Gul v. City of Bloomington

• Citation: 22 N.E.3d 853
• Decision Date: 22 December 2014
• Docket Number: No. 53A04–1408–MI–378.,53A04–1408–MI–378.
• Parties: Alexander GUL, Appellant–Plaintiff, v. CITY OF BLOOMINGTON, Appellee–Defendant.
• Court: Court of Appeals of Indiana

22 N.E.3d 853

Alexander GUL, Appellant–Plaintiff

v.CITY OF BLOOMINGTON, Appellee–Defendant.

No. 53A04–1408–MI–378.

Court of Appeals of Indiana.

Dec. 22, 2014.

James Alexander Tanford, Bloomington, IN, Attorney for Appellant.

Patricia M. Mulvihill, City of Bloomington, Bloomington, IN, Attorney for Appellee.

OPINION

BAKER

, Judge.

“Her lawn

Looks like a meadow,

And if she mows the place

She leaves the clover standing

And the Queen Anne's Lace!”¹

“The grass may be greener on the other side of the fence but you still have to mow it.”²

Alexander Gul believes that modern day lawn maintenance practices are harmful to the environment. As a result, he refuses to mow his lawn to comply with an ordinance requiring that the height of grass in one's yard may not exceed eight inches. He appeals the trial court's order granting summary judgment in favor of the City of Bloomington (Bloomington) on Gul's complaint against Bloomington appealing an administrative conclusion that Gul had violated the grass height ordinance.

Gul argues that the ordinance at issue (1) violates his freedom of conscience under the Indiana Constitution; (2) violates his freedom of expression under the United States and Indiana Constitutions; (3) is facially invalid because it conflicts with two Indiana Code provisions; and (4) is void for vagueness under the federal Due Process clause. After cutting through Gul's arguments, we affirm.

FACTS³

Gul owns and occupies residential property in Bloomington. On multiple occasions throughout the years, Bloomington has cited Gul for violations of Bloomington Municipal Code section 6.06.050 (the Ordinance), which prohibits a landowner from allowing the property to become overgrown with grass that is over eight inches tall.

Gul allows his yard to grow naturally and does not apply chemicals, mow, water, or fertilize it. He explains that his decision to maintain a natural yard is a statement of his sincerely held environmental belief that the overuse of chemicals, water, and lawnmowers to maintain a traditional lawn is harmful to the environment.

Bloomington officials disagree and view Gul's yard as merely overgrown. Over the course of twelve years, Gul has been cited for violations of the Ordinance thirty-eight times. He has been assessed fines totaling $1720 and abatement costs of $1100.

On July 11, 2013, the Bloomington Department of Housing and Neighborhood Development (HAND) issued Gul a citation for having tall grass and assessed a fine of $50. Gul appealed the citation to the Bloomington Board of Public Works, and the Board affirmed the citation and fine on July 30, 2013.

On August 7, 2013, Gul appealed the Board's decision to the trial court. On November 20, 2013, the parties submitted to the trial court joint stipulations of facts, law, and exhibits. Based on those documents, Gul filed a motion for judgment on the stipulated record on December 12, 2013, and Bloomington filed a motion for summary judgment on January 16, 2014. The trial court denied Gul's motion and granted Bloomington's motion on January 23, 2014, finding that the Ordinance does not violate the United States or Indiana Constitutions and that it is not facially invalid. Gul now appeals.

DISCUSSION AND DECISION

Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Pedraza v. City of E. Chicago, 746 N.E.2d 94, 99 (Ind.Ct.App.2001)

. On appeal, the trial court's order granting or denying a summary judgment motion is cloaked with the presumption of validity. Id. The appellant has the burden of persuading this Court that the decision to grant summary judgment was erroneous. Id. On appellate review, all properly asserted facts and reasonable inferences that may be drawn therefrom should be resolved against the movant. Id. We will sustain the trial court's decision if it is sustainable by any theory or basis found in the record. Id.

In this case, Gul argues that the Ordinance is unconstitutional. We apply a de novo standard of review to determine the constitutionality of a statute or ordinance. Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1272 (Ind.2014)

.

I. Freedom of Conscience

Article 1, Section 3 of the Indiana Constitution

provides as follows: “[n]o law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.” Gul argues that the Ordinance is unconstitutional because it interferes with his rights of conscience as enshrined in this Constitutional provision.

There is a dearth of caselaw interpreting or applying the conscience clause of Article 1, Section 3

, in a non-religious context. Bloomington argues that the conscience clause is merely an extension of the Constitution's protection of religious belief. In other words, “[t]he right of conscience enshrined in § 3 does not give absolute protection to all beliefs, rather it gives broader protection to the religious beliefs protected in Art. I §§ 2 –8 of the Indiana Constitution.” Appellee's Br. p. 5.

The Bill of Rights in the Indiana Constitution is contained in Article 1, and Sections 2

through 8 focus on religion-related freedoms. It has been the case in Indiana since the 19th century that “the law allows everyone to believe as he pleases” when it comes to religion—including the right to hold no religious beliefs whatsoever:

These provisions of the fundamental law not only take away all power of the state to interfere with religious belief, but they leave the citizen perfectly free to repudiate the faith and belief he once professed and adhered to, and adopt a new creed and faith, differing from that of the church to which he belonged; or he may repudiate his old belief and faith without adopting any new one; and these changes he may adopt as often as to him may seem proper, and the law will protect him in it.

Smith v. Pedigo, 145 Ind. 361, 33 N.E. 777, 779 (Ind.1893)

.

The conscience clause must be interpreted in this context. Judge Rovner of the Seventh Circuit Court of Appeals has explained the history of the notion of freedom of conscience as follows:

... “freedom of religion” and “freedom of conscience” were terms that were used interchangeably in discussions of religious liberty [at the time of the drafting, debate, and adoption of the First Amendment's free exercise clause].... [T]he exercise of religious conscience was understood to be a matter between the individual and his God—not, perhaps, in the more modern sense of believing whatever one wants, but rather as a reflection that the individual owed his or her obedience on moral matters directly to God. The understanding that the exercise of religions was a matter of the individual's relationship with and obedience to God was also consistent with the multiplicity of minority religions practiced in the United States by the second half of the 18th century, and a consensus that the country should move away from a Colonial history of officially established religions (and officially disfavored religions) toward religious pluralism.

Korte v. Sebelius, 735 F.3d 654, 700–01 (7th Cir.2013)

(Rovner, J., dissenting) (internal citations omitted). While this analysis applies to the First Amendment to the United States Constitution rather than to the Indiana Constitution, its exploration of the meaning of “conscience” in centuries past is certainly relevant, as is the greater context of the surrounding Sections that are all devoted to religious liberties.

At most, the rights of conscience referred to in Article 1, Section 3

extend only to the right to hold whatever beliefs one desires. In other words, the government may not punish citizens solely for the opinions that we hold. We cannot conclude, however, that the drafters of the Indiana Constitution intended to enshrine a right to believe whatever one desires and also to exercise those beliefs with no regard for the law. For example, one is free to hold a sincere belief that cigarette smokers should be able to smoke anywhere they would like to do so. But one is not free to smoke in, for example, buses, restaurants, libraries, or hospitals, as doing so would violate Bloomington Municipal Code 6.12.030. One is free to believe that rabies vaccinations are harmful to dogs and cats. But one is not free to refrain from vaccinating one's pets, as that would violate Bloomington Municipal Code 7.44.010.

To rule as Gul asks us to would be tantamount to declaring nearly every statute and ordinance on the books in Indiana unconstitutional, as it is possible to find someone, somewhere, with a sincere belief that contravenes every law. We cannot, and do not, believe that Article 1, Section 3

countenances that result. Furthermore, we agree with the trial court that

[i]f rights of conscience were meant to be given the right to practice, they would have been included in Section 2

. Section 3 ... protects only the right to opinion. The ‘free exercise and enjoyment’ protected in Section 3 protects against unequal treatment under law for holding an opinion for reasons of conscience, but it does not grant a right to the practice of those opinions.

Appellant's App. p. 14.

In sum, we find that Article 1, Section 3

was intended to apply to religious, rather than non-religious, matters of conscience. But even if it includes non-religious matters of conscience, it protects only the right to hold one's own opinions, and does not protect the right to act on one's own opinions in contravention of the law. Here, Gul's belief regarding the environmental harm of modern day lawn care is undisputedly sincerely held. But it is not a religious belief. And even though he has the right to hold this belief, Section 3 does not protect him from legal consequences if he violates local ordinances in the name of this belief. We find that the Ordinance does not violate Article 1, Section 3 of the Indiana Constitution.

II. Freedom of Expression

A. First Amendment to the U.S....