Ballaban v. Bloomington Jewish Cmty., Inc.

• Decision Date: 17 January 2013
• Docket Number: No. 53A01–1207–CT–315.,53A01–1207–CT–315.
• Citation: 982 N.E.2d 329
• Parties: Steven A. BALLABAN, Appellant, v. BLOOMINGTON JEWISH COMMUNITY, INC., a/k/a Congregation Beth Shalom, Paul Eisenberg, Individually and as President, Judith Rose, Individually and as Vice President, Sarah Wasserman, Individually and as Treasurer, Lynne Foster Shifriss, Individually and as Past President, and Roberta “Didi” Kerler, Individually and as Director of Gan Shalom, Appellees.
• Court: Indiana Appellate Court

982 N.E.2d 329

Steven A. BALLABAN, Appellant,
v.
BLOOMINGTON JEWISH COMMUNITY, INC., a/k/a Congregation Beth Shalom, Paul Eisenberg, Individually and as President, Judith Rose, Individually and as Vice President, Sarah Wasserman, Individually and as Treasurer, Lynne Foster Shifriss, Individually and as Past President, and Roberta “Didi” Kerler, Individually and as Director of Gan Shalom, Appellees.

No. 53A01–1207–CT–315.

Court of Appeals of Indiana.

Jan. 17, 2013.

[982 N.E.2d 331]

Steven A. Ballaban, Bloomington, IN, Appellant Pro Se.

Geoffrey M. Grodner, Jennifer M. Romaniuk, Jared S. Sunday, Mallor Grodner LLP, Bloomington, IN, Attorneys for Appellees.

OPINION
BROWN, Judge.

Steven A. Ballaban, pro se, appeals the trial court's denial of his motion to correct error and the court's summary judgment ruling in favor of Bloomington Jewish Community, Inc., a/k/a Congregation Beth Shalom (“Beth Shalom”), Paul Eisenberg, Judith Rose, Sarah Wasserman, Lynne Foster Shifriss, and Roberta “Didi” Kerler (collectively, Appellees). Ballaban raises one issue, which we revise and restate as whether the court abused its discretion in denying his motion to correct error or erred in granting summary judgment in favor of Appellees. Appellees request appellate attorney fees pursuant to Ind. Appellate Rule 66(E). We affirm and deny Appellees' request for attorney fees.

FACTS AND PROCEDURAL HISTORY

Ballaban entered into an employment agreement with Beth Shalom, a religious institution organized under the laws of the State of Indiana with a congregation comprised of members of the Jewish faith, which was effective July 1, 2009, pursuant to which Ballaban would serve as rabbi for Beth Shalom for three years. Pursuant to the employment agreement, Ballaban and Beth Shalom agreed that the relationship would be guided according to the Guidelines for Rabbinical–Congregational Relationships (the “Guidelines”).

In early 2010, Ballaban received information regarding possible improper conduct by a teacher. According to e-mail messages contained in Ballaban's appellant's supplemental appendix, the improper conduct reported to Ballaban by a congregation member consisted of a teacher massaging the backs, chest, and stomach area of children under their clothing. Ballaban exchanged e-mail messages with several individuals regarding the potential concern.

Beth Shalom terminated Ballaban's employment with compensation through May

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18, 2010. Beth Shalom, by its President Paul Eisenberg, provided a letter to Ballaban indicating the reasons for the decision of the Board of Directors of Beth Shalom, including the Board's view that Ballaban was unable or unwilling to fulfill the expectations for rabbinic behavior, that Ballaban knowingly and intentionally placed the tax exempt status of Beth Shalom at risk by accepting a donation intended for a single recipient to whom the donor was related and assuring the donor that the gift would be tax deductible, that Ballaban breached the Guidelines' sacred duty of confidence on at least two occasions by forwarding e-mail messages from members of the congregation and his responses to members of the Personnel Committee, and that the Board had received complaints concerning Ballaban's conduct including angry outbursts and generally hostile behavior which in part had led Beth Shalom to face the resignation of employees who were unable to work peacefully with Ballaban.

Ballaban filed a complaint against Appellees on May 23, 2011, and an amended complaint on August 24, 2011.¹ On April 13, 2012, Appellees filed a motion for summary judgment together with a designation of evidence and a memorandum in support of the motion. In the memorandum, Appellees argued that the congregation expected Ballaban, as its spiritual leader, to serve as a role model by abiding by the highest moral values and exemplifying the ideals of the Jewish faith, that difficulties surfaced within a few months, that congregational leaders counseled Ballaban on issues related to financial impropriety, breaches of rabbi-congregant confidentiality, and instances of angry and intimidating interactions with Beth Shalom employees and congregants, and that when it became apparent that Ballaban was unable to fulfill Beth Shalom's expectations for rabbinic behavior, it terminated his employment as rabbi. Appellees further argued that the Free Exercise and Establishment Clauses of the First Amendment protect Beth Shalom's right to choose who will personify its beliefs and minister to its faithful and prohibit judicial intervention in Ballaban's claims, that both the United States Supreme Court and the Indiana courts have applied a “ministerial exception” to preclude government interference with the employment relationships between religious institutions and their ministers, that Ballaban's contract included a section in which the parties agreed to be bound by guidelines sanctioned by a governing body within the Jewish religion, and that to resolve Ballaban's breach of contract claim, the court would not only be required to examine Beth Shalom's internal governance but also to interpret and apply its Guidelines. Appellees also argued that Ballaban's claims for negligent failure to supervise, defamation, and invasion of privacy cannot be resolved without excessive entanglement in church doctrine and must be dismissed.

On April 16, 2012, Ballaban filed a response and designation of evidence in opposition to Appellees' summary judgment motion.² From May 7, 2012 to June 4, 2012, Ballaban filed a supplemental response, a supplemental memorandum, and several supplemental designations of evidence. The documents in the appellant's supplemental appendix filed by Ballaban and identified as his designation of materials

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include copies of e-mail messages between Ballaban and others regarding in part possible concerns related to the alleged actions of a teacher with children and the response of Beth Shalom and its Board to the concerns. The documents identified as Ballaban's supplemental responses include a form investigation report from the Indiana Department of Child Services (“DCS”) dated August 3, 2010 indicating that an allegation of child molesting had been made and that DCS had concluded that the abuse allegations were unsubstantiated. The supplemental responses also included an affidavit of the records custodian of the Bloomington Police Department indicating that no case reports or calls for service were found regarding any investigation of child abuse. On May 17, 2012, Appellees filed a reply in support of its summary judgment motion arguing that the ministerial exception applies to Ballaban's claims.

On June 5, 2012, the trial court held a hearing on Appellees' motion for summary judgment, at which Appellees appeared by counsel and Ballaban appeared pro se, and the court heard arguments on the motion and took the matter under advisement.³ On June 19, 2012, the court entered an eight-page order granting Appellees' motion for summary judgment. In the order, the court stated that “the crux of this case is whether or not this court can compel [Beth Shalom] to retain [Ballaban] as their rabbi, or pay damages to him if it does not.” Appellees' Appendix at 22. The court noted that the United States Supreme Court recently found that its decisions “confirm that it is impermissible for the government to contradict a church's determination of who can act as its ministers” and “both Religion Clauses [of the First Amendment] bar the government from interfering with the decision of a religious group to fire one of its ministers.” Id. (citing Hosanna–Tabor Evangelical Lutheran Church and Sch. v. EEOC, ––– U.S. ––––, 132 S.Ct. 694, 702, 704, 181 L.Ed.2d 650 (2012)) (emphasis in original). The court further noted that the Indiana Supreme Court and this court have held that the ministerial exception applies to breach of contract cases unless purely secular issues are involved. Id. The court stated that “[a]pparently recognizing that his claims against Beth Shalom are barred by the principles of church-state separation, [Ballaban] claims that Beth Shalom fired him in retaliation for reporting child abuse” and that “the court should adjudicate [his] claim that he was dismissed for [an] improper purpose.” Id at 23. The court found that “it seems likely that Indiana law would prohibit a discharge in retaliation for reporting child abuse” but that Ballaban “has not designated admissible evidence from which the court could conclude that child abuse occurred, or that [Ballaban] reported child abuse” to DCS. Id The court concluded that “[a]ssuming that there is an exception for a minister discharged for reporting child abuse, [Ballaban] has failed to designate any evidence that would create such an exception in this case” and that Appellees were entitled to summary judgment on Ballaban's claims. Id. at 24.

Ballaban filed a motion to correct error in which he argued that the trial court had improperly interpreted the child abuse reporting statutes found at Ind.Code §§ 31–33–5 and –6 and the evidence presented. The court denied Ballaban's motion to correct error.

ISSUE AND STANDARD OF REVIEW

The issue is whether the trial court abused its discretion in denying Ballaban's

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motion to correct error or erred in granting summary judgment in favor of Appellees and against Ballaban.

We note that although Ballaban is proceeding pro se, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App.2004), trans. denied. This court will not “indulge in any benevolent presumptions on [their] behalf, or waive any rule for the orderly and proper conduct of [their] appeal.” Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 679 n. 1 (Ind.Ct.App.2009) (citation omitted), reh'g denied, trans. denied.

Generally, we review rulings on motions to correct error for an...