Linnemeier v. Indiana University-Purdue University

• Decision Date: 20 July 2001
• Docket Number: No. 1:01-CV-0266.,1:01-CV-0266.
• Citation: 155 F.Supp.2d 1044
• Parties: Dan LINNEMEIER, Patricia C. Corbat, Steve & Glenna Jehl, Ben & Rita Clemmer, Tom & Rosie O'Grady, Regina Martin, Francisco Carlos Avila, Jon Olinger, Senator Kent Adams Representative James Atterholt Representative James Buck Representative Charles Burton Representative Robert Cherry Representative Jerry Denbo Representative Jeffrey Espich Representative Ralph Foley Senator David Ford Representative David Frizzell Senator Steve Johnson Representative Dean Mock Senator Johnny Nugent Representative Brent Steele Representative Jeffrey Thompson Representative Jerry Torr Senator John Waterman Senator Harold Wheeler Representative, Matthew Whetstone Representative David Wolkins, and Senator R. Michael Young, Plaintiffs, v. INDIANA UNIVERSITY—PURDUE UNIVERSITY FORT WAYNE, and Michael J. Birck, Barbara Edmondson, John A. Edwardson, Lewis W. Essex, John D. Hardin, Jr., J. Timothy McGinley, D. William Moreau, Jr., Mamon M. Powers, Jr., Ms. Amanda S. Teder, and W. Wayne Townsend, as members of the Board of Trustees of Purdue University Defendants.
• Court: U.S. District Court — Northern District of Indiana

155 F.Supp.2d 1044

Dan LINNEMEIER, Patricia C. Corbat, Steve & Glenna Jehl, Ben & Rita Clemmer, Tom & Rosie O'Grady, Regina Martin, Francisco Carlos Avila, Jon Olinger, Senator Kent Adams Representative James Atterholt Representative James Buck Representative Charles Burton Representative Robert Cherry Representative Jerry Denbo Representative Jeffrey Espich Representative Ralph Foley Senator David Ford Representative David Frizzell Senator Steve Johnson Representative Dean Mock Senator Johnny Nugent Representative Brent Steele Representative Jeffrey Thompson Representative Jerry Torr Senator John Waterman Senator Harold Wheeler Representative, Matthew Whetstone Representative David Wolkins, and Senator R. Michael Young, Plaintiffs, v. INDIANA UNIVERSITY—PURDUE UNIVERSITY FORT WAYNE, and Michael J. Birck, Barbara Edmondson, John A. Edwardson, Lewis W. Essex, John D. Hardin, Jr., J. Timothy McGinley, D. William Moreau, Jr., Mamon M. Powers, Jr., Ms. Amanda S. Teder, and W. Wayne Townsend, as members of the Board of Trustees of Purdue University Defendants.

No. 1:01-CV-0266.

United States District Court, N.D. Indiana, Fort Wayne Division.

July 20, 2001.

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John R. Price, Bruce A. Stuard, John R. Price and Associates, Indianapolis, IN, for Plaintiffs.

Anthony S. Benton, Stephen R. Pennell, Barry L. Loftus, Stuart and Branigin, Lafayette, IN, for Defendants.

Kenneth J. Falk, Sean C. Lemieux, Indianapolis, IN, for Intervenor Defendant.

MEMORANDUM OF DECISION AND ORDER

WILLIAM C. LEE, Chief Judge.

Presently before the court are the Defendants' motions to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim for relief pursuant to Fed. R.Civ.P. 12(b)(6) filed on July 11, 2001. The Court expedited the briefing schedule on these motions and, in accordance with that schedule, the Plaintiffs' responded to the Defendants' motions on July 16, 2001. The court held an evidentiary hearing on these motions as well as Plaintiffs' motion for preliminary injunction on July 17, 2001. Following the evidentiary hearing, the court heard oral argument on the evidence and law. This Order resolves only the Defendants' motions to dismiss. In a separate Order entered simultaneously herewith is the court's opinion relating to the Plaintiffs' Request for a Preliminary Injunction.

For the following reasons, the Defendants' motions to dismiss will be GRANTED in part and DENIED in part.

FACTUAL BACKGROUND¹

The Plaintiffs, eleven residents and taxpayers of the state of Indiana and twenty-one members of the Indiana General Assembly (hereafter, "the Plaintiffs") filed suit against the Defendants, Indiana University —Purdue University Fort Wayne ("IPFW") and ten members of the Board of Trustees of Purdue University ("the Board") (collectively, "the Defendants") pursuant to 42 U.S.C. § 1983 alleging that the Defendants will violate the Establishment Clause of the United States Constitution if they are not enjoined from presenting playwright Terrence McNally's play Corpus Christi (hereafter "the Play") on August 10, 2001 at the Studio Theater located in Kettler Hall on IPFW's campus.²

The Play's protagonist is Joshua, a young gay man from South Texas, who is surrounded by his disciples, a group of twelve gay men. Each disciple takes the name of one of the historical disciples of Christ in the New Testament of the Bible. According to the Plaintiffs' interpretation of the Play, "Joshua faces many of the challenges and circumstances confronted by Christ in the New Testament." (Brief in Support, p. 2).

In their Complaint, the Plaintiffs allege that the Play is an "undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and thus, the performance of the Play in a publicly funded, taxpayer owned educational facility such as IPFW violates the separation between church and state as required by the Establishment Clause.³ The Complaint sets forth four and a half pages of alleged hostile references to Christianity.⁴

The Plaintiffs assert that Kettler Hall is a publicly owned facility funded by taxpayers out of IPFW's operating budget, that the cost of utilities and "for other appurtenant and affiliated costs involved with the presentation" of the Play are funded by taxpayer dollars, and that taxpayer dollars pay the salary of the Chairman of the Theater Department, Larry Life ("Life"), who Plaintiffs contend has arranged the production, given public statements as to his involvement in the Play, and is "widely perceived in the public media as a public employee who has more than active involvement in the presentation of the Play." (Complaint, ¶ 20).

Several plaintiffs testified at the hearing that they have altered their day-to-day affairs as a result of the proposed performance of the Play. Plaintiff, Dan Linnemeier, for instance, claims that he is required to go to the County Extension Office located on IPFW's campus for his job and that he refuses to go onto campus because of the hostile environment toward Christians engendered by the Play. He also testified that he and his wife attended gardening shows at IPFW but will no longer do so because of IPFW's decision to produce the Play. Plaintiffs Jehl, Corbat, and Olinger claim that they will refuse to fund their children's or other close relatives' higher education costs if those children or relatives choose to attend IPFW. Finally, Plaintiff Francisco Carlos Avila asserts that as a result of the Play he has written a letter to the John Purdue Club, an organization affiliated with Purdue University, indicating that he will no longer contribute to that organization because of the Play. Given this interspersing of state tax revenue with the Play and the fact that they must alter their lives to avoid the alleged state sponsored religious attack on Christianity, Plaintiffs claim that an Establishment Clause violation exists.

In addition to these facts, the parties filed a joint stipulation addressing the following facts: Purdue University is a state educational institution of higher learning created by and existing under various Indiana statutes. The Trustees of Purdue University ("Trustees") is a statutory body corporate created by and existing under Indiana law, charged by Indiana law with the responsibility for operating Purdue University. Pursuant to statute, the Trustees are managed by the Board. IPFW is a joint regional campus of Indiana University, a state educational institution of higher learning, and Purdue University, and is managed and operated by Purdue pursuant to a written agreement between the trustees of both Indiana and Purdue Universities. (Joint Stipulations, ¶¶ s 1-4)

Each biennium, the Indiana General Assembly makes a specific appropriation to the Trustees for the express purpose of funding operations at IPFW. IPFW, in addition, receives revenues through fees approved by the Board, gifts, and miscellaneous other sources. These sources of IPFW revenue, including the appropriation from the Indiana General Assembly are combined into an operating budget that is approved annually by the Board. (Joint Stipulation, ¶ 5). The operating budget is eventually supplied to IPFW officials for use in varying ways on the IPFW campus.⁵ Typical expenditures from the operating budget include utilities for campus buildings, security for campus events, and salaries for faculty and staff members. (Joint Stipulation, ¶ 6, ¶ 14).

IPFW also maintains Student Activity Funds which are not part of the operating budget. These Student Activity Funds are generated through an activity fee charged to students. Aside from the salaries for Theater Department employees and the utilities for the various building utilized by the IPFW Theater Department paid out of the operating budget, all costs associated with IPFW Theater Productions are paid for by either the Student Activity funds or through gift funds. (Grote Affidavit, ¶¶ 4,5).

DISCUSSION

Motion to Dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1)

Defendants characterize their motion to dismiss as a motion pursuant to Fed. R.Civ.P. 12(b)(1) attacking the subject matter jurisdiction of the court. "When a plaintiff lacks standing to bring suit, a court has no subject matter jurisdiction over the case." In re United States Catholic Conference, 885 F.2d 1020, 1023 (2d Cir.1989); Simmons v. Interstate Commerce Commission, 900 F.2d 1023, 1026 (7th Cir.1990) ("If the petitioners have no standing, there is no case or controversy, and the court does not have the power to entertain the case under Article III of the Constitution.").

At the pleading stage, "general factual allegations of injury resulting from the defendant's conduct are sufficient to overcome a motion to dismiss, for on a motion to dismiss the court presumes that `general allegations embrace those specific facts that are necessary to support the claim.'" Doe v. County of Montgomery, 41 F.3d 1156, 1159 (7th Cir.1994)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). However, case authorities also recognize that "[a] court may treat a motion to dismiss as one for summary judgment, thereby requiring that a plaintiff provide affidavits supporting factual allegations made in the complaint. Disputed factual issues may be resolved at a pretrial evidentiary hearing or during the course of trial." Bischoff v. Osceola County, Fla., 222 F.3d 874, 878 (11th Cir.2000). Indeed, when faced with standing issues, courts are required to hold an evidentiary hearing to determine disputed factual issues. See Martin v. Morgan Drive Away, Inc., 665 F.2d 598 (5th Cir.1982); Steele v. National Firearms Act Branch, 755 F.2d 1410 (11th Cir.1985); Munoz-Mendoza v. Pierce, 711 F.2d 421 (1st Cir.1983). That is what occurred in this case and thus, the court considers the evidence presented at the hearing along with the...