City Chapel Evangelical Free Inc. v. City of South Bend Ex Rel. Department of Redevelopment

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.