Embry v. O'BANNON

• Decision Date: 29 October 2003
• Docket Number: No. 49S02-0310-CV-479.,49S02-0310-CV-479.
• Citation: 798 N.E.2d 157
• Parties: Veronica EMBRY, Thomas G. Burns, George Nickas, and David Hoffman, Appellants (Plaintiffs below), v. Frank O'BANNON, in his official capacity as Governor of Indiana, and Suellen Reed, in her official capacity as Superintendent of Public Instruction for the State of Indiana, Appellees (Defendants below).
• Court: Indiana Supreme Court

798 N.E.2d 157

Veronica EMBRY, Thomas G. Burns, George Nickas, and David Hoffman, Appellants (Plaintiffs below), v. Frank O'BANNON, in his official capacity as Governor of Indiana, and Suellen Reed, in her official capacity as Superintendent of Public Instruction for the State of Indiana, Appellees (Defendants below).

No. 49S02-0310-CV-479.

Supreme Court of Indiana.

October 29, 2003.

Kenneth J. Falk Indianapolis, IN, Attorney for Appellants.

Steve Carter, Attorney General of Indiana, Thomas M. Fisher, Special Counsel, Laureanne Nordstrom, Deputy Attorney General, Ellen H. Meilaender, Deputy Attorney General, Attorneys for Appellees.

DICKSON, Justice.

This is an appeal from a summary judgment denying relief in an action brought by four Indiana taxpayers against Governor Frank O'Bannon and Superintendent of Public Instruction Suellen Reed, head of the Indiana Department of Education (collectively termed "the State"). The taxpayers' lawsuit challenges the "dual-enrollment" process whereby the State provides public funds "which are used to pay teachers who teach classes in parochial schools and which are used to provide such things as internet services to parochial schools." Br. of Appellants at 10. The taxpayers contend that this practice violates Article 1, Section 6 of the Indiana Constitution, which states: "No money shall be drawn from the treasury, for the benefit of any religious or theological institution." (Hereafter "Section 6.") Because this dual-enrollment process does not provide any substantial benefit to the participating parochial schools or directly fund activities of a religious nature, we hold that it does not violate Section 6, and we affirm the judgment of the trial court.

In granting summary judgment for the State, the trial court made extensive findings of fact and conclusions of law and concluded both that the plaintiffs/taxpayers did not have standing to bring their claim and that, even if they had standing, the challenged practice does not violate Section 6. Affirming solely on grounds of lack of standing, the Court of Appeals did not address the constitutional claim. Embry v. O'Bannon, 770 N.E.2d 943 (Ind.Ct. App.2002). The plaintiffs petitioned for transfer.

Under Indiana Code § 21-3-4.5-1, a portion of the public funding allocated to each Indiana public school corporation is directly proportional to that corporation's "average daily membership" or "ADM." Students enrolled in private schools may be counted in a public school corporation's ADM if the student also: 1) enrolls in the public school, 2) has legal settlement in the school corporation, and 3) receives instructional services from the school corporation. Ind.Code § 21-3-1.6-1.2. The Indiana Department of Education issued memoranda to all public school superintendents in 1993, 1997, and 1999 advising that it interpreted Indiana Code § 21-3-1.6-1.1 to allow nonpublic school students enrolled in at least one specific class in the public school corporation to be counted in the corporation's ADM.¹ Thereafter, many public school corporations entered into dual-enrollment agreements with private schools in which the public schools agreed to provide various secular instructional services to private school students, on the premises of the private school, in return for securing those students' enrollment in their respective public school corporations. Among the courses offered to the dual-enrolled students are fitness and health, art, foreign language, study skills, verbal skills, music, and computer technology (including internet services).

The two plaintiffs from Lawrence Township in Marion County allege that their township school corporation previously had a dual-enrollment agreement with two parochial schools. While these agreements no longer exist, the plaintiffs object to the continued use of state funds to benefit parochial schools in townships currently operating under similar dual-enrollment agreements. The plaintiff from the city of Mishawaka pays sales tax and local taxes and objects to an ongoing dual-enrollment arrangement between the School City of Mishawaka and a number of Roman Catholic parochial schools, specifically, "the use of state funds to pay public school teachers to teach parochial school students." Br. of Appellants at 9. The fourth plaintiff, a taxpayer in the city of Madison, objected to an arrangement in effect at the time of the filing of this action between the Madison Community Schools and the Prince of Peace Catholic Schools to provide computer equipment, internet services, and teachers. Although the Madison arrangement has since been discontinued, this plaintiff continues to object to the use of state funds to benefit parochial schools under dual-enrollment agreements still in effect. Id. Collectively, the plaintiffs claim that the expanded curriculum and internet access made available for use by parochial school students and paid for with public funds under these dual-enrollment agreements violate Article 1, Section 6, of the Indiana Constitution. They assert no federal constitutional claims.

When reviewing a grant or denial of summary judgment, our standard of review is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 203 (Ind.2003). Where the dispute is one of law rather than fact, our standard of review is de novo. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind. 2002); see also LCEOC, Inc. v. Greer, 735 N.E.2d 206, 208 (Ind.2000)

. The issues presented in this appeal are issues of law, not fact, and will be reviewed accordingly.

1. Standing

Because of their status as taxpayers challenging the use of public money in alleged violation of the Indiana Constitution, the plaintiffs claim standing under Indiana's public standing doctrine, an exception to the general requirement that a plaintiff must have an interest in the outcome of the litigation different from that of the general public. State ex rel. Cittadine v. Indiana Dep't of Trans., 790 N.E.2d 978, 980 (Ind.2003); Schloss v. City Indianapolis, 553 N.E.2d 1204, 1206 n. 3 (Ind. 1990); Higgins v. Hale, 476 N.E.2d 95, 101 (Ind.1985). Both the trial court and the Court of Appeals concluded that the plaintiffs lack standing to bring this action, in reliance on Pence v. State, 652 N.E.2d 486 (Ind.1995).

As we recently held in Cittadine, however, "Pence did not alter the public standing doctrine," 790 N.E.2d at 983, which has been recognized in Indiana case law for more than one hundred and fifty years and remains viable today. Id. at 980, 983. Because the plaintiffs' complaint is not grounded on a claim of private rights, but rather on their shared public interest as taxpayers in the allegedly unconstitutional expenditure of public funds, they fall within the public standing exception to the general standing requirement, and are entitled to bring this action. This result is also consistent with State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256 (1940), in which this Court addressed the claims of taxpayers challenging certain acts of the School City of Vincennes as violative of Article I, § 6.

2. Article 1 § 6

The plaintiffs challenge the dual-enrollment process, claiming that it results in money being drawn from the state treasury to benefit parochial schools. They argue that this violates the plain meaning of Section 6, and that their position is consistent with the history of the times surrounding the adoption of our 1851 constitution and with the limited case law interpreting Section 6.

Our standard of review of state constitutional claims is well established. It requires:

a search for the common understanding of both those who framed it and those who ratified it. Furthermore, the intent of the framers of the Constitution is paramount in determining the meaning of a provision. In order to give life to their intended meaning, we examine the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions. In construing the constitution, we look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy. The language of each provision of the Constitution must be treated with particular deference, as though every word had been hammered into place.

City Chapel Evangelical Free Inc. v. City of South Bend, 744 N.E.2d 443, 447 (Ind. 2001).

The text of Section 6 is brief: "No money shall be drawn from the treasury, for the benefit of any religious or theological institution." Ind. Const. art. I, § 6. This language did not appear in Indiana's 1816 constitution,² but was a product of the 1850-51 constitutional convention and was included in our constitution of 1851 without any substantive discussion at the convention.

The various religious clauses now contained in Sections 2 through 7 of Article 1 were introduced together at the convention as Resolution Number 11, sections 2 and 3, in a report of the "committee on the rights and privileges of the inhabitants of this State" by the committee's chair, delegate Robert Dale Owen, on October 31, 1850. Journal of the Convention of the People of the State of Indiana at 165 (reprint 1936) (1851). The sections reported were ordered to a second reading. Id. at 166. Resolution Number 11 underwent its second reading on December 4, 1850, during which minor changes were made in wording and arrangement, none of which altered the language of what is now Section 6. Id. at 349-50. The resolution was passed without discussion on third reading on December 5, 1850, by a vote of 122-0, and was referred to the...