Opposition Brief — Brazauskas v. Fort Wayne-South Bend Diocese, Inc.

No. 03-952

IN THE

Supreme Court of the United States

BEVERLY M. BRAZAUSKAS,

Petitioner,

V.

DIOCESE OF FORT WAYNE-SOUTH BEND, INC.,

SACRED HEART PARISH and JOSE MARTELLI,

Respondents.

ON PETITION FOR A Writ OF CERTIORARI TO THE

SUPREME Court OF INDIANA

BRIEF IN OPPOSITION

WILLIAM T. Hopkins, JR.

Counsel of Record

KAREN A. FESTA

BARNES & THORNBURG

600 One Summit Square

Fort Wayne, Indiana 46802

(260) 423-9440

Attorneys for Respondents

185571 ce}

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED

1. Does the “church autonomy doctrine” defeat a claim

under Indiana’s former blacklisting statute against a church and

its clergy, where the ex-employee’s only evidence of alleged

blacklisting were communications between clergy made pursuant

to their obligations under a religious directive issued by the highest

church authority, and where there is no evidence that those

communications concerned her re-employment?

2. Under Employment Div. v. Smith, can an ex-employee

impose liability under Indiana’s former blacklisting statute on a

church and its clergy for communications made to other church

officials, where such communicative activity occurred pursuant

to a religious directive that concerned matters of internal church

governance?

il

LIST OF PARTIES

All of the parties to this proceeding are correctly listed in

the Petition for a Wnt of Certiorari, except that the correct name

of the Respondent identified as “Fort Wayne-South Bend

Diocese, Inc.” is “Diocese of Fort Wayne-South Bend, Inc.”

RULE 26.9 NOTATION

The Respondent, Diocese of Fort Wayne-South Bend, Inc.,

has no parent, and there are no publicly held companies that

hold any stock of the Respondent.

ill

TABLE OF CONTENTS

Questions Presented ...........-0ee seer eens:

se ec ceweseenNenseseserees

Rule 26.9 Notation .......ccceccevvcceservees

ee Oe) eee nie

Table of Cited Authorities ..........-.00 5c ee eee

Statement of Jurisdiction ..........-.--eeeeeee

Constitutional Provisions and Statutes bavolved ore

Statement of the Case ........... eee eee eeeeee

i ce weveseeerwucscsenes

3. Procedural History ..........-.---eeeees

Reasons for Denying the Petition .........-..--.

1. No national or public interest will be served

by review of this case because it involves the

vindication of a state-created right under the

former version of a state statute. .........

iv

Contents

Page

2. The Indiana Supreme Court did not deviate

from established precedent regarding church

autonomy, and did not render a significant

church autonomy decision, warranting

i eee ET eT terre 14

3. This case does not present compelling

grounds for this Court to reexamine the

hybrid exception because the Indiana

Supreme Court’s decision focused on church

Re eee Te 19

en ote or ee Tait ey ee rae 24

Vv

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Bartlett v. Stephenson, 535 U.S. 1301 (2002) ..... 11, 12

Bridgestone/Firestone, Inc. v. Lockhart, 5 F. Supp.

2d 667 (S.D. Ind. 1997) ....- 6. esses eee e eee 13

Brown v. Hot, Sexy and Safer Productions, Inc.,

68 F.3d 525 (1st Cir. 1995), cert. denied, 516 U.S.

FESR CUSSED cpccescevisndanevsesecucteeres 22

Bryce v. Episcopal Church, 289 F.3d 648 (10th Cir.

MOND ccccnceseenkiausthexcedenssueearess 15, 16

Butts v. OCE-USA, Inc., 9 F. Supp. 2d 1007 (S.D.

eg nr eerie rrr) verry 13

Cantwell v. Connecticut, 310 U.S. 296 (1940) ....17, 20

Combs y. Central Tex. Annual Conf. of the United

Methodist Church, 173 F.3d 343 (Sth Cir. 1999)

oS) Stee ae ask oa Ca ae ee eee 15

EEOC v. Catholic University of Amer., 83 F.3d 455

CDC. Cie, FO occ cc ccncestecevecvesecs 15, 22. 23

EEOC v. Roman Catholic Diocese, 213 F.3d 795

ee | PP Perrrrrrrrr errr Ter rer 15

Employment Division v. Smith, 494 U.S. 872 (1990)

ede R aad 64GkaeRaVAEECAOREDS TORSO TEE CE passim

vi

Cited Authorities

Page

Gellington v. Christian Methodist Episcopal Church,

203 F.3d 1299 (11th Cir. 2000) .............. 15

Gonzales v. Roman Catholic Archbishop, 280 US.

CEG RSD a xecannesc0ensecesceeecessuseeves 14

Hull v. Central Trans., Inc., 628 F. Supp. 784 (N.D.

| Peper ererrcrrirrrT er tree 13

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)

SeuUESS 5S 4ESS4O465 060000 60b0040s0 0804805 14

Kissinger v. Board of Trustees of Ohio St. University,

5 F.3d 177 (6th Cir. 1993) ....... 0.0.00 .0005. 22

Knight v. State of Conn., 275 F.3d 156 (2d Cir. 2001)

phd S 549505 04606745056460405605 60000000000" 21

Kreshik v. St. Nicholas Cathedral of Russian

Orthodox Church, 363 U.S. 190 (1960) ....... 14

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387 (1923) 22... cece ee ee eee ll

Lucas v. Townsend, 486 U.S. 1301 (1988) ........ 11-12

Md. & Va. Churches v. Sharpsburg Church, 396 U.S.

BOT CETOR 5 55-05 565450555 0ecss wnegeseerses 15

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ... 20

vil

Cited Authorities

Page

Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 U.S. 70 (1955) ......cccccccesccesevecs 10, 11

Ross v. Moffitt, 417 U.S. 600 CUOPGE cvcwsscasass 13

Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) ..... cee reeceecceceres 14

Swanson v. Guthrie Independent Sch. District,

135 F.3d 694 (10th Cir. 1998) .........--0eee 21

Thomas v. Anchorage Equal Rights Com’n, 165 F.3d

692, withdrawn, reh'g granted, 192 F.3d 1208

(9th Cir. 1999), vacated en banc, 220 F.3d 1134 ~

(9th Cir. 2000), cert. denied, 531 U.S. 1143 (2001)

3 Or rite an RNa acl aaa a a ee a Oe 21

Ticor Title Insurance Co. v. Brown, 511 U.S. 117

(TODA) co vic vin vnnccvaccoosusecuccssuseesees 11

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) ... 14

STATE CASES

Brazauskas v. Ft. Wayne-S. Bend Diocese, Inc.,

755 N.E.2d 201 (Ind. Ct. App. 2001) .......... 6

Brazauskas v. Ft. Wayne-S. Bend Diocese, Inc.

(“Brazauskas”’), 796 N.E.2d 286 (Ind. 2003) .. passim

vill

Cited Authorities

Page

Burk v. Heritage Food Serv. Equipment, Inc.,

737 N.E.2d 803 (Ind. Ct. App. 2000) .......... 13

McKelvey v. Pierce, 800 A.2d 840 (N.J. 2002) .... 17

Wabash Railroad Co. v. Young, 162 Ind. 102,

69 N.E.2d 1003 (Ind. 1904) ................. 13

DOCKETED CASES

Brazauskas v. Ft. Wayne-S. Bend Diocese, Inc.,

No. 71D07-9302-CP-10017 (St. Joseph Super. Ct.

Pe Sonn A cviuvancantdavedeonnerasadis 6

UNITED STATES CONSTITUTION

ey I Ee yt ad Th ee ice 6,9, 22

STATE STATUTES

Bee, Come © £2-S-3-E CUSED oo ove ce cece seewsces 4

—_-———_

Ind. Code § 22-5-3-2 (1993) ........ccccccceess 4

Ind. Code Ann. § 22-5-3-1(b) (West 2003) ....... 1,9

1x

Cited Authorities

Page

RULE

Sup. CLR. 10 onc csvccccecccvcccccesesecrves 13, 20

MISCELLANEOUS

Am. Jur. 2d Labor & Labor Relations § 669 (2003)

Area Pe Ter er on ry ere Ty eee 12

Ex Corde Ecclesiae 1... cccccccccccccccvveees passim

Validity, Construction, and Operation of State

Blacklisting Statutes, 95 A.L.R.5th 1 (2004) ... 12

l

Respondents, the Diocese of Fort Wayne-South Bend,

Inc., Sacred Heart Parish, and Jose Martelli, respectfully

request that this Court deny the Petition for a Writ of

Certiorari, seeking review of the Supreme Court of Indiana’s

opinion in this case.

STATEMENT OF JURISDICTION

Petitioner’s statement regarding jurisdiction is correct

xcept that the Indiana Supreme Court’s opinion did not

“affirm[] dismissal of Petitioner’s claim.” Rather, the Indiana

Supreme Court reversed the dismissal of the case for lack of

subject matter jurisdiction and remanded it to the trial court

for entry of summary judgment in the Respondents’ favor.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Respondents include the following 1995 revision to the

Indiana blacklisting statute in addition to the constitutional

and statutory provisions cited by Petitioner:

An employer that discloses information about

a current or former employee is immune from civil

liability for the disclosure and the consequences

proximately caused by the disclosure, unless it is

proven by a preponderance of the evidence that

the information disclosed was known to be false

at the time the disclosure was made.

IND. Cope ANN. § 22-5-3-1(b) (West 2003).

—

4

STATEMENT OF THE CASE

1. Introduction

The issue in this case arises under a version of the

Indiana blacklisting statute in effect prior to 1995. Petitioner

Beverly Brazauskas (“L3razauskas’’) seeks reinstatement of

her blacklisting claim against the Respondents Diocese of

Fort Wayne-South Bend, Inc. (“Diocese”), Sacred Heart

Parish (“Sacred Heart”), and Father Jose Martelli

(Fr. Martelli”). Brazauskas has petitioned this Court for a

writ of certiorari to the Indiana Supreme Court, which

ordered the case remanded for entry of summary judgment

in favor of the Diocese, Sacred Heart, and Fr. Martelli.

2. Facts

Sacred Heart, which is part of the Diocese, is located on

the campus of the University of Notre Dame (“Notre Dame’”’)

near South Bend, Indiana. In 1992, Brazauskas was employed

by Sacred Heart as the Director of Religious Education and

Liturgy. In August 1992, Fr. Martelli, who was the Parish

Pastor and Brazauskas’ supervisor, dismissed her from her

position because he had serious concerns about how she

performed her pastoral duties.

In October, 1992, the Assistant Chair of the Notre Dame

Theology Department and a supporter of Brazauskas,

Dr. Kern Trembath (“Trembath”), sent a letter to Fr. Martelli

regarding Brazauskas’ termination. In the letter, Trembath

accused Fr. Martelli of scandalizing the Catholic Church by

firing its employees. He indicated that “the fact that you are

allowed to remain a priest is simply and strictly a measure of

the worldwide shortage of priests.” (Appendix to Petition

3

for a Writ of Certiorari, page 8 (““Pet. App. 8”)). He described

Fr. Martelli as “a bad priest, and. . . not acultural American.”

(/d.) Trembath’s letter was followed by a second letter in

October 1992 from Trembath and 41s wife accusing

Fr. Martelli of lying, and threatening litigation unless, among

other things, he resolved Brazauskas’ issues against him to

the satisfaction of Brazauskas and her attorney. (J/d.).

In November 1992, Fr. Martelli wrote to Notre Dame’s

President, Father Edward Malloy (“Fr. Malloy”). He enclosed

copies of the Trembaths’ letters, indicating that they “include

charges and accusations so alarming in nature that I would

be remiss not to bring them to your attention.” (Pet. App. 8).

Fr. Martelli mentioned Brazauskas only as the reason for the

Trembaths’ letters. He did not criticize her or her actions.

(/d.). Fr. Martelli indicated that “I send these documents to

you for your information and not with the intent of causing

more trouble for anyone.” (/d.).

In February 1993, Brazauskas sued the Diocese, Sacred

Heart and Fr. Martelli (collectively, “Diocese defendants”)

over her termination alleging a variety of state law claims.

All of her claims were eventually dismissed in various

state court proceedings. While her lawsuit was pending,

Brazauskas applied for a position at Notre Dame as the Acting

Director of the Program for Church Leaders (“PCL”), a

sabbatical program for persons in the religious ministry.

In June . 993, a Notre Dame search committee recommended

Brazauskas for the PCL job to Fr. Malloy.

Fr. \ alloy indicated that he was unaware that the PCL

prograim was still in existence and that he thought the program

had been dissolved. (Pet. App. 3 n.1, 20). He also testified

that it was his belief that Notre Dame “should not hire

4

someone who is in an active lawsuit against the local bishop

until that matter [is] resolved.” (Pet. App. 2). He stated

that “I consider a [C]atholic university to desirably have a

positive and respectful relationship to the [C]atholic church

community, including the local bishop,” and hiring someone

bringing a pending lawsuit “would be a gesture of ill will

until such a matter was resolved by the courts.” (Pet. App. 2-

3). The PCL program was subsequently eliminated. (Pet. App.

3 n.1, 20).

After Brazauskas learned that she had not received the

Notre Dame PCL job in the summer of 1993, she added

claims to her lawsuit against the Diocese defendants for

blacklisting, pursuant to a pre-1995 version of Indiana’s

blacklisting statute, and for tortious interference with a

business relationship. '

The Indiana blacklisting statute prohibited a “person”

from “preventing” a former employee from obtaining

employment with “any other person” or attempting to do so.

IND. CopE §§ 22-5-3-1, 22-5-3-2 (1993); (Petition for a Writ

of Certioraii, p»ge 3 (“Pet. 3”)) Srazauskas claimed that the

Diocese defendants made cor:s:unications to Notre Dame

that unlawfully prevented ter from getting the PCL job.

Brazauskas produced no evidence that Diocese and Notre

1. Brazauskas added her tortious interference claim in August

1993, and blacklisting in September 1995. (Pet. App. 21). The Indiana

Supreme Court held that the former was more accurately “tortious

interference with prospective advantage,” an element of which was

“independent illegal action.” Brazauskas, 796 N.E.2d at 289 n.?2,

291 (citation omitted) (Pet. App. 3 n.2, 7). Since blacklisting was

the only illegal action Brazauskas alleged, her ability to assert a

tortious interference claim would depend on her ability to sustain a

blacklisting claim. Jd. at 291 (citation omitted) (Pet. App. 7).

5

Dame officials communicated about the PCL posit" or her

candidacy for it. (Pet. App. 9). Instead, Brazauskas claimed that

blacklisting could be inferred from Fr. Martelli’s corresondence

to Fr. Malloy enclosin. the Trembaths’ letters, phor records

showing calls from the office of the Bishop of the Diocese,

John M. D’Arcy (“Bishop D’Arcy’”) to Notre Dame officials

during the weeks of Brazauskas’ candidacy for the PCL

job, and Notre Dame’s cancellation of the PCL program.

(Pet. App. 8-9, 26-27).

The relationship and communications between a Catholic

Diocese and a Catholic university located within that Diocese -

are governed by a religious directive that Pope John Paul II

issued in 1991. That directive, entitled Ex Corde Ecclesiae,’ is

based on Catholic Church Canon Law. Ex Corde Ecclesiae calls

for “close personal and pastoral relationships ... between

universities and Church authorities characterized by mutual trust,

close and consistent cooperation and continuing dialogue.”

Ex Corde Ecclesiae at 20 (Pet. App. 3, 27-28). Ex Corde

Ecclesiae requires that Catholic universities “be in close

communion with the local Church . . . and in particular” with

the local Bishop. Jd. at 33-34 (Pet. App. 28). It also requires

that the local Bishop “promote the welfare of the Catholic

universities in his discese” and “watch over the preservation

and strengthening of their Catholic character.” Jd. (Pet. App.

28). Ex Corde Ecclesiae requires a Catholic university to appoint

persons “to provide pastoral ministry for the university

community, carried on in harmony and cooperation with the

pastoral activities of the local Church under the guidance or

with the approval of the diocesan bishop.” Id. at 34-35 (emphasis

added) (Pet. App. 28).

2. Pope JOHN PAUL II, APOSTOLIC CONSTITUTION Ex CoRDE

ECCLESIAE OF THE SUPREME PonTiFF (St. Paul Books & Media 1991).

3. Procedural History

In the Indiana courts, the Diocese defendants argued that

the conduct which formed the basis of Brazauskas’

blacklisting claim occurred pursuant to Fr. Martelli’s and

Bishop D’Arcy’s obligations under, and efforts to comply

with, religious law, i.e., Ex Corde Ecclesiae. Therefore, the

First Amendment to the United States Constitution precluded

secular court review of that conduct under Indiana’s

blacklisting law. U.S. Const. amend. I. The trial court granted

the Diocese defendants’ motion to dismiss for lack of subject

matter jurisdiction. Brazauskas v. Ft. Wayne-S. Bend Diocese,

Inc., No. 71D07-9302-CP-10017 (St. Joseph Super. Ct.

Feb. 7, 2001) (Pet. App. 32). The Indiana Court of Appeals

affirmed the trial court, concluding that because the Diocese

defendants’ actions had a doctrinal basis, a secular court could

not review those actions. Brazauskas v. Ft. Wayne-S. Bend

Diocese, Inc., 755 N.E.2d 201, 208 (Ind. Ct. App. 2001)

(Pet. App. 19, 31).

Brazauskas appealed to the Indiana Supreme. Court.

That court reversed the dismissal of the case for lack of

subject matter jurisdiction, concluding that secular courts

could review religious directives for limited purposes;

however, the court ultimately found in favor of the Diocese

defendants. Brazauskas v. Ft. Wayne-S. Bend Diocese, Inc.

(“Brazauskas”’), 796 N.E.2d 286, 292-93 (Ind. 2003) (citation

omitted) (Pet. App. 1, 10-11). It remanded the case for entry

of summary judgment in their favor. Brazauskas, 796 N.E.2d

at 294 (Pet. App. 14).

In rendering its decision, the Indiana Supreme Court

applied and interpreted the version of the Indiana blacklisting

statute in effect when Brazauskas’ claim arose in 1993.

5

Id. at 290-91 (Pet. App. 6-7). The court found that Brazauskas

based “her claim primarily on a letter Father Martelli wrote

more than six months before she applied for the PCL job,

and on influence allegedly exerted by the Bishop that

prompted Father Malloy to deny Brazauskas the position.”

Id. at 291 (Pet. App. 8). As to Fr. Martelli’s letter, the Court

found Brazauskas failed to explain “how such a letter could

support a reasonable inference that by making others aware

of Trembath’s accusations Father Martelli prevented her from

getting the PCL position.” Jd. at 292 (Pet. App. 9). The court

found that Brazauskas’ allegations against the Bishop

were “on similarly shaky factual ground[,]” observing that

“{bjoth Bishop D’Arcy and Father Malloy deny that they

ever discussed the PCL position, much less Brazauskas’

candidacy.” Jd. (Pet. App. 9). The court found that

Brazauskas’ evidence, such as records of phone calls from

the Bishop to Notre Dame officials was “at most marginally

sufficient to raise a genuine issue of material fact... .” Jd.

(Pet. App. 9).

The Indiana Supreme Court found that besides the

weakness of Brazauskas’ evidence, religious motivation

behind Bishop D’ Arcy’s and Fr. Martelli’s actions precluded

statutory blacklisting liability under the facts of the case.

It found that Ex Corde Ecclesiae established

that higher church authority (namely, the Pope)

has directed Catholic universities such as Notre

Dame and local Catholic diocese officials to

cooperate closely, communicate, and develop an

environment of mutual trust. Bishop D’ Arcy and

other diocesan personnel would therefore be

acting in accordance with ecclesiastical directive

in keeping Father Malloy apprised of diocesan

8

developments, including pending lawsuits, and in

coordinating with him on administrative and

policy matters.

Id. at 293 (Pet. App. 11). The court concluded that under

the facts of the case, the Free Exercise Clause entitled the

Diocese defendants to Summary Judgment on Brazauskas’

blacklisting and tortious interference claims:

Brazauskas would have us apply the blacklisting

statute and tort law to penalize communication and

coordination among church officials (all answerable

to higher church authority that has directed them to

work cooperatively) on a matter of internal church

policy and administration that did not culminate in

any illegal act. Such a holding would violate the

church autonomy doctrine and run counter to the

Court’s declaration in Cantwell v. Connecticut, 310

U.S. 296, 307 . . . (1940): “the fundamental law

declares the interest of the United States that the free

exercise of religion be not prohibited and that

freedom to communicate information and opinion

be not abridged.”

Id. at 294 (footnote omitted) (emphasis added) (Pet. App.

13).

9

REASONS FOR DENYING THE PETITION

1. Nonational or public interest will be served by review

of this case because it involves the vindication of a

state-created right under the former version of a state

statute.

Brazauskas’ claim against the Diocese defendants relies

solely on state law. She has not asserted any violation of

her federal constitutional rights, only her right not to be

“blacklisted” under the Indiana blacklisting statute.

The manner in which a federal constitutional issue is

implicated is in the defense of Brazauskas’ claim—the

Indiana Supreme Court interpreted Indiana’s blacklisting

statute to preclude her claim because of First Amendment

restrictions.

Additionally, Brazauskas asserted her claim under a

former version of the Indiana blacklisting statute. As the

Indiana Supreme Court observed, Indiana’s blacklisting

statute in 1993 read almost the same as it did at its initial

enactment in 1889. Brazauskas, 796 N.E.2d at 290 (Pet. App.

6). In 1995, the Indiana legislature added the following

exception:

An employer that discloses information about

a current or former employee is immune from civil

liability for the disclosure and the consequences

proximately caused by the disclosure, unless it is

proven by a preponderance of the evidence that

the information disclosed was known to be false

at the time the disclosure was made.

Id. at 291 (quoting Inp. Cope Ann. § 22-5-3-1(b) (West 2002))

(Pet. App. 7). The Indiana Supreme Court found: “Brazauskas

10

does not claim that any of the alleged disclosures that led to

her denial of the PCL position were false. She would therefore

have no claim for blacklisting under the revised statute” and

there would be “no need to reach the Diocese defendants’

constitutional argument.” Brazauskas, 796 N.E.2d at 291

(citations omitted) (Pet. App. 7).

This Court has dismissed a writ of certiorari when the

issue the case presented was not imporiant to the public

or likely to recur. In Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70 (1955), this Court initially

granted certiorari to consider the petitioner’s claim that a

cemetery violated her constitutional rights by refusing to bury

her husband pursuant to a contract which prohibited burial

of non-Caucasians. After granting certiorari, this Court

learned that the State of Iowa had passed a subsequent statute

that voided such contracts. This court held:

A federal question raised by a petitioner may

be “of substance” in the sense that, abstractly

considered, it may present an intellectually

interesting and solid problem. But this court does

not sit to satisfy a scholarly interest in such issues.

Nor does it sit for the benefit of the particular

litigants.

Rice, 349 U.S. at 74 (citations omitted). Citing former

Supreme Court Rule 19, this Court held: “‘Special and

important reasons’ imply a reach to a problem beyond the -

academic or episodic. This is especially true where the issues

involved reach constitutional dimensions, for then there

comes into play regard for the court’s duty to avoid a decision

of constitutional issues unless avoidance becomes evasion.”

Id. (citation omitted). This Court found that had the

1]

subsequent Iowa statute been properly brought to its attention,

the case would have assumed “an isolated significance[,]”

and concluded that “in the absence of compelling reason”

the Court should not dispose of a case “when time may further

illumine or completely outmode the issues in dispute.”

Id. at 77. Quoting its decision in Layne & Bowler Corp. v.

Western Well Works, Inc., this Court held:

it is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is

important to the public as distinguished from that

of the parties, and in cases where there is a real

and embarrassing conflict of opinion and authority

between the circuit courts of appeal.

Rice, 349 U.S. at 79 (quoting Layne & Bowler Corp. v.

Western Well Works, Inc., 261 U.S. 387, 393 (1923)).

Similarly, in Ticor Title Ins. Co. v. Brown, 511 U.S. 117

(1994), this Court observed that “our resolution of the posited

constitutional question may be quite unnecessary in law, and

of virtually no practical consequence in fact, except with

respect to these particular litigants[,]” and that “[e]ven if the

constitutional question presented is hypothetical as to

everyone else, it would seem to be a great practical

importance to these litigants. But that is ordinarily not

sufficient reason for our granting certiorari ....” Ticor, 511

U.S. at 121-22. In Bartlett v. Stephenson, 535 U.S. 1301

(2002), this Court observed that no reasonable probability

existed that four Members of the Court would vote to grant

certiorari “to resolve what is largely a dispute about the

meaning of a single DOJ letter from 1981.” Bartlett, 535

U.S. at 1304 (citing Lucas v. Townsend, 486 U.S. 1301, 1304

12

(1988) (Kennedy, J., in chambers)). The Court concluded that

the issue “which has few if any ramifications beyond the

instant case, does not satisfy any of the criteria for the exercise

of this court’s discretionary jurisdiction. See this Court’s Rule

10.” Bartlett, 535 U.S. at 1304.

Review of the issues Brazauskas raises will have few, if

any, ramifications beyond this case in light of the 1995

amendment. This case does not involve a declaration that a

law of broad application is unconstitutional under the First

Amendment, or vindication of religious institutions’ free

exercise rights in a far-reaching manner. Rather, this is a state

law employment case, brought under the pre-1995 Indiana

blacklisting statute, the interpretation of which was the proper

province of the Indiana Supreme Court. To the extent the

Free Exercise Clause was invoked, the Indiana Supreme

Court relied on it to curtail the statute’s applicability to the

Diocese defendants under the particular facts. The pre-1995

Indiana blacklisting statute did not have a broad application.

It was unique to Indiana.’ Furthermore, that version of the

statute is no longer in effect. As the Indiana Supreme Court

noted, Brazauskas would have no claim under the 1995

amendment, and it would be unnecessary to address the

Diocese defendants’ constitutional argument. Therefore, the

issues raised by this case are unlikely to recur.‘

3. Twenty-five states have laws dealing with “blacklisting” and

those vary greatly from state to state. See 48 Am. Jur. 2p Labor &

Labor Relations § 669 (2003), see also Edward M. Cramp,

Annotation, Validity, Construction, and Operation of State

Blacklisting Statutes, 95 A.L.R. Sth 1 (2004).

4. No other cases appear to address Indiana blacklisting claims

against religious organizations. The statute in general is not frequently

(Cont'd)

13

Finally, the Indiana Supreme Court did not engage in an

expansive application of the Free Exercise Clause to the

blacklisting statute. It specifically limited its holding to the

facts of Brazauskas’ case. Brazauskas 796 N.E.2d at 293-94

(Pet. App. 13-14). Review of this case will therefore result

in this Court reexamining those facts and the former Indiana

blacklisting statute—issues which will have little effect

beyond this case and which will not constitute a constructive

use of this Court’s time and resources. The issues this case

raises, while important to the particular litigants, are not of

public importance warranting this Court’s review.

Even assuming arguendo that the Indiana Supreme

Court’s reasoning was wrong, reversal of it will only correct

a state court’s mistaken application of established

constitutional doctrines to a former state law. “A petition for

a writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication

of a properly stated rule of law.” Sup. Ct. R. 10. This Court

has indicated that it is not a tribunal of errors that sits to

correct every error of a lower court: “[t]his Court’s review

_.. is discretionary and depends on numerous factors other

than the perceived correctness of the judgment we are asked

to review,” Ross v. Moffitt, 417 U.S. 600, 616-17 (1974).

(Cont’d)

litigated. In considering a claim in 2000, the Indiana Court of Appeals

observed that no Indiana state court had “addressed any claim under the

Blacklisting statute since our supreme court in 1904.” Burk v. Heritage

Food Serv. Equip., Inc., 737 N.E.2d 803 (Ind. Ct. App. 2000). Only a

few Indiana state or federal courts have ruled on the merits of such

claims: See pre-1995 claims: Hull v. Central Trans., Inc., 628 F. Supp.

784 (N.D. Ind. 1986); Wabash Railroad Co. v. Young, 162 Ind. 102, 69

N.E.2d 1003 (Ind. 1904). See post-1995 claims: Butts v. OCE-USA, Inc.,

9 F. Supp. 2d 1007 (S.D. Ind. 1998); Bridgestone/Firestone, Inc. v.

Lockhart, 5 F. Supp. 2d 667 (S.D. Ind. 1997).

14

For the reasons above, this case does not implicate the type

of far-reaching constitutional issues that necessitate this Court’s

review.

2. The Indiana Supreme Court did not deviate from

established precedent regarding church autonomy, and

did not render a significant church autonomy decision,

warranting review.

The Indiana Supreme Court’s application of the church

autonomy doctrine to Brazauskas’ blacklisting claim was not a

radical departure from or expansion of that doctrine. Rather,

the Indiana Supreme Court’s application was consistent with

this Court’s decisions establishing religious organizations’

freedom to manage internal, ecclesiastical matters. See Watson

v. Jones, 80 U.S. (13 Wall.) 679, 727 (1871) (“. . . whenever the

questions of discipline, or of faith, or ecclesiastical rule, custom,

or law have been decided by the highest of these church

judicatories to which the matter has been carried, the legal

tribunals must accept such decisions as final, and as binding on

them. . . .”); Gonzales v. Roman Catholic Archbishop, 280 U.S.

1, 16 (1929) (“In the absence of fraud, collusion, or arbitrariness,

the decisions of the proper church tribunals on matters purely

ecclesiastical ... are accepted in litigation before the secular

courts as conclusive. . . .”); Kedroff v. St. Nicholas Cathedral,

344 U.S. 94, 116 (1952) (holding that religious organizations

have “power to decide for themselves, free from state

interference, matters of church government as well as those of

faith and doctrine.”); Kreshik v. St. Nicholas Cathedral of

Russian Orthodox Church, 363 U.S. 190, 191 (1960)

(companion case to Kedroff; held that neither state legislature,

nor state judiciary could interfere in matters of church

government, faith, and doctrine); Serbian Eastern Orthodox

Diocese v. Milivojevich, 426 U.S. 696, 708-09 (1976)

15

(civil courts deciding “religious law [governing church polity]

_.. would violate the First Amendment in much the same

manner as civil determination of religious doctrine.”)

(quoting Md. & Va. Churches v. Sharpsburg Church, 396 US.

367, 369 (1970) (Brennan, J., concurring)).

The Indiana Supreme Court’s decision was also

consistent with the federal circuit courts, which have relied

_ on church autonomy in recent cases. The Tenth Circuit’s

decision in Bryce v. Episcopal Church, 289 F.3d 648

(10" Cir. 2002) provided a thorough discussion of the church

autonomy doctrine. Bryce involved a suit by two ministers

for sexual harassment against the Episcopal Church after it_

terminated one of them for having a homosexual relationship

with the other. As evidence of the harassment, the ministers

relied on communications by Church leaders, to parishioners

and each other, regarding homosexuality and the ministers’

relationship. Citing this Court’s line of decisions, and a

variety of circuit court decisions, the Bryce court first

concluded that the church autonomy doctrine remained viable

after the decision in Employment Div. v. Smith, 494 U.S. 872

(1990). It found that the post-Smith circuit court cases relied

“on a long line of Supreme Court cases affirming the church

autonomy doctrine . . .. These [circuit court] cases’ rationale

extends beyond the specific ministerial exception to the

church autonomy doctrine generally, and we therefore find

that the church autonomy doctrine remains viable after

Smith.” Bryce 289 F.3d at 656-57 (citing EEOC v. Roman

Catholic Diocese, 213 F.3d 795, 800 n.* (4" Cir. 2000);

Gellington v. Christian Methodist Episcopal Church, 203

F.3d 1299, 1302-04 (11" Cir. 2000); Combs v. Central Tex.

Annual Conf. of the United Methodist Church, 173 F.3d 343,

348-50 (5 Cir. 1999); EEOC v. Catholic Univ. of Amer., 83

F.3d 455, 461-63 (D.C. Cir. 1996)).

16

The Bryce court then observed that “the church autonomy

doctrine is not without limits,” and that churches are still

liable for tort or contract violations arising from conduct that

has no religious motivation. /d. at €57 (citations omitted).

Relying on this Court’s decision in *isconsin v. Yoder, the

Tenth Circuit observed that the “threshold inquiry is whether

the alleged misconduct is ‘rooted in religious belief.’” Jd.

(quoting Wisconsin v. Yoder, 406 U.S. 205 (1972)). The court

concluded that the allegedly harassing conduct of the church

officials was “rooted in religious belief” because it consisted

of communications between Church leaders, and Church

leaders and parishioners, on a matter of Church governance

and doctrine, specifically, Church law concerning marriage

and homosexuality. Bryce, 289 F.3d at 658. The court held:

The church autonomy doctrine is rooted in

protection of the First Amendment rights of the

church to discuss church doctrine and policy

freely. The applicability of the doctrine does not

focus upon the relationship between the church

and [plaintiff]. It focuses instead on the right of

the church to engage freely in ecclesiastical

discussions with members and non-members.

Id.

The Indiana Supreme Court’s application of the church

autonomy doctrine to the blacklisting statute was consistent

with the precedents of this Court and the circuit courts.

The Indiana court correctly recognized that churches have

been held free from inierference in matters of internal

governance under such precedents. Also, consistent with

precedent, the Indiana court assessed whether the alleged

blacklisting conduct was “rooted in religious belief,” by

17

finding sufficient facts showing that Bishop D’Arcy’s and

Fr. Martelli’s communications and conduct were religiously

motivated under Ex Corde Ecclesiae, which embodied a

matter of internal church governance—the Canon Law

controlling the relationship between a Catholic diocese and

local Catholic university. The Indiana Supreme Court

properly concluded that liability for blacklisting could not

be imposed on the Diocese defendants for such religiously

motivated conduct, particularly where no direct evidence of

unlawful secular conduct was shown. This reasoning is

consistent with the above cases describing and applying the

church autonomy doctrine. It is also consistent with this

Court’s decision in Cantwell v. Connecticut, 310 U.S. 296

(1940), which overturned a person’s conviction for breach

of the peace where the only conduct shown was the protected

communication of religious views and no unlawful secular

conduct—such as threats, abuse, or profanity—was

established.

The Indiana Supreme Court’s application of the church

autonomy doctrine was not overly broad or expansive.

The Indiana court did not hold that Ex Corde Ecclesiae

immunized the Diocese defendants against every legal

claim. To the contrary, consistent with the above precedents,

it limited its decision to the facts of Brazauskas’ case.

Brazauskas, 796 N.E.2d at 293-94 (Pet. App. 13-14). Quoting

the New Jersey Supreme Court, the Indiana Supreme Court

held that: “‘The First Amendment does not immunize every

legal claim against a religious institution and its members.

The analysis in each case is fact-sensitive and claim specific,

requiring an assessment of every issue raised in terms of

doctrinal and administrative intrusion and entanglement.’”

Id. (quoting McKelvey v. Pierce, 800 A.2d 840, 844

(N.J. 2002)) (Pet. App. 13-14). As an example, the court

18

observed that the Free Exercise Clause would not prevent

prosecution for an agreement to commit a felony “even if

that other person is another church member or official and

the agreement implicates ecclesiastical issues, if the state

also proves an overt act in furtherance of that agreement in

accordance with Indiana’s conspiracy statute.” Brazauskas,

796 N.E.2d 294 n.6 (citation omitted) (Pet. App. 13 n.6).

The Indiana Supreme Court’s decision was consistent

with the existence, application, and limitations of the church

autonomy doctrine. It was not a radical departure from, or

expansion of, what this Court, or other courts, have held.

Furthermore, The Indiana Supreme Court’s decision was not

a significant church autonomy decision that would render

this case one of public importance. As discussed above,

church autonomy arose as a defense to Brazauskas’ state law

blacklisting claim, and the Indiana Supreme Court limited

the doctrine’s application to that claim only, under the

particular facts of the case. Therefore, the decision’s impact

was limited to how church autonomy affected factually-

similar blacklisting claims in Indiana, and would have no

effect on federal or other state jurisdictions. Furthermore, it

would have little or no impact on Indiana blacklisting claims

because the version of the statute in question is no longer in

effect. This case is simply not a seminal church autonomy

decision that warrants this Court’s review.

19

3. This case does not present compelling grounds for

this Court to reexamine the hybrid exception because

the Indiana Supreme Court’s decision focused on

church autonomy.

This case is not a significant decision concerning

“hybrid situations” discussed in Employment Div. v. Smith,

494 U.S. 872 (1990):

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... .

The present case does not present such

a hybrid situation, but a free exercise claim

unconnected with any communicative activity or

parental right.

Smith, 494 U.S. at 881-82 (citations omitted) (footnote

omitted). The Indiana Supreme Court did quote from Smith

in discussing how the facts of Brazauskas’ case were

distinguishable from the facts in Smith; however, its decision

ultimately focused on church autonomy.

The Indiana Supreme Court observed: “There is an

important and relevant limitation in the Smith decision.

Justice Scalia specifically noted that the case presented

‘a free exercise claim unconnected with any communicative

activity.’ Jd. at 882.... Here, in contrast, the challenged

activity was communicative.” Brazauskas, 796 N.E.2d at 293

20

(footnote omitted) (Pet. App. 11). Beyond mentioning this

distinguishing factor, the Indiana Supreme Court issued no

decision concerning the hybrid exception’s existence or

application. The remainder of the court’s decision discussed

the church autonomy doctrine, concluding that “the Free

Exercise Clause entitles the defendants to summary

judgment... .” Jd. at 293-94 (Pet. App. 12-14). One comment

regarding “communicative activity” does not render the

Indiana Supreme Court’s decision a compelling hybrid case

under Supreme Court Ruie 10. Review of the court’s decision

will not substantially impact cases that do directly address

the hybrid exception.

To the extent the Indiana Supreme Court relied on Smith's

statement concerning “hybrid situations,” its decision was

correct. The court accurately observed, pursuant to Smith,

that Brazauskas’ case against the Diocese defendants involved

communicative activity between Church officials, making

it factually different from situations in which individuals

sought to engage in illegal conduct as a religious practice.

This conclusion comports with the language in Smith

describing “hybrid situations.” While the Indiana court

therefore correctly applied Smith’s language, it also correctly

concluded that church autonomy issues, outside of the Smith

decision, predominated: “Smith is distinguishable in another

important respect, because it did not implicate the church

autonomy doctrine.” Jd. at 293 (Pet. App. 12). Even the cases

that Smith cited as examples of hybrid situations involving

“communicative activity” did not concern communications

relating to the internal governance of a religious organization.

Smith, 494 U.S. at 881 (citing Cantwell v. Connecticut, 310

U.S. 296, 304-07 (1940) (communicative activity consisted

of religious solicitations by individuals); Murdock vy.

Pennsylvania, 319 U.S. 105 (1943) (communicative activity

consisted of dissemination of religious ideas)).

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21

Because this case involved communications between

church officials relating to a matter of internal church

governance, the Indiana Supreme Court correctly recognized

that it posed issues other than those discussed in

Smith, leading the court to focus on the church autonomy

doctrine rather than the hybrid exception. Therefore, these

distinguishing issues render this case inappropriate as a

prototype for clarification of the hybrid exception, or for

resolving any alleged discrepancy between the circuits’

application of the exception. This point is further illustrated

by the difference between this case, and the circuit court cases

dealing with the hybrid exception that Brazauskas cites in

her Petition. Not only is the Indiana Supreme Court’s decision

not in conflict with those cases, it is simply inapposite to

them. They did not involve church officials communicating

on matters of internal church governance, faith, or doctrine.

Instead, they involved individuals who were asserting free

exercise claims and coupling them with other constitutional

claims. The courts considered the application of the hybrid

exception in light of those other constitutional claims.

See Knight v. State of Conn., 275 F.3d 156, 166-67 (2d Cir.

2001) (state agency employees disciplined for evangelizing

to agency clients failed to state free speech hybrid claim

because different legal test applied to public employees);

Thomas v. Anchorage Equal Rights Com’n, 165 F.3d 692,

withdrawn, reh’g granted, 192 F.3d 1208 (9" Cir. 1999),

vacated en banc, 220 F.3d 1134 (9" Cir. 2000), cert. denied,

531 U.S. 1143 (2001) (rental property owners’ Fifth

Amendment “takings” claims, protesting ordinance requiring

rentals to unmarried couples, constituted “hybrid claims”

under “colorable claim” approach; however, opinion was

withdrawn, and later en banc opinion held case not ripe for

review); *. anson v. Guthrie Indep. Sch. Dist., 135 F.3d 694,

700 (10" Cir. 1998) (rejected claim by home-schooled

22

student’s parents that refusal to let student attend public

school part time violated free exercise/right to control child’s

education; held that a hybrid claim: “at least requires a

colorable showing of infringement of recognized and specific

constitutional rights, rather than the mere invocation of a

general right....”); Brown v. Hot, Sexy and Safer

Productions, Inc., 68 F.3d 525, 539 (1% Cir. 1995), cert.

denied, 516 U.S. 1159 (1996) (rejected claim by students’

parents against school for requiring students’ attendance at

sexually explicit AIDS awareness program because free

exercise not “conjoined with an independently protected

constitutional protection.”); Kissinger v. Bd. of Trustees of

Ohio St. Univ., 5 F.3d 177, 180 (6" Cir. 1993) (rejecting the

hybrid exception in case brought by veterinary student

demanding that she be excused from a required course on

several constitutional grounds).

In this case, the Diocese defendants neither asserted a

free exercise claim or a companion “hybrid” claim; they

raised the First Amendment only as a defense to Brazauskas’

state law claims—a defense based on notions of church

autonomy. This case therefore involves different issues from

the cases Brazauskas cites. It does not relate to those cases

and is not an appropriate case for resolving any alleged

discrepancies among their interpretations of the hybrid

exception.

The only case Brazauskas cites which relates to the

Indiana Supreme Court’s decision is EEOC v. Catholic Univ.,

83 F.3d 455 (D.C. Cir. 1996), because it involved a religious

organization defending itself against a sex discrimination

claim. The D.C. Circuit rejected the EEOC’s and plaintiff’s

claim, based primarily on the university’s First Amendment

defense under the ministerial exception/church autonomy

23

doctrine. Catholic Univ, 83 F.3d at 462-66. The D.C. Circuit

held secondarily that, absent ministerial exception grounds,

the university would have a defense that the case was a

“hybrid situation” described in Smith because it involved both

free exercise and excessive entanglement issues. /d. at 467.

- This conclusion was consistent with Smith’s discussion of

what constituted a hybrid situation. The Indiana Supreme

Court’s decision is not in conflict with Catholic University s

holding; rather, it is consistent. The court focused on the

church autonomy doctrine as the primary issue, but also

noticed the presence of “communicative activity” as another

distinguishing factor under Smith. Because the Indiana

Supreme Court’s decision properly focused on church

autonomy, it is not a seminal hybrid case of public importance

that would warrant this Court’s reexamining the hybrid

exception.

Even assuming arguendo that the Indiana Supreme

Court’s statement regarding “communicative activity” was

wrong, reversal will have no effect, because the court relied

on the church autonomy doctrine as other grounds for its

decision. Even if the Indiana court’s decision was reversed

in its entirety, its effect would be limited to reinstating

Brazauskas’ state law blacklisting claim under a former

version of Indiana’s blacklisting statute. As discussed above,

this result will not have far reaching effects, even in Indiana.

Therefore, this case does noi merit review.

24

CONCLUSION

For the reasons above, Brazauskas’ Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

WILLIAM T. Hopkins, JR.

Counsel of Record

KAREN A. FESTA

BARNES & THORNBURG

600 One Summit Square

Fort Wayne, Indiana 46802

(260) 423-9440

Attorneys for Respondents