Keller J. Mellowitz v. Ball State University

IN THE

Indiana Supreme Court

Supreme Court Case No. 23S‐PL‐60 FILED

Nov 21 2023, 4:14 pm

Keller J. Mellowitz, CLERK

Indiana Supreme Court

Court of Appeals

Appellant, and Tax Court

–v–

Ball State University and Board of Trustees of

Ball State University,

Appellees,

and

State of Indiana,

Appellee‐Intervenor.

Argued: April 11, 2023 | Decided: November 21, 2023

Interlocutory Appeal from the Marion Superior Court

No. 49D01‐2005‐PL‐15026

The Honorable Matthew C. Kincaid, Special Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 22A‐PL‐337

Opinion by Justice Molter

Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.

Molter, Justice.

After Ball State University switched to providing only online

instruction for the 2020 spring semester due to the COVID‐19 pandemic,

Plaintiff Keller Mellowitz sued the university for breach of contract and

unjust enrichment. He seeks to recover tuition and fees for in‐person

instruction and services he alleges the university promised him. Critical

here, he wants to litigate his claims as a class action, representing similarly

situated students to recover their tuition and fees too. But after he sued,

the General Assembly passed, and Governor Holcomb signed, Public Law

No. 166‐2021, which, retroactive to March 1, 2020, prohibits class action

lawsuits against postsecondary educational institutions for contract or

unjust enrichment claims to recover losses stemming from COVID‐19.

Based on that law, the trial court entered an order directing that while

Mellowitz may pursue his claims against Ball State on his own behalf, he

may not pursue a class action on behalf of other students. Through an

interlocutory appeal of that order, the Court of Appeals reversed, agreeing

with Mellowitz that the class action restriction was unconstitutional. We

granted transfer, vacating the Court of Appeals opinion, and we now

affirm the trial court’s order.

First, we conclude the law does not violate the constitutional separation

of powers because its limited scope (applying only to a narrow category of

claims arising from COVID‐19 against a defined group of defendants

during a narrow period of time) reflects that it predominantly furthers a

public policy objective—reducing postsecondary educational institutions’

litigation exposure for their emergency responses to the pandemic—rather

than a judicial administration objective. Second, the law does not

unconstitutionally take Mellowitz’s property without just compensation

because he has no property right to sue on behalf of others through a class

action. And finally, the law does not unconstitutionally impair

Mellowitz’s contract with Ball State because the General Assembly did not

relieve Ball State of any of its contractual obligations to Mellowitz, which

is why the trial court is permitting him to pursue his individual claims

against the university.

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 2 of 22

Facts and Procedural History

In the spring of 2020, Mellowitz was a student at Ball State University

who had paid tuition along with mandatory fees for student services,

university technology, student recreation, student health, and student

transportation. About midway through the semester, on March 6,

Governor Holcomb issued Executive Order 20‐02 declaring that the rapid

COVID‐19 spread was a public health emergency. The pandemic response

at all levels of government quickly ratcheted up, and just a few weeks

later, the Governor issued Executive Order 20‐08, which, among many

other things, ordered individuals to remain at home with limited

exceptions and ordered non‐essential businesses to close. Educational

institutions like Ball State were permitted to continue educating students,

but only through distance education. Ball State complied with the

Governor’s order by canceling all in‐person classes, closing campus

facilities, and sending students home.

As the spring semester concluded, Mellowitz sued Ball State and its

board of trustees on May 1, claiming they breached a contract to provide

him in‐person rather than online instruction, and even if they did not

breach a contract, they were at least unjustly enriched by retaining tuition

and fees for services they stopped providing. He requested “recovery of

tuition and fees,” and he sought to represent a class of similarly situated

students. App. at 22.

Roughly a year later, on April 29, 2021, the Governor signed Public Law

No. 166‐2021, which was retroactive to March 1, 2020. One provision in

that law, codified as Indiana Code section 34‐12‐5‐7 (“Section 7”),

prohibits class actions against covered entities, like Ball State, for breach of

contract or unjust enrichment claims for losses arising from COVID‐19.

Ind. Code §§ 34‐12‐5‐5, ‐7. Based on this new law, Ball State sought to

preclude Mellowitz from suing on behalf of other students by filing a

motion under Indiana Trial Rule 23(D)(4), which authorizes courts to enter

an order “requiring that the pleadings be amended to eliminate therefrom

allegations as to representation of absent persons, and that the action

proceed accordingly.”

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 3 of 22

Mellowitz argued the trial court should deny the motion because

Section 7 is unconstitutional either because it is a procedural law

improperly usurping the judicial power, it takes his property without just

compensation, or it impairs his contract with Ball State. The Attorney

General intervened to defend the constitutionality of the statute, and after

a hearing, the trial court granted Ball State’s motion, rejecting Mellowitz’s

arguments. The court ordered Mellowitz to file an amended complaint

removing any allegations related to other class members, and it denied

class certification. Mellowitz then moved to certify the trial court’s ruling

for interlocutory appeal, which the court granted.

Mellowitz appealed, and the Court of Appeals reversed the trial court’s

order, agreeing with Mellowitz that Section 7 was a procedural statute

conflicting with Trial Rule 23 and therefore a nullity. Mellowitz v. Ball State

Univ., 196 N.E.3d 1256, 1257–58 (Ind. Ct. App. 2022). Ball State and the

State then separately petitioned for transfer, which we granted, 205 N.E.3d

196 (Ind. 2023), thus vacating the Court of Appeals opinion, Ind. Appellate

Rule 58(A).1

Appellate Jurisdiction

Before turning to the issues on appeal, we begin by clarifying the basis

for our appellate jurisdiction. Appellate Rule 14(C) provides a procedure

for interlocutory review of orders granting or denying class certification.

But Mellowitz never moved for class certification and the trial court’s

order was a Trial Rule 23(D)(4) order to amend the complaint to remove

class allegations, so the parties were unsure of the proper procedural

route for interlocutory review, and there is no case law from our Court or

the Court of Appeals providing guidance.

Given the uncertainty, Mellowitz prudently covered all the bases by

filing a Notice of Appeal for an Appellate Rule 14(A)(2) interlocutory

1We held oral argument at the University of Indianapolis. We thank the university for its

outstanding hospitality, the attorneys for their excellent advocacy, and the students and other

guests for their courtesy and insightful questions following the argument.

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 4 of 22

appeal as of right from an order compelling the execution of a document

(i.e., signing the amended complaint pursuant to Trial Rule 11(A)); by

requesting trial court certification and Court of Appeals acceptance of an

Appellate Rule 14(B) discretionary interlocutory appeal; and by

requesting that the Court of Appeals accept an Appellate Rule 14(C)

interlocutory appeal from an order denying class certification. The Court

of Appeals then entered an order concluding Appellate Rule 14(A)(2) does

not apply because the trial court order did not carry financial or legal

consequences akin to a final judgment, but either Appellate Rule 14(B) or

14(C) would suffice for appellate jurisdiction.

Because the trial court certified its order for interlocutory review, it

makes no difference in this case, but the distinction between Appellate

Rule 14(B) and Appellate Rule 14(C) can be critical—Appellate Rule 14(B)

requires trial court certification for interlocutory review and Appellate

Rule 14(C) does not. We therefore clarify that because a Trial Rule 23(D)(4)

order to amend a complaint to remove class allegations is the functional

equivalent of an order denying class certification, Appellate Rule 14(C),

which provides for interlocutory review of orders granting or denying

class certification, is the appropriate avenue for interlocutory review. Cf.

Microsoft Corp. v. Baker, 582 U.S. 23, 34 n.7 (2017) (“An order striking class

allegations is functionally equivalent to an order denying class

certification and therefore appealable under Rule 23(f).” (cleaned up)).

Standard of Review

This appeal concerns only the interpretation and constitutionality of a

statute, which are questions we consider de novo. State v. S.T., 82 N.E.3d

257, 259 (Ind. 2017) (constitutionality of statutes); State v. Int’l Bus.

Machines Corp., 964 N.E.2d 206, 209 (Ind. 2012) (interpretation of statutes).

Discussion and Decision

Mellowitz raises three issues on appeal. First, he argues Section 7 runs

afoul of the constitutional separation of powers because it limits class

actions, which he contends is the prerogative of the judiciary, not the

legislature. As we explain below, our recent decision in Church v. State, 189

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 5 of 22

N.E.3d 580, 590 (Ind. 2022), forecloses this argument because the statute

predominantly furthers a public policy objective rather than a judicial

administration objective.

Second, Mellowitz argues that retroactively applying the statute to his

claim has the effect of taking his property without just compensation in

violation of the state and federal constitutions because the statute

eliminates his cause of action. We conclude the trial court was correct to

reject this argument because Mellowitz’s cause of action is for breach of

contract and unjust enrichment, and the trial court is permitting him to

continue pursuing those claims. Mellowitz has no property right to sue on

behalf of others through a class action.

Third, Mellowitz argues the statute impairs his contract with Ball State,

again in violation of the state and federal constitutions. This argument

fairs no better because the General Assembly did not relieve Ball State of

any contractual obligations to Mellowitz, and, again, the trial court is

permitting Mellowitz to pursue his individual claims against the

university.

Because the trial court correctly concluded the statute is constitutional

and precludes a class action in this case, we affirm.

I. Shielding postsecondary educational institutions

from pandemic‐related class action claims is

within the General Assembly’s legislative

authority.

Although Mellowitz can sue Ball State to recoup his own tuition and

fees, the trial court concluded Section 7 bars him from maintaining a class

action to recover tuition and fees on behalf of other students. Section 7

says: “A claimant may not bring, and a court may not certify, a class

action lawsuit against a covered entity for loss or damages arising from

COVID‐19 in a contract, implied contract, quasi‐contract, or unjust

enrichment claim.” I.C. § 34‐12‐5‐7. Mellowitz concedes the statute fits this

case because Ball State is a covered entity and he is suing for breach of

contract and unjust enrichment to recover damages arising from COVID‐

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 6 of 22

19.2 But he argues the trial court should have disregarded the statute

because he contends it is unconstitutional. As he sees it, our Court

promulgated Trial Rule 23 to govern which lawsuits may proceed as class

actions, and Section 7 forbids even class actions that satisfy the rule’s

requirements. Because promulgating rules governing procedure in trial

courts is within our domain, Mellowitz argues the legislature

unconstitutionally usurped our judicial power when it enacted Section 7.

We instead share the trial court’s view that the statute is constitutional.

Without running afoul of our Indiana Constitution’s separation of powers,

our judiciary may accommodate statutes altering judicial processes when

the statutes predominantly further public policy objectives rather than

judicial administration objectives, so long as the statutes do not

undermine the truth‐seeking function of litigation, and they do not

otherwise interfere with the judiciary’s ability to fulfill its constitutional

obligations. Recently, in Church, 189 N.E.3d at 590, we announced a new

framework for this analysis of whether a statute reflects a valid legislative

enactment or the usurpation of judicial power. And under that

framework, we conclude Section 7 is a valid legislative enactment.

A. Our Constitution generally precludes the legislature

from micromanaging court procedures.

The Indiana Constitution vests the General Assembly with the

“[l]egislative authority,” Ind. Const. art. 4, § 1, vests our state courts with

the “judicial power,” id. art. 7, § 1, and instructs that neither independent

branch “shall exercise any of the functions” of the other. Id. art. 3, § 1.

Enacting laws to protect Hoosiers’ “‘peace, safety, and well‐being’” is a

legislative function. Whittington v. State, 669 N.E.2d 1363, 1369 n.6 (Ind.

1996) (quoting Ind. Const. art. 1, § 1). And promulgating procedural rules

for litigating disputes about those laws is part of the judicial function.

2“Covered entity” is a statutorily defined term that includes “an approved postsecondary

educational institution,” Ind. Code § 34‐12‐5‐5(2), and “arising from COVID‐19” is a defined

term that includes “the implementation of policies and procedures to . . . prevent or minimize

the spread of COVID‐19,” id. § 34‐6‐2‐10.4(c)(1)(A); see also id. § 34‐12‐5‐3.

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 7 of 22

State ex rel. Bicanic v. Lake Cir. Ct., 260 Ind. 73, 76, 292 N.E.2d 596, 598

(1973) (“The Supreme Court has the inherent power to create rules of

procedure and [that] right has been recognized by the Indiana General

Assembly.”).

Generally speaking, laws which establish rights and responsibilities are

substantive (the legislative prerogative), and laws which “merely

prescribe the manner in which such rights and responsibilities may be

exercised and enforced” are procedural (the judicial prerogative). Church,

189 N.E.3d at 588 (quotations omitted). So under our separation of

powers, if a “statute is a substantive law, then it supersedes our Trial

Rules, but if such statute merely establishes a rule of procedure, then our

Trial Rules would supersede the statute.” Id. (cleaned up).

That seems clear enough at first blush, but substance and procedure

coalesce when the General Assembly concludes there are circumstances

when procedures are causing substantive harm—collateral damage that is

unnecessary to resolving a legal dispute between parties. A good example

is anti‐SLAPP (Strategic Lawsuits Against Public Participation) laws,

which Indiana has adopted along with thirty‐one other states that

similarly divide power between their legislative and judicial branches.3

SLAPP suits are baseless suits intended to stifle constitutionally protected

speech by burying—or threatening to bury—those expressing opposing

viewpoints under crushing litigation expense and burdens. See Gresk for

Est. of VanWinkle v. Demetris, 96 N.E.3d 564, 568 (Ind. 2018) (explaining

that anti‐SLAPP lawsuits reflect the understanding that “since at least the

1970s, ordinary individuals were being sued for simply speaking out

politically,” and the “defining goal of these lawsuits was not to win, but to

silence opposition with delay, expense and distraction.” (quotations

omitted)).

3 See Austin Vining & Sarah Matthews, Overview of Anti‐SLAPP Laws, Reps. Comm. for

Freedom of the Press, https://www.rcfp.org/introduction‐anti‐slapp‐guide/

[https://perma.cc/8TML‐B7R7] (last visited Nov. 20, 2023) (“As of April 2022, 32 states and the

District of Columbia have anti‐SLAPP laws . . . .”); F. Scott Boyd, Looking Glass Law: Legislation

by Reference in the States, 68 La. L. Rev. 1201, 1251 n.214 (2008) (surveying state constitutional

separation‐of‐powers limitations around the country).

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 8 of 22

Like most state legislatures, our General Assembly responded to this

concern with an anti‐SLAPP law. To invoke the law, a defendant files a

motion to dismiss explaining the lawsuit is based on constitutionally

protected speech, I.C. § 34‐7‐7‐5, which the defendant must identify with

specificity, id. § 34‐7‐7‐9(b). Discovery is then stayed except as necessary to

respond to the issues in the motion to dismiss. Id. §§ 34‐7‐7‐6, ‐9(a)(3). And

the trial court treats the motion to dismiss as a summary judgment

motion, deciding it on an expedited basis. Id. § 34‐7‐7‐9(a)(1).

The General Assembly was addressing a substantive concern: a chill on

citizens’ free speech rights. It was not trying to micromanage the courts.

But because the source of the substantive harm is procedural—the abuse

of court procedures—so too is the remedy of altering motion practice,

shortening deadlines, resequencing discovery, and expediting a ruling.

Gresk, 96 N.E.3d at 568 (“Anti–SLAPP statutes establish key procedural tools

to safeguard First Amendment rights.” (emphasis added)). While we do

not foreclose the possibility that in an appropriate case we could conclude

aspects of the anti‐SLAPP law encroach on the judicial power, the law

illustrates that “except at the extremes, the terms substance and procedure

precisely describe very little except a dichotomy, and what they mean in a

particular context is largely determined by the purposes for which the

dichotomy is drawn.” Church, 189 N.E.3d at 589 (cleaned up).

B. Our judiciary may accommodate statutes altering

procedures if the statutes predominantly further public

policy objectives and do not interfere with the orderly

dispatch of judicial business.

Because substance and procedure sometimes coalesce, we have said

that “the power to make rules of procedure in Indiana is neither

exclusively legislative nor judicial.” State ex rel. Blood v. Gibson Cir. Ct., 239

Ind. 394, 399, 157 N.E.2d 475, 477 (1959). And when the legislature enacts

laws with procedural means to achieve substantive policy objectives

beyond the orderly dispatch of judicial business, we strive to work in a

“spirit of cooperation between the otherwise independent branches of our

government.” Church, 189 N.E.3d at 598 (Goff, J., concurring) (quotations

omitted).

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 9 of 22

That means doing what we can to accommodate legislation that

predominantly furthers public policy objectives, so long as the legislature

is not usurping the judicial prerogative of managing the courts. For

example, we do not yield to statutes that we conclude interfere with

litigation’s truth‐seeking function or with our ability to fulfill our

constitutional obligations, including our obligations to ensure that all

litigants are treated equally, that “[a]ll courts shall be open,” that every

person “shall have remedy by due course of law” for any injury, and that

justice is administered “speedily.” Ind. Const. art. 1, § 12; see also Church,

189 N.E.3d at 589 (discussing procedural rules that “foster accuracy in

fact‐finding” or allow the courts to “function efficiently” (quotations

omitted)); Carlson v. State ex rel. Stodola, 247 Ind. 631, 638, 220 N.E.2d 532,

536 (1966) (“The courts are under a constitutional mandate to administer

justice freely and without any restraint coming from any other

governmental authority.”). The Indiana Constitution designates our Court

as “the final arbiter in case any conflict arises as a result of legislation.”

McCormick v. Vigo Cnty. High Sch. Bldg. Corp., 248 Ind. 263, 266, 226 N.E.2d

328, 330 (1967).

Sometimes we cooperate with the General Assembly by expressly

incorporating legislative accommodations into our rules. As examples, our

Trial Rules defer to statutes specifying what form to use when initiating

certain cases,4 how to maintain confidentiality in cases presenting safety

concerns,5 how to serve parties,6 which cases courts should prioritize,7 and

when courts should issue written findings and conclusions supporting a

4Ind. Trial Rule 3 (“A civil action is commenced by filing with the court a complaint or such

equivalent pleading or document as may be specified by statute . . . .”).

5T.R. 3.1(A)(8) (providing that in cases involving protective orders, the “initiating party may

use the Attorney General Address Confidentiality program established by statute”).

6T.R. 4.17 (“Rules 4 through 4.16 shall not replace the manner of serving summons or giving

notice as specially provided by statute or rule in proceedings involving, without limitation,

the administration of decedent’s estates, guardianships, receiverships, or assignments for the

benefit of creditors.”).

7T.R. 40 (“Precedence shall be given to actions entitled thereto by any statute of the state,

including hearings upon temporary restraining orders, injunctions and receiverships.”).

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 10 of 22

judgment.8 Our Appellate Rules likewise defer to statutes establishing

when to initiate an appeal in certain circumstances,9 which appeals to

prioritize,10 and how to request relief outside of motion practice.11 Our

cooperation is not a blank check though, and just as often we cannot

accommodate the legislature, with some of our rules instead saying they

govern over conflicting statutes.12

8T.R. 52(A)(3) (requiring findings and conclusions “in any other case[s] provided by these

rules or by statute”).

9 Ind. Appellate Rule 14(A)(9) (governing the interlocutory appeal of an order “[i]ssued by an

Administrative Agency that by statute is expressly required to be appealed as a mandatory

interlocutory appeal”); App. R. 14(D) (providing that “[o]ther interlocutory appeals may be

taken only as provided by statute”).

10App. R. 21(A) (“The court shall give expedited consideration to interlocutory appeals and

appeals involving issues of child custody, support, visitation, adoption, paternity,

determination that a child is in need of services, termination of parental rights, and all other

appeals entitled to priority by rule or statute.”).

11App. R. 34(A) (“Unless a statute or these Rules provide another form of application, a

request for an order or for other relief shall be made by filing a motion.”).

12T.R. 69(E) (“Notwithstanding any other statute to the contrary, proceedings supplemental to

execution may be enforced by verified motion or with affidavits in the court where the judgment

is rendered . . . .”); T.R. 75(D) (“Any provision of these rules and any special or general statute

relating to venue, the place of trial or the authority of the court to hear the case shall be subject to

this rule, and the provisions of any statute fixing more stringent rules thereon shall be ineffective.

No statute or rule fixing the place of trial shall be deemed a requirement of jurisdiction.”); App. R.

5(A) (“Except as provided in Rule 4, the Court of Appeals shall have jurisdiction in all appeals

from Final Judgments of Circuit, Superior, Probate, and County Courts, notwithstanding any law,

statute or rule providing for appeal directly to the Supreme Court of Indiana. See Rule 2(H).”);

App. R. 5(C)(2) (“No party shall file an assignment of errors in the Court of Appeals

notwithstanding any law, statute, or rule to the contrary. All issues and grounds for appeal

appropriately preserved before an Administrative Agency may be initially addressed in the

appellate brief.”); App. R. 9(A)(3) (“A judicial review proceeding taken directly to the Court of

Appeals from an order, ruling, or decision of an Administrative Agency is commenced by filing a

Notice of Appeal with the Clerk within thirty (30) days after the date of the order, ruling or

decision, notwithstanding any statute to the contrary.”); App. R. 9(I) (“In Administrative Agency

appeals, the Notice of Appeal shall include the same contents and be handled in the same manner

as an appeal from a Final Judgment in a civil case, notwithstanding any statute to the contrary.”);

App. R. 13 (“In cases taken directly to the Court of Appeals from the final orders, rulings or

decisions and certified questions of an Administrative Agency, the preparation, contents, and

transmittal of the Record on Appeal, to the extent possible pursuant to Rules 10, 11 and 12, shall

be governed by the same provisions applicable to appeals from Final Judgments in civil cases,

including all applicable time periods, notwithstanding any statute to the contrary.”).

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 11 of 22

When we have not anticipated legislation in our own rules, we have

sometimes still expressed our “assent” to a statute while resolving a case.

Humbert v. Smith, 664 N.E.2d 356, 356 (Ind. 1996). In Humbert, we

considered a paternity statute requiring courts to admit into evidence

blood test results in circumstances where our Rules of Evidence required

excluding the results. Id. at 356–57. We concluded the statute was

procedural and conflicted with our Rules of Evidence, which would

usually mean the rule governed instead of the statute. Id. at 357. But

because the statute was “consistent with the special care Indiana’s courts

have taken toward the expeditious resolution of questions of paternity,

custody, and support of children,” we decided “we should assent to” the

statute by treating it as an exception to the Rules of Evidence. Id.

We have also evaluated statutes and concluded the procedural

elements are means to public policy ends, so the statutes are valid

legislative enactments. Just a few months before the Court of Appeals

issued its decision in this case, our Court decided Church, which

established a new framework for evaluating whether a statute is, overall, a

substantive law or a procedural law for purposes of deciding whether the

law is a valid legislative exercise. We explained this is not “a mechanical

test that simply stops when it finds a process.” Church, 189 N.E.3d at 590.

Instead, we evaluate the statute’s “predominant purpose.” Id. at 589. “If

the statute predominantly furthers judicial administration objectives, the

statute is procedural. But if the statute predominantly furthers public

policy objectives involving matters other than the orderly dispatch of

judicial business, it is substantive.” Id. at 590 (quotations omitted).

At issue in Church was a statute limiting depositions of child sex crime

victims even if the depositions are otherwise permitted under Trial Rule

26 (discovery scope and methods) and Trial Rule 30 (depositions).

Depositions are procedural devices for obtaining testimony, and many of

the statute’s directives are procedural in nature: A defendant must first

contact the prosecutor about deposing the child; if there is no agreement,

the defendant must petition the court to authorize the deposition; and

after a hearing, the court can only authorize the deposition if it finds there

is a reasonable likelihood the child will be unavailable for trial and the

deposition is necessary to preserve the testimony, or the deposition is

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 12 of 22

necessary and in the interests of justice due to other extraordinary

circumstances. I.C. § 35‐40‐5‐11.5.

But even with these procedural elements, we concluded the statute “is

substantive because it predominantly furthers public policy objectives.”

Church, 189 N.E.3d at 590. We agreed with the State that the statute

“creates substantive protections for child victims of sex crimes that guard

against needless trauma inflicted through compelled discovery

depositions by declining to grant defendants in this limited set of

circumstances the substantive right to take discovery depositions.” Id. at

590–91 (cleaned up). And while depositions are an important litigation

tool, we concluded that limiting depositions in these circumstances would

not interfere with the judiciary’s truth‐seeking function nor undermine the

defendant’s constitutional rights. Id. at 597. Instead, we noted the Trial

Rules already gave trial courts discretion to limit discovery rights,

including limiting depositions. Id. at 586.

As with the anti‐SLAPP law, procedure was the source of the harm, so

the remedy was too, but the objective was substantive—the legislature

was trying to protect children, not micromanage the orderly dispatch of

litigation.

C. Section 7 does not encroach on the judicial power.

Likewise, we conclude Section 7 is a valid legislative enactment. To be

sure, just as depositions are “procedural devices,” Hickman v. Taylor, 329

U.S. 495, 505 (1947), so too are class actions, State ex rel. Firestone v. Parke

Cir. Ct., 621 N.E.2d 1113, 1114 (Ind. 1993) (discussing “the procedural

device of class actions”). But like in Church, everything about Section 7

and the context of its enactment conveys the General Assembly was

tweaking a procedural rule to predominantly further a public policy

objective—which here, both sides agree is to limit the university’s

litigation exposure for pandemic‐related contract claims during a global

crisis.

Section 7 does that in two related ways. The first is by limiting any

potential payouts to only students who sue the university; there is no

recovery for members of a putative class who do not assert a claim.

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 13 of 22

The second is by removing the potential for excessive settlement

pressure. Sometimes class certification “can coerce the defendant into

settling on highly disadvantageous terms, regardless of the merits of the

suit,” because litigating on a class‐wide basis greatly increases “the

magnitude of the potential damages.” Creative Montessori Learning Ctrs. v.

Ashford Gear LLC, 662 F.3d 913, 915 (7th Cir. 2011) (quotations omitted). To

illustrate this magnitude, the University of Notre Dame’s amicus brief

reports that a federal putative class action against Notre Dame asserting

similar pandemic‐related claims converts an individual thirty‐thousand

dollar claim into a class claim for over one hundred million dollars.

Another amicus brief reports that members of the Independent Colleges of

Indiana face class claims exceeding their total endowments.

No party contends that when the General Assembly reconvened with

its first opportunity to respond to the pandemic, it passed Section 7 as a

reform measure with “judicial administration objectives” to improve or

change “the orderly dispatch of judicial business.” Church, 189 N.E.3d at

590 (quotations omitted). Instead, Section 7 reflects an attempt to

minimize postsecondary educational institutions’ litigation exposure for

rapid, difficult decisions they had to make when confronting a historic

disaster and complying with government directives. Most telling in this

regard is that Section 7 was part of a broader bill establishing a number of

pandemic legal protections, including protecting health care workers from

professional discipline and tort liability, declaring that pandemic‐related

emergency orders did not create new causes of action, shielding other

government entities from pandemic‐related class actions for contract

claims, and establishing immunity from tort claims for governmental

entities and employees acting within the scope of their employment for

COVID‐19‐related damages. See generally Pub. L. No. 166‐2021, 2021 Ind.

Acts 2253. The legislature also greatly limited the scope of the class action

bar at issue here—Section 7 carves out a narrow category of claims

(contract law claims arising from COVID‐19)13 against a defined group of

defendants (government entities and postsecondary educational

13 I.C. § 34‐12‐5‐7.

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 14 of 22

institutions)14 for a narrow period of time (state of disaster emergency

declared between February 29, 2020 and April 1, 2022).15

As in Church, Section 7 reflects “a careful legislative balancing of policy

considerations.” 189 N.E.3d at 591 (quotations omitted). Mellowitz argues

the balance is unfair because Ball State received substantial federal

pandemic relief funds, and he contends that precluding class actions has

the practical effect of shifting the COVID‐19 financial burden onto

students who did not receive that sort of relief in an era when students

already shoulder substantial student‐loan debt. But those are policy

arguments that must be resolved by our General Assembly. “In

determining whether legislation is violative of constitutional restraints the

courts will confine themselves to the question, not of legislative policy, but

of legislative power.” Dep’t of Fin. Insts. v. Holt, 231 Ind. 293, 301–02, 108

N.E.2d 629, 634 (1952).

Mellowitz further emphasizes that when explaining the test we

announced in Church, we cited cases that in turn cited a Michigan Law

Review Article, and that article says that whether to permit a class action

is a matter of “judicial procedure” which court rules should cover. Charles

W. Joiner & Oscar J. Miller, Rules of Practice and Procedure: A Study of

Judicial Rule Making, 55 Mich. L. Rev. 623, 648 (1957). That is true, as far as

it goes. Class actions are quintessentially procedural devices, just as

depositions, bifurcated discovery, motions to dismiss, and summary

judgment motions are procedural devices. So the analysis here might be

different if the legislature were banning class actions altogether, see, e.g.,

Budden v. Bd. of Sch. Comm’rs of City of Indianapolis, 698 N.E.2d 1157, 1162

(Ind. 1998) (acknowledging that sometimes class actions are “essential to

the assertion of any claim at all”), just as the analysis in Church may have

been different if the legislature were banning depositions altogether, and

the analysis in the anti‐SLAPP context might be different if the legislature

14 I.C. § 34‐12‐5‐5.

15 I.C. § 34‐12‐5‐2(a).

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 15 of 22

were superseding the pleading, discovery, and motion rules more

broadly.

But in this context too, the legislature adopted a much narrower

approach, and the Church test presupposes we are confronting a statute

that arguably entails both substantive and procedural components. We are

then required to assess whether the predominant purpose is substantive

or procedural, which is consistent with the explanation in the Michigan

Law Review article that “there are areas in which it is not clear whether

the legislature or the judiciary should establish the necessary rules,” and

“theory must give way to reality.” Joiner & Miller, supra, at 629. Here, the

reality is that the legislature’s predominant purpose was substantive.

Further illustrating the point, this is not the first time the General

Assembly has altered class action procedures to address substantive

concerns, and the class action prohibition here is the inverse of the Public

Lawsuit Statute, which requires class treatment. I.C. § 34‐13‐5‐2. That

statute reflects a legislative acknowledgment that “litigation can be

deployed to delay and sometimes even defeat public projects, and can be

driven by a variety of motivations, some of which may have little to do

with the merits of the project from the perspective of the general public.”

Bonney v. Ind. Fin. Auth., 849 N.E.2d 473, 478 (Ind. 2006). Even if the

litigation does not defeat the project, the delays still can “add millions of

dollars in increased construction costs.” Huber v. Franklin Cnty. Cmty. Sch.

Corp. Bd. of Trustees, 507 N.E.2d 233, 236 (Ind. 1987).

Responding to these public policy concerns, the “statute imposes a

number of procedural rules governing public lawsuits, including provisions

that are designed to consolidate all litigation in one forum and the

requirement that a bond be posted.” Bonney, 849 N.E.2d at 479 (emphasis

added). To save public projects from needless delay and death by a

thousand litigation cuts, the statute directs that a public lawsuit “is a class

suit (whether captioned as such or not).” I.C. § 34‐13‐5‐2(b); see also Huber,

507 N.E.2d at 236 (explaining that the Public Lawsuit Statute’s “goal is to

require those attacking governmental decisions to bring their suits as class

actions and to put a stop to serial litigation”). The requirement “to bring a

public lawsuit as a class action neither confers new rights on the litigants

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 16 of 22

nor affords them new remedies.” Dible v. City of Lafayette, 713 N.E.2d 269,

275 (Ind. 1999).

But just like the anti‐SLAPP law and the child deposition statute in

Church, even though the Public Lawsuit Statute does not alter the parties’

underlying substantive legal rights and remedies, its procedural

requirements are in service of public policy objectives that have nothing to

do with judicial administration concerns. While the Public Lawsuit Statute

requires class treatment, and Section 7 prohibits it, in both instances the

General Assembly has defined a narrow set of circumstances involving a

particular group of parties and regulated the availability of the class

action procedural device to achieve public policy objectives.

Because Section 7 predominantly furthers public policy objectives

rather than judicial administrative objectives, and because it does not

undermine the truth‐seeking function of litigation or the courts’

constitutional obligations, the trial court was correct to conclude it is a

valid legislative enactment.

II. Section 7 is not an unconstitutional taking.

Mellowitz next argues that retroactively16 prohibiting him from

maintaining a class action on behalf of similarly situated students

constitutes an unconstitutional taking. Both the state and federal

constitutions prohibit the government from taking property without just

compensation, and “[i]t has long been recognized that an accrued cause of

action may be a property right.” Cheatham v. Pohle, 789 N.E.2d 467, 473

(Ind. 2003); see also Ind. Const. art. 1, § 21; U.S. Const. amend. V. Mellowitz

contends that by taking away his ability to maintain his suit as a class

action, the State has taken away an accrued cause of action. The trial court

16 Ball State argues the trial court did not apply the statute retroactively because even though

the statute became effective after Mellowitz filed his complaint with class action allegations, it

was nevertheless effective before he filed a motion asking the trial court to certify a class. We

need not decide the question of whether the trial court’s application of the statute was

retroactive because Mellowitz’s takings claim fails either way for the reason that he has no

property right to maintain a class action.

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 17 of 22

rejected this argument, explaining that “[a] class action is not a vested

property right capable of being taken,” App. at 20, and we agree.

Mellowitz conflates the class action device with its underlying cause of

action, but they are not the same. A “cause of action” is “[a] group of

operative facts giving rise to one or more bases for suing,” “a factual

situation that entitles one person to obtain a remedy in court from another

person,” or “[a] legal theory of a lawsuit.” Cause of Action, Black’s Law

Dictionary (11th ed. 2019). A “class action” is “[a] lawsuit in which the

court authorizes a single person or a small group of people to represent

the interests of a larger group.” Class Action, Black’s Law Dictionary (11th

ed. 2019). In this case, Mellowitz has a cause of action for his contract and

unjust enrichment claims, but the class action is just one potential means

of pursuing his cause of action. A class action is not itself a cause of action,

which is why if there is no underlying individual cause of action, there is

no class action. See Bd. of Rev. of Assessments for Lake Cnty. v. Kranz, 224 Ind.

358, 360, 66 N.E.2d 896, 897 (1946) (“It is filed as a class action, but if the

named plaintiffs, hereinafter called appellees, have no cause of action,

neither has the class of which they are a part and for whom they sue.”)

Even so, Mellowitz also argues that precluding the class action at least

has the effect of eliminating his underlying cause of action, just as

shortening a statute of limitations might. He reasons that “Section 7

removes the only effective remedy for redress for Mellowitz and his

fellow students” because the cost and difficulty of pursuing individual

claims may make them uneconomical. Resp. to Trans. at 21. But this

argument fails on the facts and law.

As to the facts, there is no support in the record for the assertion that

the only way it is worthwhile for students to pursue pandemic‐related

claims to recover tuition and fees is through a class action. Mellowitz does

not tell us the amount of his claim, but Notre Dame reports that a similar

claim by one of its students is for roughly thirty thousand dollars. Even

setting aside the difference in public and private school tuition, our state

courts routinely handle individual claims for amounts in this ballpark.

And we have no way of knowing how many students have sued and why

others have not—e.g., whether other students have foregone lawsuits

because individual suits are not worth it, or instead because the distance

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 18 of 22

learning and other services their schools provided led them to conclude

they do not have a valid claim. We cannot simply assume that Section 7

has the practical effect of foreclosing students from pursuing their claims

because “every statute stands before us clothed with the presumption of

constitutionality unless clearly overcome by a contrary showing,” and it is

“the party challenging the statute’s constitutionality” that bears that

burden, with all doubts resolved in favor of upholding the statute. KS&E

Sports v. Runnels, 72 N.E.3d 892, 905–06 (Ind. 2017) (quotations omitted).

As to the law, Mellowitz presents a novel takings argument, pointing to

Guthrie v. Wilson, 240 Ind. 188, 162 N.E.2d 79 (1959), as his best case from

our Court in support. That was a case in which a minor’s medical

malpractice cause of action accrued before the enactment of a statute

shortening the statute of limitations, and our Court interpreted the statute

to apply prospectively, rather than retroactively, because “any legislative

attempt to take away immediately and completely all legal means for the

enforcement of [a vested] right . . . would amount to a subversion of the

right itself.” Id. at 82. But here the General Assembly has not “take[n]

away immediately and completely all legal means” for Mellowitz to

pursue his contract claims. Id. Just the opposite, the General Assembly

preserved Mellowitz’s right to sue Ball State on his own behalf, which the

trial court is permitting him to do.

Because Mellowitz has no property right to maintain a class action, his

takings claim fails.

III. The statute does not unconstitutionally impair

Ball State’s contract obligations to Mellowitz.

Finally, Mellowitz argues that Section 7 violates the Contract Clauses in

the state and federal constitutions. Article 1, section 24 of the Indiana

Constitution prohibits any “law impairing the obligation of contracts,”

and Article 1, section 10 of the United States Constitution provides the

same protection. See Bruck v. State ex rel. Money, 228 Ind. 189, 197, 91

N.E.2d 349, 352 (1950) (“The obligations of a valid contract are protected

by both the State and Federal Constitutions.”). The underlying concern of

these provisions “is that a legislature or court will render invalid the

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 19 of 22

rights and obligations which the parties agreed to in their contract.”

Evansville‐Vanderburgh Sch. Corp. v. Moll, 264 Ind. 356, 370, 344 N.E.2d 831,

841 (1976).

A plaintiff can only prevail on a Contract Clause claim if the law

operates as “a substantial impairment of a contractual relationship,” with

“the severity of [the] impairment . . . measured by factors that reflect the

high value the Framers placed on the protection of private contracts.”

Clem v. Christole, Inc., 582 N.E.2d 780, 783–84 (Ind. 1991) (quotations

omitted). The Framers understood that “[c]ontracts enable individuals to

order their personal and business affairs according to their particular

needs and interests.” Id. at 784 (quotations omitted). And “[o]nce

arranged, those rights and obligations are binding under the law, and the

parties are entitled to rely on them.” Id. (quotations omitted).17

The trial court rejected Mellowitz’s Contract Clause argument because

his “individual claim for breach of implied contract (alternatively unjust

enrichment) remains and has not been impaired by the statute.” App. at

20. Again, we agree. Section 7 does not alter the contractual relationship

between Mellowitz and Ball State at all, and the trial court has permitted

Mellowitz to litigate his breach of contract claim against the university.

Section 7 only prohibits Mellowitz from seeking to enforce other

students’ alleged contracts, but he does not point to any agreement he had

with Ball State that guaranteed he could enforce other students’ rights,

and it is not enough to simply point out that Trial Rule 23 was part of the

background law when Mellowitz and the university entered a contract.

Bryson v. McCrary, 102 Ind. 1, 10, 1 N.E. 55, 60 (1885) (explaining “there are

no vested rights in the law generally”). Mellowitz argues that precluding

him from representing a class deprives him of his only effective remedy to

enforce his own individual rights under his alleged contract with the

university. But we must reject that argument for the same reason we

17Even if a statute substantially impairs a contract, it may nevertheless remain constitutional

as a valid exercise of the State’s police power if the statute is “necessary to meet an important

general social problem.” Clem v. Christole, Inc., 582 N.E.2d 780, 784 (Ind. 1991) (quotations

omitted).

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 20 of 22

rejected it in the takings context—we cannot accept the invitation to

simply assume Mellowitz is without an effective contract remedy because

Section 7 is presumed constitutional unless Mellowitz demonstrates

otherwise, and he has not demonstrated that his suit against Ball State to

recover his own tuition and fees is an inadequate means for enforcing his

alleged contract rights.

Conclusion

For these reasons, we affirm the trial court’s decision.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

ATTORNEYS FOR APPELLANT

Eric S. Pavlack

Colin E. Flora

Pavlack Law, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Brian J. Paul

Jane Dall Wilson

Paul A. Wolfla

Jason M. Rauch

Faegre Drinker Biddle & Reath LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE‐INTERVENOR

Theodore E. Rokita

Attorney General of Indiana

Benjamin M. L. Jones

Assistant Section Chief, Civil Appeals

James A. Barta

Deputy Solicitor General

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 21 of 22

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE INDIANA UNIVERSITY,

PURDUE UNIVERSITY, UNIVERSITY OF NOTRE DAME DU LAC,

AND INDEPENDENT COLLEGES OF INDIANA

Brian E. Casey

Sarah E. Brown

Barnes & Thornburg LLP

South Bend, Indiana

ATTORNEY FOR AMICUS CURIAE INDEPENDENT COLLEGES OF

INDIANA

Jodie Ferise

Independent Colleges of Indiana

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE INDIANA LEGAL

FOUNDATION

Maggie L. Smith

Darren A. Craig

Frost Brown Todd LLC

Indianapolis, Indiana

Indiana Supreme Court | Case No. 23S‐PL‐60 | November 21, 2023 Page 22 of 22