that is all. It is
simply tying up the hands of the Legislature so that they cannot
decree otherwise.
Id. The convention retained the "shall be secured" language proposed by
the committee.
We find no evidence that the principal terms were understood by the
framers and ratifiers to have meanings contrary to present usage.
Contemporaneous with the convention, the word "secure" was defined as: "To
make certain, to put beyond hazard." Noah Webster, An American Dictionary
of the English Language 1000 (Mass., George & Charles Merriam 1856). The
word "worship" was defined to mean: "chiefly and eminently, the act of
paying divine honors to the Supreme Being; or the reverence and homage paid
to him in religious exercises consisting in adoration, confession, prayer,
thanksgiving, and the like. . . . To perform acts of adoration; to perform
religious service." Id. at 1273 (emphasis in original).
The delegates adopted Section 3 ("No law shall, in any case whatever,
control the free exercise and enjoyment of religious opinions, or interfere
with the rights of conscience.") without debate as proposed by the
committee on rights and privileges. While the convention discussions do
not assist us in interpreting this section, the text, however, is clear and
unequivocal. The inclusion of the phrase "in any case whatever"
demonstrates the framers' and ratifiers' intent to provide unrestrained
protection for the articulated values. Like Section 3, there is little
from the convention debates to amplify our understanding of the language of
Section 4 ("No preference shall be given, by law, to any creed, religious
society, or mode of worship; and no man shall be compelled to attend,
erect, or support, any place of worship, or to maintain any ministry,
against his consent." [6]). The text of Sections 2, 3, and 4 is thus our
primary source for discerning the common understanding of the framers and
ratifiers.
Asserting that the relocation of City Chapel's church does not
impinge upon City Chapel members' rights of conscience or ability to
worship according to the dictates of conscience, South Bend contends that
the Indiana Constitution's guarantees protect only the "personal devotional
aspect of religion." Appellee's Br. at 22. We understand this argument
essentially to urge that the core values of Sections 2 and 3 encompass only
the "personal devotional aspect" of worship.
At the time of the adoption of the religious liberty provisions of
the Indiana Constitution's Bill of Rights, religious worship and the
exercise of religious opinion was largely a collective activity, practiced
in diverse traditions by a variety of religious denominations. During the
years between its admission to statehood and the Constitutional Convention
of 1850-51, Indiana's population multiplied over fifteenfold. When the
Indiana territory conducted a special census in 1815 as a prerequisite to
petitioning for statehood, it had a population of 63,897. 1 Charles
Kettleborough, Constitution Making in Indiana 1780-1851 at 65 (1916). By
1850, the year before Indiana adopted its current constitution, the
population was 988,416. The Seventh Census of the United States: 1850 at
756 (1853). The influx of settlers into Indiana reflected the "whole range
of religious belief and practice," and "there was no religious unity from
the beginning and denominations had no restraints." L. C. Rudolph, Hoosier
Faiths at x (1995). While Christianity was the predominant faith, the
various denominations "engaged in flat-out, wide-open competition." Id.
By 1850, Indiana included a variety of religious communities, including
Methodist, Baptist, Presbyterian, Roman Catholic, Quaker, Lutheran, Jewish,
United Brethren, and Disciples of Christ. See generally James H. Madison,
The Indiana Way 98-104 (1986). Professor Madison also observes that many
Indiana residents at the time were unaffiliated with any religious
congregation, and notes that two of the delegates to the Indiana
Constitutional Convention, Robert Dale Owen and John Pettit, were
considered "freethinkers." Id. at 99. The framers' and ratifiers'
respect for the variety of religious opinions and practices is underscored
by their inclusion in the Bill of Rights of Section 7 ("No person shall be
rendered incompetent as a witness, in consequence of his opinions on
matters of religion.") and Section 8 ("The mode of administering an oath or
affirmation shall be such as may be most consistent with, and binding upon,
the conscience of the person, to whom such oath or affirmation may be
administered.").
Even by the time of Indiana's initial Constitution in 1816, religious
liberty provisions in other states were broadly construed. Between 1776
and 1780 eleven of the original states adopted new constitutions and by
1789, every state except Connecticut had adopted constitutional provisions
protecting religious freedom. See Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1455 (1990). The language used in these original free exercise
provisions "defined the scope of the free exercise right in terms of the
conscience of the individual believer and the actions that flow from that
conscience [and] [n]one of the provisions confined the protection to
beliefs and opinions . . . ." Id. at 1458-1459. Eight of the states
confined the protection of conduct to acts of "worship" in contrast to the
other states which used broader language such as "practice" (Maryland) and
"religious concernment" (Rhode Island). Id. at 1459-60. The term
"exercise" was defined in the relevant time period as connoting "action."
Id. at 1459.[7] As noted by South Bend,[8] Smith v. Pedigo, 145 Ind. 361,
33 N.E. 777 (1893), provides one of the earliest interpretations by the
Indiana Supreme Court of the Indiana Constitution's provisions concerning
religion. Although not directly pertinent to its holding in a case wherein
two doctrinally disagreeing factions of a single congregation sought sole
possession of the church building, the Court generally observed that the
religious liberty clauses "take away all power of the State to interfere
with religious beliefs" and that, "[i]n other words, the law allows every
one [sic] to believe as he pleases, and practice that belief so long as
that practice does not interfere with the equal rights of others." Id. at
365, 33 N.E. at 779. By observing that the provisions protect both
"belief" and "practice," the Pedigo court understood that the Constitution
guarantees more than just the "personal devotional aspect of religion" as
advanced by South Bend. Appellee's Br. at 22.
From the literal text of Sections 2 and 3, the discussions at the
Constitutional Convention, and the surrounding circumstances, we conclude
that the framers and ratifiers of the Indiana Constitution's religious
liberty clauses did not intend to afford only narrow protection for a
person's internal thoughts and private practices of religion and
conscience. By protecting the right to worship according to the dictates
of conscience and the rights freely to exercise religious opinion and to
act in accord with personal conscience, Sections 2 and 3 advance core
values that restrain government interference with the practice of religious
worship, both in private and in community with other persons.
As an additional argument, South Bend contends that the only
constitutional inhibition on the taking of private property for public use
is the requirement of just compensation. In Consumers' Gas Trust Co. v.
Harless, 131 Ind. 446, 29 N.E. 1062 (1892), this Court stated:
The right of eminent domain is limited only by the Constitution,
and the only limitation in this State is, that no man's property shall
be taken by law without just compensation; nor, except in case of the
State, without such compensation first assessed and tendered. Section
21, article 1, Constitution of the State.
It is to be exercised only when the public necessity or
convenience requires it, but when such necessity or convenience is
declared by the representative of the sovereign, the Legislature,
courts cannot question the wisdom of such declaration.
Id. at 451, 29 N.E. at 1063-64. However, in both Harless and Schnull v.
Indianapolis Union Ry. Co., 190 Ind. 572, 572, 131 N.E. 51, 52 (1921),
which reiterates this proposition, the issue was the "just compensation" to
be paid and the means by which it was tendered, not whether the state's
action was in potential conflict with a specific constitutional guarantee
of liberty. The language in Harless and Schnull does not authorize the
State to ignore other provisions of the constitution when acting pursuant
to its powers of eminent domain.
As the defendant in a condemnation proceeding, City Chapel is
expressly authorized to object on the grounds that South Bend "has no right
to exercise the power of eminent domain for the use sought, or for any
other reason disclosed in the complaint or set up in such objections."
Ind.Code § 32-11-1-5.[9] A condemnation defendant may seek judicial review
as to the legality of the proceedings and whether the condemning entity has
the legal authority and right to condemn. State ex rel. Ind. Dept. of
Conserv. v. Barber, 246 Ind. 30, 35-36, 200 N.E.2d 638, 641 (1964); City of
Evansville v. Reising, 547 N.E.2d 1106, 1111, 1114-15 (Ind. Ct. App. 1989).
We hold that City Chapel may present objections to the condemnation
proceeding on the basis of claimed violations of the state constitution.
As we held in Price, the police power of the State is limited and may
not materially burden one of the core values embodied within each provision
of the Bill of Rights of Indiana's Constitution. The power of eminent
domain is a police power subject to this limitation. In this case, because
South Bend seeks to take property the loss of which City Chapel claims will
materially burden its rights embodied in the core values of Sections 2, 3,
and 4 of Article 1 of the Indiana Constitution, City Chapel is entitled to
an opportunity to present this claim.
In City Chapel's challenge to South Bend's otherwise lawful
condemnation proceedings instituted pursuant to express statutory
authorization, the condemnation procedure will be presumed to be
constitutional; City Chapel must clearly overcome that presumption by a
contrary showing; and, as the challenging party, City Chapel bears the
burden of proof with all doubts to be resolved against it. See Boehm v.
Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996); State v. Hoovler, 668
N.E.2d 1229, 1232 (Ind. 1996).
City Chapel must establish its contention that the taking of its
church building by condemnation, under the circumstances presented in this
case, materially burdens its members' right to worship according to the
dictates of conscience, the right freely to exercise religious opinions and
rights of conscience, or the right to be free from a government preference
for a particular religious society or mode of worship. The effect of the
taking must constitute a material burden, not merely a permissible
qualification, upon the core values of the clauses asserted by City Chapel.
Price, 622 N.E.2d at 960. Considering only the magnitude of the
impairment and excluding any consideration for the social utility of the
proposed condemnation, the taking will constitute a material burden on a
core value only "[i]f the right, as impaired, would no longer serve the
purpose for which it was designed . . . ." Id. at 960 n.7. Although its
constitutional challenge carries a very substantial burden of proof, City
Chapel is entitled to an opportunity to present its claim for judicial
determination.
II. Federal Constitution
Distinct from City Chapel's claims under the Indiana Constitution, it
also claims that South Bend's taking of its church building violates its
rights to free exercise of religion and freedom of association[10] under
the First Amendment of the Constitution of the United States. As to this
Part II, only Justice Rucker has concurred, and this Part of the opinion
thus represents the view of only two justices. Although differing as to
rationale, Chief Justice Shepard, Justice Sullivan, and Justice Boehm
ultimately agree that City Chapel is not entitled to a hearing as to its
federal First Amendment claims.
City Chapel contends that the trial court erred in applying the
Supreme Court's decision in Employment Div., Dept. of Human Resources v.
Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), to find that
South Bend's use of statutory condemnation proceedings to take City
Chapel's church is a permissible use of religious-neutral laws of general
applicability, and that South Bend is not required to demonstrate a
compelling government interest. City Chapel argues that, because its First
Amendment claim is based on the Free Exercise Clause in conjunction with
the freedom of association, it falls within the "hybrid" claim exception
recognized under Smith. Because of this, City Chapel urges that South
Bend's taking of its church building is governed by the "compelling
interest" test enunciated in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct.
1790, 10 L.Ed.2d 965 (1963). City Chapel argues that it is entitled to a
hearing in which the court must determine whether South Bend meets this
burden of proof.
South Bend acknowledges the hybrid claim exception language in Smith,
but argues that the right to free exercise of religion and the right to
freedom of association for religious worship are not separate rights that
give rise to a hybrid claim, but rather are both encompassed in the same
right to the free exercise of religion. South Bend also argues that the
hybrid analysis exception has received much criticism and that cases
applying Smith have not treated free exercise and free association claims
as qualifying for the hybrid claim exception. South Bend asserts that
Indiana's eminent domain law is generally applicable and religion-neutral
and that an evidentiary hearing is unnecessary.
In the absence of the hybrid claim exception, the First Amendment's
protection of free exercise of religion is generally governed by the
proposition that a "law that is neutral and of general applicability need
not be justified by a compelling government interest even if the law has
the incidental effect of burdening a particular religious practice."
Church of the Lukumi Babalu Aye, Inc. v. City of Hiahleah, 508 U.S. 510,
531, 113 S.Ct. 2217, 2226, 124 L.Ed. 472, 489 (1993)(citing Smith, 494 U.S.
872, 110 S.Ct. 1595, 108 L.Ed.2d 876).
City Chapel's contention that it qualifies for the hybrid claim
exception is based on the following language in Smith:
The only decisions in which we have held that the First
Amendment bars application of a neutral, generally applicable law to
religiously motivated action have involved not the Free Exercise
Clause alone, but the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the
press, . . . . Some of our cases prohibiting compelled expression,
decided exclusively upon free speech grounds, have also involved
freedom of religion, . . . . And it is easy to envision a case in
which a challenge on freedom of association grounds would likewise be
reinforced by Free Exercise Clause concerns.
The present case does not present such a hybrid situation, but a
free exercise claim unconnected with any communicative activity or
parental right.
494 U.S. at 881-82, 110 S.Ct. at 1601-02, 108 L.Ed.2d at 887-88. Finding
that the facts presented did not present such a hybrid situation, the Smith
Court explained that there is "no contention that the [state] law
represents an attempt to regulate religious beliefs, the communication of
religious beliefs, or the raising of one's children in those beliefs . . .
." Id. at 882, 110 S.Ct. at 1602, 108 L.Ed.2d at 888.
In "envisioning" a case raising both freedom of association and free
exercise, the Smith Court directs us to Roberts v. United States Jaycees,
468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984): "'An individual's
freedom to speak, to worship, and to petition the government for redress of
grievances could not be vigorously protected from interference by the State
[if] a correlative freedom to engage in group effort toward those ends were
not also guaranteed.'" Smith 494 U. S. at 882, 110 S.Ct. at 1602, 108
L.Ed.2d at 888, (emphasis added)(quoting Roberts, 468 U.S. at 622, 104
S.Ct. at 3252, 82 L.Ed.2d at 474). In Roberts, this correlative freedom is
termed the right to associate for expressive purposes, 469 U.S. at 623, 104
S.Ct. at 3252, 82 L.Ed.2d at 475, and is "recognized [as] a right to
associate for the purpose of engaging in those activities protected by the
First Amendment–speech, assembly, petition for the redress of grievances,
and the exercise of religion." Id. at 618, 104 S.Ct. at 3249 82 L.Ed.2d at
471.
In the ten years since Smith, the Supreme Court has not again
addressed the hybrid claim issue except for Justice Kennedy's brief
observation that "[t]he only instances where a neutral, generally
applicable law had failed to pass muster, the Smith court noted, were cases
in which other constitutional protections were at stake." City of Boerne
v. Flores, 521 U.S. 507, 513-14, 117 S.Ct. 2157, 2161, 138 L.Ed.2d 624, 634
(1997). The issue has, however, received considerable attention in other
federal and state courts. Although arguably not uniformly construed and
applied, the hybrid claim exception has been acknowledged in all the
federal circuits.[11] State courts addressing the issue have also
acknowledged the legitimacy of hybrid claims.[12]
While acknowledging the potential of a hybrid right exception to the
general rule announced in Smith, South Bend maintains that freedom of
association to worship is a derivative right of the free exercise of
religion and not a separate or additional right that can be used to qualify
for the hybrid claim exception. It cites Salvation Army v. Dept. of Cmty.
Affairs, 919 F.2d 183 (3d Cir. 1990), in which he Third Circuit addressed a
freedom to associate for religious purposes claim by the Salvation Army as
justification for being exempt from reporting requirements. The court
agreed that the Salvation Army had a "constitutionally secured right to
associate for religious purposes," id. at 199, but found that this did not
entitle it to an exception from a neutral, generally applicable law because
the right to associate for religious purposes is derivative of the right to
free exercise. Id.
Smith itself instructs to the contrary by suggesting that the hybrid
claim exception may arise from correlative claims of freedom of association
and free exercise of religion. The right to freedom of expressive
association is the right to "associate with others, in pursuit of a wide
variety of political, social, economic, educational, religious, and
cultural ends." Roberts, 468 U.S. at 622, 104 S.Ct. 3252, 82 L.Ed.2d at
474. As noted above, in foreseeing a possible hybrid claim, Smith cites
specific language in Roberts that recognizes the freedom to engage in group
effort toward worship as an example of the right of expressive association.
Smith, 494 U.S. at 882, 110 S.Ct. at 1602, 108 L.Ed.2d at 888. No basis
is provided in Smith to hold that the hybrid claim exception is
disqualified when the expressive association claim is based on religious
expression. To the contrary, Smith thus suggests that correlative claims
based on the right to free exercise of religion and the right of expressive
association to worship exemplify the hybrid right exception. The Supreme
Court's creation and description of the exception, from which it has not
since retreated, cannot be ignored.
The trial court erred in denying a hearing on whether South Bend's
taking of City Chapel's church building presents a First Amendment
challenge on freedom of association grounds reinforced by Free Exercise
Clause concerns. In the event of a hearing, however, to qualify for the
this hybrid claim exception, City Chapel would have to demonstrate at the
hearing that South Bend's taking of its church building would both (1)
significantly affect or burden its members' right to expressive
association, see Boy Scouts of America v. Dale, 530 U.S. ---, ---, 120
S.Ct. 2446, 2452-53, 147 L.Ed.2d 554, 564-66 (2000), and (2) substantially
burden a religious practice, City of Boerne, 512 U.S. at 513, 117 S.Ct. at
2160-61, 138 L.Ed.2d at 634 (quoting Sherbert, 374 U.S. at 406, 83 S.Ct. at
1795, 10 L.Ed.2d at 972). If City Chapel were thus able to establish that
it qualified for the hybrid claim exception, South Bend's condemnation
proceedings would survive City Chapel's First Amendment challenge only if
South Bend satisfied the requirements in Sherbert that some compelling
government interest justifies the substantial infringement. Sherbert, 374
U.S. at 406, 83 S.Ct. at 1795, 10 L.Ed.2d at 972.
III. Conclusion
We reverse the trial court's order overruling City Chapel's
objections to condemnation based on religious liberty claims under the
Indiana Constitution and remand this cause for consideration of those
claims. As to City Chapel's claims under the First Amendment to the
Constitution of the United States, a majority of this Court consisting of
Chief Justice Shepard, Justice Sullivan, and Justice Boehm concludes that
the trial court did not err in overruling those objections without holding
a hearing.
This cause is remanded for a hearing on City Chapel's claims under
the Indiana Constitution. As to the denial of a hearing on the federal
First Amendment claims, the trial court is affirmed.
RUCKER, J., concurs. SHEPARD, C.J., concurs as to Part I but dissents
as to Part II, with separate opinion concurring and dissenting. SULLIVAN,
J., dissents, with separate opinion. BOEHM, J., dissents, with separate
opinion.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
James A. Masters Cheryl A. Greene
Hosinski & Devetski, P.C. City of South Bend
South Bend, Indiana South Bend, Indiana
IN THE
SUPREME COURT OF INDIANA
CITY CHAPEL EVANGELICAL FREE, )
INC., a/k/a CITY CHAPEL )
EVANGELICAL FREE CHURCH, )
)
Appellant (Defendant Below) )
)
v. )Cause No. 71S00-0008-CV-501
)
CITY OF SOUTH BEND, INDIANA )
On behalf of its Department of )
Redevelopment, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194
March 29, 2001
SHEPARD, Chief Justice, concurring and dissenting.
I join in Justice Dickson’s opinion insofar as it remands for an
evidentiary hearing on City Chapel’s claim that its rights under the
Indiana Constitution trump the eminent domain power of the City of South
Bend (though whether they actually do so is a question for some future
day).
As for City Chapel’s claim under the First Amendment, I am satisfied
that it does not constitute a “hybrid claim” of the sort envisioned by the
brief passage quoted by Justice Dickson from Employment Div. v. Smith, 494
U.S. 872, 881-82. Largely, I think Judge Walter Stapleton was right when
he observed for the Third Circuit that assembling for purposes of worship
is a derivative of free exercise of religion and, as a corporate exercise,
not entitled to a greater level of First Amendment protection than
individual exercise might command. Salvation Army v. Dept. of Community
Affairs, 919 F.2d 183, 199 (3rd Cir. 1990). I thus conclude that City
Chapel loses on its First Amendment claim, though for reasons different
from the ones identified by Justices Sullivan and Boehm.
Attorney for Appellant
James A. Masters
Nemeth, Feeney, Masters, Hosinski
& Devetski
South Bend, IN
Attorney for Appellee
Cheryl A. Greene
City of South Bend
South Bend, IN
IN THE
INDIANA SUPREME COURT
CITY CHAPEL EVANGELICAL FREE
INC., a/k/a CITY CHAPEL EVANGELICAL FREE CHURCH
Appellant (Defendant below),
v.
CITY OF SOUTH BEND, INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 71S00-0008-CV-501
)
)
)
)
)
)
)
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194
ON PETITION FOR INTERLOCUTORY APPEAL
March 29, 2001
SULLIVAN, Justice, dissenting.
When the City of South Bend attempted to use its eminent domain
powers to acquire City Chapel’s place of worship, City Chapel claimed that
this use of eminent domain violated City Chapel’s rights under the free
exercise of religion clauses of the Indiana and federal constitutions.[13]
City Chapel sought a hearing in the trial court on this claim. Finding no
hearing required, the trial court found that the city’s exercise of its
eminent domain power did not violate City Chapel’s rights under the free
exercise clauses.
In this appeal, City Chapel only asks us to order such a hearing.
On appeal, City Chapel says its rights under the free exercise clauses
were violated when the trial court did not grant it a hearing on its
claims. The opinions of Justice Dickson, Chief Justice Shepard, and
Justice Boehm each address City Chapel’s claims as such. To me, City
Chapel’s appellate claim and my colleagues’ analysis conflate two distinct
issues with constitutional significance. Whether City Chapel was entitled
to a hearing or not is an entirely separate issue from whether City
Chapel’s free exercise rights were violated by the city’s exercise of its
eminent domain powers.
I think this case should be analyzed in the following way. First, we
must answer as a matter of procedural law whether City Chapel was entitled
to a hearing. If we conclude that City Chapel was entitled to a hearing,
then I think that we must remand for such a hearing before we can reach the
constitutional issues. Put differently, either the constitutional claim is
ripe on the record for review – thereby invoking our power to say what the
law is – or the claim is not ripe for our adjudication.
There are many potential sources for a right to a hearing in this
case: the Indiana Trial Rules, the eminent domain statute, the due course
of law provision of the Indiana Constitution, and procedural due process
under the Fourteenth Amendment to the Federal Constitution, among others.
However, City Chapel has failed to assert adequately a right to a hearing
under any body of law. Instead, it skips the initial inquiry into the
propriety of a hearing and concentrates exclusively on its rights under the
free exercise clauses of the Indiana and federal constitutions.[14]
City Chapel also fails to set out what evidence would be offered on
remand that is not available in the record. City Chapel’s only reference
to what it would present at a hearing is contained in the following passage
in its reply brief:
City Chapel is prepared to present evidence to the trial court that,
in other redevelopment projects, the City of South Bend has not used
its condemnation powers to take a church located in the redevelopment
area. Instead the City of South Bend has allowed the church to remain
in the redeveloped area. In this case, the City of South Bend’s
condemnation action is specifically directed to City Chapel and its
mode of worship, because of its non-traditional style and location, in
violation of Article I, Section 4 of the Indiana Constitution.
Appellant’s Reply Br. at 28. However, this passage in the brief cites two
portions of the record where City Chapel’s attorney made this exact point
during oral argument to the trial court on the motion for an evidentiary
hearing. The attorney also argued that the church could not afford to move
to another location. While not technically “evidence,” City Chapel’s
uncontested assertions put these points in the record and before the trial
court.[15] Moreover, the lack of evidence to be gained by a hearing is put
into sharper focus by the fact that South Bend accepted City Chapel’s
depiction of the relevant facts on appeal. Appellee’s Br. at 3-4. Because
of this failure, it is difficult to see what additional benefits would be
had or interests served by remanding this case for an evidentiary hearing.
City Chapel’s only claim in this appeal is that it was entitled to an
evidentiary hearing. This case should have focused on the adequacy of City
Chapel’s assertion of such a right, not the free exercise of religion.
Because I believe that City Chapel has not adequately demonstrated a right
to an evidentiary hearing, I believe that my colleagues decide a series of
issues that we have not been asked to decide. We should not do so.
I would affirm the trial court.
ATTORNEY FOR APPELLANT
James A. Masters
South Bend, Indiana
ATTORNEY FOR APPELLEE
Cheryl A. Greene
South Bend, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
CITY CHAPEL EVANGELICAL )
FREE, INC., a/k/a CITY CHAPEL )
EVANGELICAL FREE CHURCH, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-0008-CV-501
CITY OF SOUTH BEND, INDIANA, )
On Behalf of its Department of )
Redevelopment, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable David T. Ready, Special Judge
Cause No. 71C01-0002-CP-00194
__________________________________________________________________
ON PETITION FOR INTERLOCUTORY APPEAL
__________________________________________________________________
March 29, 2001
BOEHM, Justice, dissenting.
I respectfully dissent. I agree with the majority’s conclusion that
the various provisions of the Indiana Constitution dealing with religion
prevent the State from imposing material burdens on the exercise of
religious practice. I agree that this protection extends beyond the
private devotion vel non of individuals and also includes the public and
group activities associated with religious practices. And I agree that
City Chapel is an organization whose activities seem to fall well within
those protections. Thus, I agree that it follows that the City of South
Bend, an arm of government, may not exercise its right of eminent domain in
such a way as to materially burden City Chapel’s religious activities.
I disagree, however, that City Chapel has presented a claim that
raises this issue. To quote from City Chapel’s brief, which in turn quotes
from its presentation to the trial court:
[I]f we have an evidentiary hearing, what [the trial court will hear
is] not just that this is an interference, this taking will destroy
City Chapel. . . [The congregation] specifically wanted to be in the
center of downtown, and specifically wanted to be in a visible site. .
. . we had some various attempts to see if we could find an alternate
location. [There will be] testimony that there are almost no
alternate locations for City Chapel either because of size or
location, but most importantly because of price. There simply is no
place else for them to go that we can find that they possibly can
afford. . . .
(Emphasis added.). There is no claim here that the site has an independent
religious significance. Cf. Pillar of Fire v. Denver Urban Renewal Auth.,
509 P.2d 1250, 1251-52 (Colo. 1973) (sect sought to enjoin a municipal
urban renewal agency from condemning a building said to be birthplace of
the Pillar of Fire denomination). Rather, City Chapel’s complaint is that
its mission will be materially burdened because it cannot find a home
consistent with its religious mission at a price it can afford. It seems
to me that the Indiana Constitution has taken care of this problem. In
addition to the provisions dealing with religious freedom, we also have
Article I, Section 21, which provides that no person’s property “shall be
taken by law, without just compensation.” In view of the provisions of the
Indiana Constitution cited by the majority, “just compensation” for a site
important to the free exercise of religion may require more than it
otherwise would.
No case has addressed the issue under our state constitutional takings
clause. In United States v. 564.54 Acres of Land, although the United
States Supreme Court rejected the condemnee’s claim in that case, the Court
recognized that in very unusual circumstances fair market value may not
constitute “just compensation” under the federal takings clause. 441 U.S.
506, 512-13 (1979) (“[W]hen market value has been too difficult to find, or
when its application would result in manifest injustice to owner or public,
courts have fashioned and applied other standards.” (citations omitted)).
Although that case involved a taking of property from a religious
organization, there was no claim that the free exercise of religion was
burdened. Rather, the claim was that the state should pay the cost of
developing a “functionally equivalent” substitute facility rather than fair
market value because the condemned property was exempt under grandfather
provisions from regulations that would impose significant costs on a new
facility. Id. at 508. This claim was rejected on the basis that the
condemnee would reap a windfall if it chose not to construct the new
facility (in that case a campground for children), id. at 515-16, and in
any event a new facility would place the condemnee in a better position
than before the taking of the older facility, id. at 517-18 (White, J.,
concurring).
Similarly, in State v. Lincoln Memory Gardens, Inc., 242 Ind. 206,
214, 177 N.E.2d 655, 659 (1961), this Court rejected the “principle of
substitution” as a means of compensation in a case not implicating free
exercise of religion. However, it is not entirely clear whether
substitution means (1) replacement cost or (2) the amount necessary to put
the condemnee in the same position as before the taking. The two are not
necessarily the same because the latter may be accomplished by giving the
condemnee a replica of the condemned asset, but may also be achieved by
providing a different asset of equivalent value. In any event, “just
compensation” is demanded by our constitution. In the overwhelming
majority of cases, fair market value will constitute “just compensation” to
the condemnee. Ordinarily, a claim of unique value to the owner will not
overcome that presumption. But where a taking is shown to infringe upon a
“core value,” I would conclude that “just compensation” under the Indiana
Constitution requires placing the owner in a substantially equivalent
position as before the taking.
Here, the contention is that City Chapel needs more than fair market
value to place it in the same position as before the taking—an operator of
a facility positioned to serve the constituency required by its religious
mission. If the trier of fact at the valuation stage agrees, this would
provide a basis for compensation above the amount the property would
command in the hands of a secular owner. But in my view, City Chapel has
not presented a claim that, if established, would stop the City’s
condemnation in its tracks. Rather, even assuming the Chapel can establish
what it claims, money, not a permanent barrier to downtown redevelopment,
is the cure.
If the City is willing to accept the risk that City Chapel can
establish that it requires more than the fair market value of the property
to permit City Chapel to replace the condemned facility in a location and
manner that are necessary to its religious mission, that is the City’s
decision. Fair market value is usually defined as the price upon which the
hypothetical willing buyer and willing seller can agree. Area Plan Comm’n
v. Major, 720 N.E.2d 391, 398 (Ind. Ct. App. 1999). But if this formula is
inadequate to avoid a material burden on the Chapel’s exercise of religion,
the City may have to pay more to achieve “just compensation” than it would
if it were condemning a secular site. Given the Chapel’s representation
that this is a dispute over money, not religious principle, even if the
Chapel proves all it claims, the solution is in dollars, not injunctive
relief. In short, I do not believe that the Chapel’s claim presents
anything to be heard as to the taking, although it may be highly relevant
to fixing the “just compensation” owed to the Chapel.
I agree with Justice Sullivan that the threshold issue is whether City
Chapel is entitled to a hearing at the taking stage of this eminent domain
proceeding. However, it seems to me that whether a hearing is required is
determined by the issues raised by City Chapel. If its claims, if proven,
would constitute a bar to the taking, it seems to me that City Chapel is
entitled to a hearing in which it has the opportunity to prove them, just
as any landowner may present the facts that support any legally recognized
defense to the taking. See Dohany v. Rogers, 281 U.S. 362, 369 (1930)
(“[The] requirements [of due process] are satisfied if he has reasonable
notice and reasonable opportunity to be heard and to present his claim or
defense [to the taking].”); Derloshon v. City of Fort Wayne ex. rel. Dep’t
of Redevelopment, 250 Ind. 163, 171-72, 234 N.E.2d 269, 273-74 (1968) (“At
some place in the [eminent domain] proceedings, and by some method the
landowner is entitled to contest the legality of the condemnation
proceedings, and question the authority under which the attempt is being
made to take his property . . . .”) (quoting Cemetery Co. v. Warren Sch.
Township, 236 Ind. 171, 178, 139 N.E.2d 538, 541 (1957) (citations
omitted)).[16] Because I do not believe City Chapel has presented a claim
that bars the taking, I believe no hearing is required. But if such a
claim had been raised, I would agree that City Chapel would be entitled to
its day in court to present its proof.
Finally, I agree with Chief Justice Shepard that a “hybrid” claim
requires at least something more than collective religious exercise to add
a right of association to the religious exercise rights of the
complainants. For the reasons given above, however, I disagree that under
the state constitution a hearing is required on the taking as opposed to
the compensation phase of the City’s exercise of its right of eminent
domain.
-----------------------
[1] Pursuant to Ind.Code § 32-11-1-5, a defendant in a condemnation
action "may object to such proceedings on the grounds that the court has no
jurisdiction either of the subject-matter or of the person, or that the
plaintiff has no right to exercise the power of eminent domain for the use
sought, or for any other reason disclosed in the complaint or set up in
such objections." In the event such objections are overruled, such
defendant may initiate an immediate appeal. Id.
[2] Noting that City Chapel's objections included claims that the
proceedings violated Article 1 of the Indiana Constitution and the Free
Exercise Clause of the First Amendment of the United States Constitution,
the trial court ruled that City Chapel "is not entitled to an evidentiary
hearing on its constitutional challenges to the taking." Record at 108.
The court's ruling was based on its conclusion that "the Indiana eminent
domain laws pursuant to which the City of South Bend seeks to take City
Chapel's property are religious-neutral laws of general applicability and
that the city is not required to demonstrate a compelling government
interest." Id.
[3] The First Amendment provides in relevant part: "Congress shall
make no law respecting an establishment of religion, or prohibiting the
free exercise thereof. . . ." U.S. Const. amend. I.
[4] We observe further that Article 1, Section 5 of the Indiana
Constitution ("No religious test shall be required as a qualification for
any office of trust or profit") is similar but not identical to its federal
counterpart in Article 6 of the United States Constitution ("no religious
test shall ever be required as a qualification to any office or public
trust under the United States").
[5] Compare Ind. Const. art. 1, § 2 (1851)("All men shall be secured
in the natural right to worship ALMIGHTY GOD, according to the dictates of
their own consciences."), with Ind. Const. of 1816 art. I, § 3 ("That all
men have a natural and indefeasible right to worship Almighty God,
according to the dictates of their own consciences"); compare Ind. Const.
art. 1, § 3 (1851)("No law shall, in any case whatever, control the free
exercise and enjoyment of religious opinions, or interfere with the rights
of conscience."), with Ind. Const. of 1816 art. I, § 3 ("That no human
authority can, in any case whatever, control or interfere with the rights
of conscience"); compare Ind. Const. art. 1, § 4 (1851)("No preference
shall be given, by law, to any creed, religious society, or mode of
worship; . . . "), with Ind. Const. of 1816 art. I, § 3 ("no preference
shall ever be given by law to any religious societies, or modes of worship;
. . .").
[6] As originally drafted and proposed by the committee on rights and
privileges, the section included the phrase "No discrimination shall be
made by law between religious societies, nor preference be given by law to
any mode of worship." Journal at 166. The present language, drawn from
the original 1816 Constitution, resulted from an amendment offered by
Delegate John S. Newman of Wayne County. Id. at 349. This change is not
significant to the issue before us.
[7] The American Edition of Samuel Johnson's A Dictionary of the
English Language (Phila. 1805) defined "exercise" as "labour of the body,"
"use; actual application of any thing," "task; that which one is appointed
to perform," and "Act of divine worship whether public or private." Id.
[8] Appellee's Notice of Add'l Authorities at 2.
[9] The objection filed by City Chapel alleged in part that South
Bend's attempt to take City Chapel's property by condemnation "is an
unconstitutional interference" with City Chapel's religious freedom rights
under the First Amendment to the United States Constitution and under
Article 1 of the Indiana Constitution. Record at 28-29.
[10] City Chapel refers to this claim in various ways, e.g. the right
to assemble for worship, the right of assembly, and the freedom of
association. Noting this variation, South Bend interprets and addresses
the claim as one of freedom of association. Appellee's Br. at 13 n.8.
City Chapel confirms this understanding. Appellant's Reply Br. at 1.
[11] First Circuit: Brown v. Hot, Sexy, & Safer Prod., Inc., 68 F.3d
525 (1st Cir. 1995) (recognizing hybrid claim of free exercise in
conjunction with parental right to direct upbringing of children but
finding state action was a one-time occurrence and not affecting entire way
of life); Second Circuit: Krafchow v. Town of Woodstock, 62 F.Supp.2d 698
(N.D.N.Y. 1999)(recognizing hybrid claim of free exercise and free speech
and applying compelling interest test, but finding that plaintiff did not
prove substantial interference with belief); Third Circuit: Salvation Army
v. Dept. of Cmty. Affairs, 919 F.2d 183 (3d Cir. 1990)(acknowledging
plaintiff's hybrid claim of free exercise and freedom to associate for
religious purposes but rejecting claim on grounds that the alleged
association right is derivative of the free exercise right); Fourth
Circuit: Reich v. Shiloh True Light Church of Christ, No. 95-2765, 1996 WL
228802 (4th Cir. May 7, 1996)(per curiam)(recognizing hybrid right of free
exercise and parental right and applying compelling interest test, but
finding claim fails); Hicks ex. rel. Hicks v. Halifax County Bd. of Educ.,
93 F.Supp.2d 649 (E.D.N.C. 1999)(recognizing hybrid claim of free exercise
and parental right to direct upbringing of child); Isaacs ex. rel. Isaacs
v. Board of Educ., 40 F.Supp.2d 335 (D.Md. 1999)(recognizing existence of
hybrid claims); Fifth Circuit: Chalifoux v. New Caney Indep. Sch. Dist.,
976 F.Supp. 659 (S.D.Tex. 1997)(finding First Amendment violation by school
dress code as hybrid claim of free speech and free exercise); Sixth
Circuit: Vandiver v. Hardin County Bd. of Educ., 925 F.2d 927 (6th Cir.
1991)(recognizing hybrid right analysis, but requiring that companion right
be a cognizable constitutional right); but see Kissinger v. Bd. of
Trustees, 3 F.3d 177, 180 (6th Cir. 1993)(declining to recognize hybrid
claim exception until clarified by Supreme Court); Seventh Circuit:
Hinrichs v. Whitburn, 772 F.Supp. 423 (W.D. Wis. 1991)(acknowledging hybrid
claim of free exercise and parental direction but finding issue not ripe),
aff'd 975 F.2d 1329 (7th Cir. 1992); Eight Circuit: Cornerstone Bible
Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991) (recognizing
hybrid rights claim in zoning case); Ninth Circuit: Miller v. Reed, 176
F.3d 1202 (9th Cir. 1999)(recognizing hybrid claim jurisprudence but
holding that companion claim must be a violation of a fundamental right);
American Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405 (9th Cir.
1991)(acknowledging hybrid claim of free exercise and "right to employ" but
finding "right to employ" neither expressly protected by the Constitution
nor a firmly recognized substantive due process right); Tenth Circuit:
Swanson ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694
(10th Cir. 1998)(recognizing hybrid claim exception but finding that claim
of free exercise and parental right fails because claim of parental right
to direct school curricula does not present a colorable claim), Thiry v.
Carlson, 78 F.3d 1491 (10th Cir. 1996)(acknowledging hybrid claim exception
but finding no infringement of proposed liberty interests of family unity
and integrity); D.C. Circuit: EEOC v. Catholic University of America, 83
F.3d 455 (D.C. Cir. 1996)(acknowledging hybrid claim raised as defense to
sex discrimination suit filed against religious high school but deciding
case on ministerial exception alone).
[12] Hill-Murray Fed. of Teachers v. Hill-Murray High Sch., 487 N.W.2d
857 (Minn. 1992)(recognizing hybrid situation language but finding no
applicability to these facts, but retaining compelling state interest
balancing test under state constitution); Health Serv. Div. v. Temple
Baptist Church, 814 P.2d 130 (N.M. Ct. App. 1991)(acknowledging hybrid
rights language, but finding no exception to Smith's holding as Church
could not assert parental right to direct children's education); New York
State Emp. Rel. Bd. v. Christ the King Reg'l High Sch., 682 N.E.2d 960
(N.Y. 1997)(acknowledging hybrid claim language, but finding it
inapplicable where school asserting parental rights); First United
Methodist Church of Seattle v. Hearing Examiner for Seattle Landmarks Pres.
Bd., 916 P.2d 374 (Wash. 1996)(recognizing hybrid rights exception where
church claimed infringement of free exercise and free speech); First
Covenant Church of Seattle v. City of Seattle, 840 P.2d 174 (Wash.
1992)(accepting hybrid claim of free exercise and free speech).
[13] U.S. Const. amend. I (“Congress shall make no law … prohibiting
the free exercise [of religion]”); Ind. Const. art. I, §§ 2, 3, 5, and 7.
[14] Essentially, City Chapel asserts a right – free exercise of
religion – and seeks a procedure for vindicating that right – an
evidentiary hearing – without any discussion of the propriety of that form
of vindication. Its lengthy discussion of the underlying constitutional
issues does not illuminate the necessary step of determining the efficacy
of an evidentiary hearing in this context.
[15] This deficiency in City Chapel’s argument must also be viewed
through the procedural posture of the case. The trial court initially
granted City Chapel’s request for a hearing. After hearing oral argument
on purely legal grounds, the trial court changed course and denied the
hearing. This denial was based on South Bend’s constitutional arguments,
which means that the trial court implicitly determined that as a matter of
law City Chapel could present no evidence that would override South Bend’s
power to condemn the building. We review such legal determinations de
novo. See Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000) (“[W]here the
issue presented on appeal is a pure question of law, we review the matter
de novo.”). Under our de novo standard of review, we must view the record
in the light most favorable to City Chapel. Cf. Schulz v. State, 731
N.E.2d 1041, 1043-44 (Ind. Ct. App. 2000) (holding that under de novo
review of a motion to dismiss, court must “evaluate the [facts] in the
light most favorable to the plaintiff with every inference in [its]
favor.”), transfer denied. Because we may presume the facts that City
Chapel has adequately asserted in its objections and at oral argument
before the trial court, a hearing would not bring to light any information
not already presented in the record.
[16] In Dohany, the landowner challenged the taking under a statute
that he claimed provided for a process that fell below federal due process
requirements. 281 U.S. at 366-67. In Derloshon, the landowner argued that
he was denied due process when he was not given a hearing on his claim that
the taking was for a private rather than a public purpose. This Court
reversed and directed the trial court to hold a hearing. 250 Ind. at 165-
66, 175, 234 N.E.2d at 270, 276.