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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 902

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0892%3A2. Public record. Not legal advice.