Payne-Elliott - 7.21.2021 - Appellant's Brief

Filed: 7/21/2021 3:51 PM
IN THE INDIANA COURT OF APPEALS

CAUSE NO. 21A-CP-00936
JOSHUA PAYNE-ELLIOTT, )
)
Appellant, ) Appeal from the Marion Superior Court 1
(Plaintiff below), )
)
v. ) Trial Court Case No.:
) 49D01-1907-PL-027728
)
ROMAN CATHOLIC ARCHDIOCESE )
OF INDIANAPOLIS, INC., )
) The Honorable Lance Hamner,
Appellee, ) Special Judge.
(Defendant below). )
BRIEF OF APPELLANT JOSHUA PAYNE-ELLIOTT
Kathleen A. DeLaney (#18604-49)

Christopher S. Stake (#27356-53)
DELANEY & DELANEY LLC
3646 N. Washington Blvd.
Indianapolis, IN 46205
317-920-0400
[email protected]
[email protected]
Attorneys for Appellant

Joshua Payne-Elliott
Brief of Appellant Joshua Payne-Elliott
TABLE OF CONTENTS
TABLE OF AUTHORITIES...................................................................................................... 3
STATEMENT OF THE ISSUES .............................................................................................. 7
STATEMENT OF THE CASE .................................................................................................. 7
STATEMENT OF FACTS ....................................................................................................... 10
I. Factual Background. .................................................................................................... 10
II. Procedural Background. .............................................................................................. 12
SUMMARY OF ARGUMENT ................................................................................................. 16
ARGUMENT ........................................................................................................................... 20
I. The Trial Court Erred by Dismissing the Case Under T. R. 12(B)(1). ....................... 20
A. This Court Reviews the T.R. 12(B)(1) Ruling De Novo. ....................................... 21
B. The Church Autonomy Doctrine Does Not Apply or Bar Jurisdiction. ............... 21
II. The Trial Court Erred by Dismissing the Case under T. R. 12(B)(6)......................... 30
A. The Standard of Review is De Novo. .................................................................... 30
B. Payne-Elliott Presented Viable Claims against the Archdiocese. ....................... 31
1. Freedom of Expressive Association Erects No Bar Here. .................................... 31
2. Cathedral Did Not Consider Payne-Elliott a Minister. ....................................... 35
3. Payne-Elliott Properly Pled Claims for Intentional Interference. ...................... 39
III. The Trial Court Abused its Discretion in Reversing the Prior Trial Court Judge. .. 44
A. Abuse of Discretion Standard of Review .............................................................. 44
B. The Trial Court Decided the Wrong Motion......................................................... 45
C. The Trial Court Reversed the Prior Trial Court Judge without Basis. .............. 46
D. The Trial Court Failed to Explain Why the Prior Ruling Was Wrong. ............... 49
E. The Trial Court Erred by Assuming that the Indiana Supreme Court ..................
Ordered it to Change the Prior Trial Court Judge’s Ruling. ................................ 51
IV. Payne-Elliott Should Be Permitted an Automatic Change of Judge. ........................ 52
CONCLUSION ........................................................................................................................ 54
WORD COUNT CERTIFICATE ............................................................................................. 56
CERTIFICATE OF SERVICE ................................................................................................ 57
APPEALED ORDERS - SEPARATELY FILED AS EXHIBITS 1 AND 2
2
TABLE OF AUTHORITIES
CASES
Allison v. Union Hosp., Inc., 883 N.E. 2d 113 (Ind. Ct. App. 2008) ................................ 41
Am. Consulting, Inc. v. Hannum Wagle & Cline Eng’g, Inc.,

136 N.E.3d 208 (Ind. 2019)....................................................................................... 41
Bob Jones Univ. v. United States, 461 U.S. 574 (1983) .................................................. 24
Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282 (Ind. 1991) ................ 40
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .............................................................. 32
Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286

(Ind. 2003) .......................................................................................................... passim
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ...................................................... 32
Calvary Temple Churc, Inc. v. Paino, 841 N.E.2d 1133 (Ind. 2006).......................... 22-23
Calvary Temple Church, Inc. v. Paino, 827 N.E.2d 125 (Ind. Ct. App. 2005) ..... 22-23, 29
Cantwell v. Connecticut, 310 U.S. 296 (1940) ................................................................. 29
Certain Northeast Annexation Area Landowners v. City of Fort Wayne,

622 N.E.2d 548 (Ind. Ct. App. 1993) ........................................................................ 44
Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602 (Ind. 2007) ................................. 30
Christian Legal Soc’y v. Martinez, 561 U.S. 661 (2010) ............................................ 34-35
Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006) ........................... 32, 34-35
Christian Methodist Episcopal Church v. Grimes, 132 N.E. 3d 930

(Ind. Ct. App. 2019) .................................................................................................. 23
City Chapel Evangelical Free Inc. v. City of South Bend ex rel. Dep’t of
Redevelopment, 744 N.E.2d 443 (Ind. 2001) ........................................................... 32
Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000) .................................. 34
Coca-Cola Co. v. Babyback’s Int’l, Inc., 806 N.E. 2d 37 (Ind. Ct. App. 2004)................. 41
Collette v. Archdiocese of Chicago, 200 F. Supp.3d 730 (N.D. Ill. 2016) ........................ 37
3
Curay-Cramer v. Ursuline Acad. Of Wilmington, Del., Inc., 450 F.3d 130

(3d Cir. 2006) .............................................................................................................. 25
Daly v. Nau, 167 Ind. App. 541 (Ind. 1975) ................................................................24, 33
Davis v. Ford Motor Co., 747 N.E.2d 1146 (Ind. Ct. App. 2001)............... 10, 30-31, 43-44
Demkovich v. St. Andrew the Apostle Par., No. 19-2142,

2021 U.S. App. LEXIS 20410 (7th Cir. July 9, 2021) ......................................... 36-37
Dwenger v. Geary, 113 Ind. 106 (Ind. 1888) ...............................................................26, 29
Employment Div. v. Smith, 494 U.S. 872 (1990) ............................................................. 23
Estate of Hammar v. Hammar, 847 N.E.2d 960 (Ind. 2006) .......................................... 44
Estate of Kitterman v. Pierson, 661 N.E. 2d 1255 (Ind. Ct. App. 1996)......................... 30
Estate of Lewis, 123 N.E.3d 670 (Ind. 2019) .............................................................. 51-52
Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214 (1989) ............................. 32
GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001) .......................................................... 21
Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655 (7th Cir. 2018) ............... 37
Guinn v. Applied Composites Eng’g, Inc., 994 N.E.2d 1256 (Ind. Ct. App. 2013).......... 43
Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680 (1989) ................................... 23
Herx v. Diocese of Fort Wayne-South Bend, Inc., 48 F. Supp.3d 1168

(N.D. Ind. 2014) ................................................................................................... 24-25
Hill v. State, 592 N.E.2d 1229 (Ind. 1992)....................................................................... 52
Hishon v. King & Spalding, 467 U.S. 69 (1984) .............................................................. 33
Hopkins v. State, 782 N.E.2d 988 (Ind. 2003) ...................................................... 44-45, 50
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,

565 U.S. 171 (2012) ........................................................................................ 35, 37-38
Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E. 2d 193 (Ind. Ct. App. 1999)............ 30
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557 (1995) ................................................................................................... 32
4
Ind. Area Found. of the United Methodist Church, Inc. v. Snyder,

953 N.E.2d 1174 (Ind. Ct. App. 2011) .................................................................22, 29
Jones v. Wolf, 443 U.S. 595 (1979) ................................................................................... 24
Kirby v. Lexington Theol. Seminary, 426 S.W.3d 597 (Ky. 2014) .................................. 36
Lake County Juvenile Detention Ctr. v. J.M.D., 704 N.E.2d 149

(Ind. Ct. App. 1999) .................................................................................................. 53
McEnroy v. St. Meinrad School of Theology, 713 N.E.2d 334

(Ind. Ct. App. 1999) ....................................................................................... 26-27, 47
McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc.,

304 F. Supp.3d 514 (N.D. Miss. 2018) ..................................................................... 36
Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E. 2d 1268

(Ind. Ct. App. 2000) ............................................................................................. 40-41
N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) .................................. 32
NAACP v. Claiborne, 458 U.S. 886 (1982) ....................................................................... 32
Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020) ............. 38-39
Our Lady’s Inn v. City of St. Louis, 349 F. Supp. 3d 805 (E.D. Mo. 2018) ................32, 34
Pactor v. Pactor, 391 N.E. 2d 1148 (Ind. Ct. App. 1979) ................................................. 30
Perry v. Stitzer Buick GMC, 637 N.E.2d 1282 (Ind. 1994) ............................................. 21
Roberts v. United States Jaycees, 468 U.S. 609 (1984) ............................................. 31-33
Snyder v. Phelps, 562 U.S. 443 (2011) ............................................................................. 32
State ex rel. Goldsmith v. Superior Court of Marion County, Criminal Div., etc.,
463 N.E.2d 273 (Ind. 1984)....................................................................................... 52
State v. Huffman, 643 N.E.2d 899 (Ind. 1997) ........................................................... 44-45
Stewart v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542

(Ind. Ct. App. 2002) ....................................................................................... 44, 48-51
Thornton v. State, 43 N.E. 3d 585 (Ind. 2015)................................................................. 30
Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985) ......... 23-24
Watson v. Auto Advisors, Inc., 822 N.E.2d 1017 (Ind. Ct. App. 2005) ........................... 39
5
Winkler v. V.G. Reed & Sons, 638 N.E.2d 1228 (Ind. 1994) ................................. 26,40-43
Winkler v. V.G. Reed & Sons, 619 N.E.2d 597 (Ind. Ct. App. 1993) ............................... 41
RULES
Ind. Trial Rule 12....................................................................................................... passim
Ind. Trial Rule 53.4................................................................................................14, 45, 51
Ind. Trial Rule 76....................................................................................................... passim
6
STATEMENT OF THE ISSUES
1. Whether the Trial Court erred by dismissing Joshua Payne-Elliott’s
(“Payne-Elliott”) case for lack of subject matter jurisdiction under Ind. Trial Rule
12(B)(1) after denying a motion on that same basis.
2. Whether the Trial Court erred by dismissing Payne-Elliott’s case for failure
to state a claim upon which relief may be granted under Ind. Trial Rule 12(B)(6) after
denying a motion on that same basis.
3. Whether the Trial Court abused its discretion in reversing its prior decision
on the same legal issues with no explanation of why or how the earlier decision was
clearly erroneous, or otherwise demonstrating extraordinary circumstances.
4. Whether Payne-Elliott may move for change of judge in the Trial Court,
pursuant to Ind. Trial Rule 76(C), if the Trial Court’s “Order on Motion to Dismiss” is
reversed and remanded.
STATEMENT OF THE CASE
The Trial Court decided the legal issues presented on this appeal twice, with
rulings from two different judges, who reached opposite conclusions. App. Vol. II, pp. 26,
158-175. The first Special Judge took seven months and 18 pages to explain why the case
should not be dismissed. App. Vol. II, pp. 6-9, 14, 158-175. The second Special Judge
reversed that decision without explanation in four paragraphs. App. Vol. II, p. 26. The
only thing that changed between the two rulings was the judicial officer. App. Vol. II,
pp. 3-24.
7
For thirteen years, Joshua Payne-Elliott taught world language and social studies
at Cathedral High School (“Cathedral”) in Indianapolis, Indiana. App. Vol. II, p. 29.
Payne-Elliott is gay and married his husband in 2017. Id. Cathedral knew about Payne-
Elliott’s same-sex marriage, and renewed Payne-Elliott’s annual teaching contract three
times after learning about Payne-Elliott’s marriage and/or engagement. App. Vol. II, pp.
29, 36-39. On May 21, 2019, Cathedral renewed Payne-Elliott’s contract for the 2019-
2020 school year. Id. On June 23, 2019, Cathedral terminated Payne-Elliott’s
employment. Id. at 31. At the termination meeting, Cathedral’s President told Payne-
Elliott that the Roman Catholic Archdiocese of Indianapolis, Inc. (“Archdiocese”) had
directed Cathedral to terminate Payne-Elliott because of his sexual orientation and
marital status. Id. Cathedral’s President said it “feels like [we have] a gun to our head.”
App. Id. Payne-Elliott sued the Archdiocese for unlawfully interfering with his
employment and contract with Cathedral. Id. at 28-34.
The Archdiocese moved to dismiss Payne-Elliott’s claims, arguing First
Amendment defenses. App. Vol. II, pp. 46-66. The Trial Court denied the Motion to
Dismiss in a lengthy and detailed opinion running 18 pages, which thoughtfully
considered all of the arguments and addressed them in detail. App. Vol. II, pp. 158-175.
The Archdiocese sought certification for interlocutory appeal, which was denied in a six-
page, detailed decision. App. Vol. II, pp. 225-236, App. Vol. III, pp. 11-16. Ignoring the
denial of certification, the Archdiocese filed a petition for writ of mandamus and
prohibition with the Indiana Supreme Court, which the Supreme Court denied in a two-
page order. Addend., pp. 11-31; App. Vol. III, pp. 23-24.
8
While the Archdiocese’s petition remained pending, the Trial Court judge recused
himself. App. Vol. III, pp. 17-22. The Indiana Supreme Court appointed a new special
judge in the order denying the Archdiocese’s petition. App. Vol. III, p. 24. The Supreme
Court said that the new special judge had “authority to consider new and pending issues
and reconsider previous orders in the case,” which was a simple statement of existing
law, not an advisory opinion. Id. After the new Trial Court judge was appointed, the
Archdiocese filed a Motion for Judgment on the Pleadings, which recycled the losing
arguments from the Motion to Dismiss which had already been denied. App. Vol. III, pp.
25-104. Payne-Elliott opposed the Motion. App. Vol. III, pp.115-144.
On May 7, 2021, the Trial Court entered a four paragraph “Order on Motion to
Dismiss,” which ordered the dismissal of Payne-Elliott’s Complaint, but the Court did
not simultaneously enter judgment. App. Vol. II, p. 26. The Trial Court’s order stated
that Plaintiff’s claims “fail pursuant to Rule 12(B)(1) … and Rule 12(B)(6) of the Indiana
Rules of Trial Procedure[.]” Id. The Trial Court offered no further explanation of the
grounds for its ruling or the reversal of the Trial Court’s prior ruling on the same issues
in the same case on the same record. Id. The Trial Court ruled on the wrong motion – it
ruled on a “Motion to Dismiss,” which had been already decided and ruled upon, instead
of the motion that was pending before it (the Motion for Judgment on the Pleadings).
The Trial Court offered no explanation for revisiting the Trial Court’s prior ruling
denying the Motion to Dismiss, identified not a single reason why it believed the Trial
Court’s prior ruling was incorrect, and left all to wonder why it ruled on an already
decided Motion to Dismiss instead of the ripe for ruling Motion for Judgment on the
9
Pleadings. Id. 11 days later, after the case had been in limbo, the Trial Court later
entered a “Judgment of Dismissal” against Payne-Elliott, confirming that the case was
“dismissed with prejudice.” App. Vol. II, p. 27.
STATEMENT OF FACTS
I. Factual Background. 1
Cathedral is a Catholic school founded in 1918. App. Vol. II, p. 43. The Archdiocese
initially owned Cathedral, but later engaged the Brothers of Holy Cross to serve as
faculty. Id. Eventually, the Archdiocese turned over care to the Holy Cross brothers. Id.
Cathedral remains affiliated with the Brothers of Holy Cross today. Id.
From August 2006 to June 23, 2019, Payne-Elliott worked at Cathedral as a world
language and social studies teacher. App. Vol. II, p. 29. Cathedral employed Payne-
Elliott pursuant to a teacher contract that renewed annually. Id. On May 21, 2019,
Cathedral offered Payne-Elliott a teaching contract for the 2019-20 school year, which
Payne-Elliott accepted and signed. App. Vol. II, pp. 29, 36-39.
Payne-Elliott is a homosexual male who married his same-sex spouse in 2017. Id.
at 29. Payne-Elliott’s spouse teaches at Brebeuf Jesuit Preparatory School (“Brebeuf
Jesuit”). Id. On May 24, 2019, Cathedral’s President, Robert Bridges, told Payne-Elliott
that Cathedral expected to receive a letter from the Archdiocese stating that, for
Cathedral to retain its recognition as a Catholic school (and purportedly its tax-exempt
1For purposes of this appeal, which arises from the Court’s order on a T.R. 12 motion, the Court must
assume all well-pleaded facts alleged in the Complaint to be true. E.g., Davis v. Ford Motor Co., 747
N.E.2d 1146, 1149 (Ind. Ct. App. 2001).
10
status), it needed to adopt and enforce morals clause language used in teacher contracts
at Archdiocesan schools. Id. at 29-30.
On June 20, 2019, Brebeuf Jesuit issued a public statement announcing that,
despite pressure from the Archdiocese, it would not dismiss Payne-Elliott’s spouse, who
it described as “a highly capable and qualified teacher.” Id. at 30. The next day, on June
21, 2019, Archbishop Charles C. Thompson issued a decree stating that the Archdiocese
no longer recognized Brebeuf Jesuit as a Catholic institution. App. Vol. II, pp. 30, 41.
Brebeuf Jesuit appealed that decree to the Vatican in Rome, which suspended the decree
pending resolution of the appeal. App. Vol. II, p. 145, 163.
Payne-Elliott chaperoned an international, school-sponsored student trip for
Cathedral, which ended on June 21, 2019. App. Vol. II, pp. 30-31. After his return, on
Sunday, June 23, 2019, President Bridges met with Payne-Elliott and informed him that
Cathedral was terminating Payne-Elliott’s employment, effective immediately, at the
direction of the Archdiocese. Id. at 31. President Bridges notified Payne-Elliott that the
Archdiocese had “directed” Cathedral to terminate his employment, and that Cathedral
was terminating him in accordance with the Archbishop’s directive. Id. President
Bridges gave no performance-based reason for the decision during the termination
meeting and acknowledged that Payne-Elliott was “a very good teacher.” Id. President
Bridges stated that the sole reason for Payne-Elliott’s termination was, “the Archbishop
directed that we [Cathedral] can’t have someone with a public same-sex marriage here
and remain Catholic.” Id.
11
On June 23, 2019, Cathedral published a public letter to the “Cathedral Family”
on its web site (“Cathedral letter”). App. Vol. II, pp. 31, 43-44. The Cathedral letter
stated, in part, “Archbishop Thompson made it clear that Cathedral’s continued
employment of a teacher in a public, same-sex marriage would result in our forfeiting
our Catholic identity due to our employment of an individual living in contradiction to
Catholic teaching on marriage.” Id. at 31-32, 43. The Cathedral letter further stated,
“[t]herefore, in order to remain a Catholic Holy Cross School, Cathedral must follow the
direct guidance given to us by Archbishop Thompson and separate from the teacher.” Id.
at 32, 43-44. The Cathedral letter stated that “Cathedral would lose its 501(c)(3) [tax-
exempt] status.” Id. at 43.
Payne-Elliott sued the Archdiocese on July 10, 2019. App. Vol. II, pp. 28-34.
Payne-Elliott alleges that the Archdiocese intentionally interfered with his contractual
relationship and intentionally interfered with his employment relationship. Id. at 32-33.
Payne-Elliott had valid and existing employment and contractual relationships with
Cathedral. Id. The Archdiocese knew about Payne-Elliott’s employment and contract
with Cathedral. Id. The Archdiocese intentionally interfered with Payne-Elliott’s
employment and contractual relationships by demanding that Cathedral terminate his
employment and breach Payne-Elliott’s employment contract. Id. The Archdiocese’s
actions were not justified. Id. Payne-Elliott has suffered damages as a result. Id.
II. Procedural Background.
On August 15, 2019, Senior Judge Stephen R. Heimann accepted appointment as
Special Judge with the consent of all parties. App. Vol. II, p. 45. On August 20, 2019, the
12
Archdiocese filed a Motion to Dismiss, and Memorandum in Support, pursuant to T.R.
12(B)(1) and 12(B)(6). App. Vol. II, pp. 46-67. The Archdiocese argued that the Trial
Court lacked subject matter jurisdiction under the church autonomy doctrine. Id. at 57-
61. The Archdiocese also argued that Payne-Elliott’s complaint failed to state a claim for
which relief could be granted under the freedom of association doctrine, the ministerial
exception, or due to a failure to allege all necessary elements of the claims. Id. at 55-57,
61-66. Payne-Elliott filed his Response in Opposition to the Motion to Dismiss on
September 16, 2019. App. Vol. II, pp. 105-124. The Archdiocese filed a Reply on
September 25, 2019. App. Vol. II, pp. 125-143.
On May 1, 2020, the Trial Court issued a lengthy, detailed explanation denying
the Archdiocese’s Motion to Dismiss in all respects. App. Vol. II, pp. 158-175. On the
Archdiocese’s T.R. 12(B)(1) argument for lack of subject matter jurisdiction under the
church autonomy doctrine, the Trial Court concluded that it could not “determine that
the directive by the Archdiocese to terminate Payne-Elliott was made by the highest
authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.” Id.
at 165. The Trial Court further suggested that there were factual questions about
Cathedral’s reasons for termination that did not depend on Catholic doctrine (such as to
purportedly retain an economic benefit), indicating that it could not resolve these
questions on a motion to dismiss. Id. at 165-166. The Trial Court also rejected the
Archdiocese’s freedom of association defense, stating that the Archdiocese’s freedom of
association cases “were either brought by the State…or was brought by a claimant
asserting” a violation of state law. Id. at 171. It also noted that Payne-Elliott’s case “is
13
not about the Archdiocese kicking out Payne-Elliott or excluding Payne-Elliott from
entering into a relationship with the Archdiocese.” Id. The Trial Court noted, “it will be
important for discovery to take place so that the Court can have a better understanding
of the underlying relationships between the entities.” Id. In addressing the ministerial
exception defense, the Court noted that it was not clear whether Cathedral classified
Payne-Elliott as a minister. Id. at 173. The Trial Court also questioned whether the
Archdiocese had authority to classify Payne-Elliott as a minister, since, based on the
Complaint, it did not have authority to terminate Payne-Elliott on its own. Id. The Trial
Court determined that the “issue of whether Payne-Elliott was a minister cannot be
determined without additional discovery, specifically discovery relating to who had the
authority to make the ministerial decision, whether a ministerial decision was actually
made, or whether this is being brought up at this time simply as a defense.” Id. The Trial
Court also concluded that “[w]ithout further discovery and with all reasonable inferences
in Payne-Elliott’s favor, it is possible that Payne-Elliott could prove that at the time of
his termination, the Archdiocese was not justified[.]” Id. at 168.
On May 11, 2020, the Archdiocese filed a Motion to Reconsider. App. Vol. II, pp.
192-213. The Trial Court did not rule on the Motion to Reconsider, and it was deemed
denied after five days by operation of Ind. Trial Rule 53.4(B). App. Vol. II, p. 15. On May
29, 2020, the Archdiocese filed a Motion for Certification of the Order on Motion to
Dismiss. App. Vol. II, pp. 225-233. The Trial Court denied this Motion on June 29, 2020,
in a detailed six-page order explaining why the Archdiocese did not meet the criteria for
an interlocutory appeal under Ind. Appellate Rule 14(B)(1)(c). App. Vol. III, pp. 11-16.
14
On August 17, 2020, the Archdiocese filed a Verified Petition for Writ of
Mandamus and Writ of Prohibition with the Indiana Supreme Court, arguing that the
case should be dismissed under the same First Amendment defenses the Trial Court
rejected. Addend., pp. 11-31. On September 25, 2020, Special Judge Heimann entered a
Voluntary Order of Recusal for personal reasons. App. Vol. III, pp. 17-22. On December
10, 2020, the Supreme Court issued a six paragraph Published Order Denying Writ of
Mandamus and Prohibition in all respects. App. Vol. III, pp. 23-24. The Supreme Court
appointed the Hon. Lance D. Hamner as the new Special Judge. Id. at 24.
On January 26, 2021, the Archdiocese filed a Motion for Judgment on the
Pleadings. App. Vol. III, pp. 25-104. The Archdiocese’s Motion for Judgment on the
Pleadings repeated the arguments presented and rejected in its earlier, wholly denied
Motion to Dismiss, including First Amendment defenses based on church autonomy,
freedom of association, and the ministerial exception. Id. at 84. Plaintiff timely
responded to the Archdiocese’s Motion on March 1, 2021. App. Vol. III, pp. 115-144. The
Archdiocese filed a Motion for Leave to File Reply on March 8, 2021, which the Trial
Court granted on March 18, 2021. App. Vol. III, pp. 145-184.
On May 7, 2021, the Trial Court entered an “Order on Motion to Dismiss,”
dismissing Payne-Elliott’s Complaint. App. Vol. II, p. 26. The Trial Court’s bare bones
order stated merely that Plaintiff’s claims “fail pursuant to Rule 12(B)(1)…and Rule
12(B)(6) of the Indiana Rules of Trial Procedure[.]” Id. The Trial Court offered no further
explanation of the grounds for its ruling or the complete reversal of the prior Special
Judge’s detailed analysis and opinion. Id. The Trial Court then left the case in limbo for
15
eleven days, not entering a judgment of any kind on the docket. App. Vol. II, p. 24. On
May 18, 2021, the Trial Court entered a “Judgment of Dismissal” against Payne-Elliott,
which dismissed the Complaint with prejudice. App. Vol. II, pp. 27. Payne-Elliott timely
filed a Notice of Appeal. App. Vol. II, p. 24.
SUMMARY OF ARGUMENT
The Archdiocese caused Cathedral to fire Payne-Elliott as a teacher because of his
sexual orientation and same-sex marriage. That simple, but appalling fact is not
disputed. For decades, Indiana courts have prevented third parties from unjustifiably
interfering with contractual and employment relationships, and Payne-Elliott’s case is a
straight-forward attempt to hold the Archdiocese to the same legal standards and
principles that are generally applicable and religiously neutral. The Archdiocese seeks
expansion of First Amendment protections not only to bar Payne-Elliott’s suit, but to
effectively immunize religious organizations from civil liability on a large scale. The
Archdiocese is not above the law – we know this because there have been scores of
intentional tort suits successfully prosecuted against it. Raising a religious defense is
not the end of the story.
This Court should reverse the Trial Court’s four paragraph order ruling on a non-
ripe, already decided motion. The first Special Judge took seven months and 18 pages to
explain why subject matter jurisdiction existed and Payne-Elliott met the T.R. 12(B)(6)
pleading standards. The second Special Judge reversed that decision without
explanation. The record was the same. The law was the same. The judicial officer
16
changed. How are litigants, lawyers, and the public at large to have confidence in the
judiciary in a situation such as this?
The Trial Court ruled that it lacked subject matter jurisdiction, but did not say
why. The Trial Court ruled that Payne-Elliott failed to state a claim upon which relief
may be granted, but again did not say why. Since the Trial Court’s reasoning is unknown,
Payne-Elliott can only assume that it is based on one or more of the First Amendment
defenses asserted by the Archdiocese, which were: (1) church autonomy, (2) freedom of
association, and (3) the ministerial exception. All must fail.
First, the Trial Court’s conclusion that it lacked subject matter jurisdiction
conflicts with the Indiana Supreme Court’s precedent in Brazauskas v. Fort Wayne-
South Bend Diocese, Inc., which reversed dismissal of the case for lack of subject matter
jurisdiction (and decided it under the standard for summary judgment). 796 N.E.2d 286,
294 (Ind. 2003). First Amendment defenses under the religion clauses do not implicate
the court’s subject matter jurisdiction, under Brazauskas.
Second, the Archdiocese’s defenses fail on the merits (or, at minimum, cannot be
decided on T.R. 12 motions without further discovery). Although civil courts cannot
decide matters of internal church governance or ecclesiastical disputes, Payne-Elliott’s
claims do not require the court to do that. Payne-Elliott does not attempt to challenge
the Catholic Church’s position on same-sex marriage, but instead challenges the
Archdiocese’s actions taken against him that caused him harm in the form of terminated
employment. The question is not whether the Archdiocese’s position on same-sex
marriage is “justified.” The question is whether the Archdiocese’s actions in forcing an
17
independent high school to fire him were justified, even when the sincerity of its religious
belief is assumed. Properly framed, Payne-Elliott’s claims do not implicate internal
church governance, require the courts to resolve an ecclesiastical controversy, or
otherwise excessively entangle the courts with religion.
The freedom of association defense has no application here. Payne-Elliot is not
challenging any potential or terminated associational relationship with the Archdiocese.
The Archdiocese instead leaned on an associational relationship with Cathedral, but the
details of that relationship are unclear, and more discovery is needed before this defense
can be litigated. The freedom of association defense is rarely appropriate for T.R. 12
dismissal, as it relies on balancing of competing interests. To the extent the Trial Court
relied on the freedom of association defense, it clearly erred by dismissing Payne-Elliott’s
complaint on this ground.
The ministerial exception does not apply here. Payne-Elliott never worked for the
Archdiocese, and he has not filed employment discrimination claims against the
Archdiocese. The ministerial exception only applies to employment discrimination
claims brought by an employee against an employer. More fundamentally, Payne-Elliott
taught secular subjects - German language and social studies - to high school students,
many of whom were not Catholic. To the extent that the ministerial exception might
provide a defense, it requires a highly fact-sensitive inquiry, and that requires discovery.
It was likewise premature for the Trial Court to determine that the ministerial exception
barred Payne-Elliott’s claims (if it did so).
18
The Archdiocese also made a more traditional T.R. 12(B)(6) argument that Payne-
Elliott failed to plead sufficient factual allegations to support all of the elements of his
claims. Payne-Elliott pled all of the necessary facts and elements of his claims, but if the
Trial Court disagreed, the proper remedy would have been dismissal without prejudice,
with leave to amend, rather than dismissal with prejudice. The Trial Court identified no
pleading defects or deficiencies that could be cured through amendment.
The Trial Court also abused its discretion in reconsidering the prior judge’s earlier
rulings on the exact, same legal issues. First, the Trial Court ruled on the wrong motion.
The Trial Court had before it a “Motion for Judgment on the Pleadings,” but instead
issued an “Order on Motion to Dismiss.” This alone warrants reversal and reassignment
to a new judicial officer. Second, the Trial Court had previously ruled on, and denied,
the Archdiocese’s Motion to Dismiss on the same legal issues. Third, the prior Trial Court
judge had explained its reasons for denying the Motion to Dismiss. All that changed
between the Trial Court’s denial of the Motion to Dismiss in May 2020 and the Trial
Court’s granting of the Motion to Dismiss in May 2021 was the identity of the judge. This
Court should reverse the new Trial Court judge’s order summarily dismissing Payne-
Elliott’s case. Otherwise, every single trial court ruling followed by a change of judge
could be relitigated and reversed without explanation. This would engender a lack of
confidence in the judiciary. For example, in a child custody dispute, a judge could order
a child removed from one parent and placed with the other. After a change of judge is
taken, the second judge sends the child back to the other parent – without explanation.
It would also encourage litigants to re-litigate previously decided issues when a change
19
of judge is taken, significantly delay proceedings, and overload the courts with repetitive
motions and motions to reconsider.
While trial courts are free to alter or modify their prior non-final decisions, this
power should be limited to extraordinary circumstances, or when the prior ruling was
clearly erroneous. Any 180-degree reversals must be explained – for the parties, for the
legitimacy of the judicial system, and for fundamental fairness. The Trial Court wholly
failed in its job here.
Payne-Elliott asks the Court of Appeals to reverse the Order on Motion to Dismiss,
and remand to the case to the Trial Court for further proceedings, with reassignment to
a new Special Judge. Alternatively, Payne-Elliott requests that the Court of Appeals
permit Payne-Elliott, on remand, to move for Change of Judge, pursuant to T.R. 76(B)
and (C). The Trial Court ruled on a Motion to Dismiss, which preceded the close of the
pleadings, which should preserve the parties’ rights to seek a change of judge.
ARGUMENT
I. The Trial Court Erred by Dismissing the Case Under T. R. 12(B)(1).
After a detailed ruling holding that subject matter jurisdiction did exist, and a
subsequent reassignment, the new Special Judge apparently concluded (on unstated
grounds) that it lacked subject matter jurisdiction over the case. App. Vol. II, pp. 26-27,
158-175. The Trial Court offered no explanation for reversing the earlier decision in the
same case. Archdiocese’s sole argument under T.R. 12(B)(1) was based on the church
autonomy doctrine. App. Vol. II, p. 54; App. Vol. III, p. 86. Therefore, the Trial Court
likely decided: (a) that the church autonomy doctrine is a jurisdictional bar from suit;
20
and (b) that the church autonomy doctrine defeats Payne-Elliott’s claims. The Trial
Court erred on both scores.
A. This Court Reviews the T.R. 12(B)(1) Ruling De Novo.
“A motion to dismiss for lack of subject matter jurisdiction presents a threshold
question concerning the court’s power to act.” Perry v. Stitzer Buick GMC, 637 N.E.2d
1282, 1286 (Ind. 1994). “In ruling on a motion to dismiss for lack of subject matter
jurisdiction, the court may resolve factual disputes.” Id. “If the facts before the trial court
are not in dispute, then the question of subject matter jurisdiction is purely one of law.”
GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). Under those circumstances no
deference is afforded the trial court’s conclusion” and the appellate court’s review of the
trial court’s decision is de novo. Id. Alternatively, “where the facts are in dispute but the
trial court rules on a paper record without conducting an evidentiary hearing, then no
deference is afforded the trial court’s…findings or judgment” again requiring de novo
review. Id. The Trial Court did not say whether it resolved any disputed facts, but
indisputably ruled on a paper record and did not conduct an evidentiary hearing. App.
Vol. II, p. 26. Therefore, the de novo standard of review applies.
B. The Church Autonomy Doctrine Does Not Apply or Bar Jurisdiction.
Church autonomy does not deprive the Court of jurisdiction. In initially deciding
that it had subject matter jurisdiction, the Trial Court said, “[t]he doctrine of ‘Church
Autonomy’ does not preclude a Court from hearing all cases that involve churches.” App.
Vol. II, p. 161. “In a civil dispute involving a church as a party, the court has jurisdiction to
resolve the case if it can be done without resolving an ecclesiastical controversy.” Id. at 162.
21
This is in accord with Indiana law. “[C]ourts with general authority to hear matters like
employment disputes are not denied subject matter jurisdiction…because the defendant
pleads a religious defense.” Ind. Area Found. of the United Methodist Church, Inc. v.
Snyder, 953 N.E.2d 1174, 1178 (Ind. Ct. App. 2011) (citing Brazauskaus, 796 N.E.2d at
290). “The First Amendment does not immunize every legal claim against a religious
institution and its members.” Id. (quoting Brazauskas, 796 N.E.2d at 293-94). “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.
In Brazauskas, the Indiana Supreme Court held that the trial court “erred in
concluding that it lacked jurisdiction over this matter,” and “reverse[d] the dismissal of the
case for lack of subject matter jurisdiction.” 796 N.E.2d at 290, 294. The Trial Court’s
dismissal of Payne-Elliott’s case for lack of jurisdiction is clearly erroneous as a matter of
law under Brazauskas. App. Vol. II, p. 26. If the Trial Court decided that the church
autonomy doctrine applied, Brazauskas demonstrates that it should not be treated as a
jurisdictional barrier to suit. The Trial Court’s order did not explain at all why it concluded
that it lacked subject matter jurisdiction over the case and made no attempt to address or
distinguish Brazauskas in any way. Id. This alone warrants reversal and remand to a
different judicial officer.
The Archdiocese’s “church autonomy” defense is best addressed on a motion for
summary judgment, after discovery, rather than on a T.R. 12 motion. Calvary Temple
Church, Inc. v. Paino, 827 N.E.2d 125, 137 (Ind. Ct. App. 2005) transfer granted and appeal
dismissed, 841 N.E.2d 1133 (Ind. 2006) (finding that the “appropriate procedure” was to
22
treat the church’s 12(B)(1) motion to dismiss as a 12(B)(6) motion, and converting the
motion to a motion for summary judgment under T.R. 56) (citing Brazauskas, 796 N.E.2d
at 290). Any summary judgment ruling would be premature at this point in Payne-Elliott’s
case. The Archdiocese has not moved for summary judgment, and mostly blocked Payne-
Elliott’s attempts to engage in discovery. See App. Vol. II, pp. 6-13, 15-18, 20-21.
More importantly, the Archdiocese’s defense fails on the merits. Plaintiff’s claims
are not barred by “church autonomy.” Although the First Amendment “requires civil
courts to refrain from interfering in matters of church discipline, faith, practice, and
religious law,” it “does not entirely prohibit courts from deciding issues related to
religious organizations.” Christian Methodist Episcopal Church v. Grimes, 132 N.E. 3d
930 (Ind. Ct. App. 2019) (internal citations omitted). “Instead, courts can apply neutral
principles of law to churches without violating the First Amendment.” Id. (internal
citations omitted); see also Brazauskaus, 796 N.E.2d at 293 (“The Supreme
Court…[held] that the Free Exercise Clause does not exempt religiously motivated
action from neutral laws of general applicability.”) (citing Employment Div. v. Smith,
494 U.S. 872, 881-82, 890 (1990)). The U.S. Supreme Court and lower federal courts have
held that civil law may be applied to churches, despite the potential for religious
entanglement, in a variety of circumstances. See, e.g., Hernandez v. Comm’r of Internal
Revenue, 490 U.S. 680, 695-700 (1989) (affirming disallowance of tax deductions for
charitable contributions, and rejecting First Amendment challenges based on the
Establishment Clause and Free Exercise Clause); Tony & Susan Alamo Foundation v.
Secretary of Labor, 471 U.S. 290, 305 (1985) (religious employers are subject to the Fair
23
Labor Standards Act); Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (affirming
IRS’ revocation of private school’s tax-exempt status due to private school’s racially
discriminatory admissions standards on the basis of religious doctrine); Jones v. Wolf,
443 U.S. 595, 602-04 (1979) (resolving church property dispute based on neutral
principles); Herx v. Diocese of Fort Wayne-South Bend, Inc., 48 F. Supp.3d 1168, 1182-
1183 (N.D. Ind. 2014) (denying motion for summary judgment on Title VII gender
discrimination claim where Catholic school teacher was terminated for undergoing in
vitro fertilization, a medical treatment prohibited by Catholic Church teachings).
Payne-Elliott is not challenging Roman Catholic doctrine, and his case may be
decided without encroaching on the Archdiocese’s religious beliefs or excessively entangling
the Court in a religious controversy. Payne-Elliott’s claims may be, and should be, decided
by applying neutral principles of law. Payne-Elliott’s intentional interference claims are
based on legal elements of neutral and general applicability. See, e.g., Daly v. Nau, 167 Ind.
App. 541, 549 n.6 (Ind. 1975) (describing elements of claim and collecting cases);
Brazauskas, 796 N.E.2d at 296 (Sullivan, J., dissenting) (noting that the “tort of
interference with a prospective advantage” was “religiously neutral and generally
applicable.”). The Archdiocese argues that it forced Cathedral to terminate Payne-Elliott’s
employment for religious reasons, due to the Church’s prohibition of same-sex marriage.
But the Archdiocese goes too far by claiming immunity from liability or suit simply because
it has raised, rather than proven, a religious defense.
If the Archdiocese truly instructed Cathedral to terminate Payne-Elliott because of
Church teachings on marriage, one would expect discovery to confirm that the Archdiocese
24
enforced marriage teachings against heterosexuals and homosexuals alike. Discovery is
necessary to determine whether the Archdiocese’s directives to Cathedral and Brebeuf
Jesuit were specifically targeted at terminating Payne-Elliott and his spouse, as Payne-
Elliott has alleged. App. Vol. II, pp. 29-33, 43-44. Discovery is necessary with respect to
other employees of the Archdiocese (or schools within the Archdiocese’s control) to
determine whether the Archdiocese has instructed schools to terminate teachers alleged to
violate Church teachings on marriage, such as divorce and re-marriage without
annulment, unmarried co-habitation, marriage without the sacrament, or other practices. 2
Non-party discovery from Cathedral is also needed to determine whether Cathedral has
taken any steps to implement the Archdiocese’s directives, other than terminating Payne-
Elliott. Such evidence would bear on whether the Archdiocese enforced Church teachings
consistently against all employees or instead targeted homosexuals. Such an inquiry does
not require the Court to decide questions of Church doctrine. In employment discrimination
cases, Courts routinely evaluate the honesty of an employer’s stated reasons for
termination whether the employer is religious or not. See Herx, 48 F. Supp.3d at 1182 (“The
Diocese is understandably concerned about the possibility of a judge or jury conducting its
own secular analysis of Roman Catholic doctrine[.] That shouldn’t happen.”). The same
2 This would not require the Court or factfinder to impermissibly weigh the severity of religious offenses,
as the Archdiocese has argued. Courts may perform such an analysis if “a plaintiff avers that truly
comparable employees were treated differently following substantially similar conduct.” Curay-Cramer v.
Ursuline Acad. Of Wilmington, Del., Inc., 450 F.3d 130, 132 (3d Cir. 2006). Curay-Cramer’s outcome is
distinguishable because the plaintiff attempted to compare herself to males who had allegedly violated
unrelated religious teachings. Id. at 139 n.7. Payne-Elliott is not seeking to compare his conduct with
employees who have allegedly violated any types of Church teachings, but those who have engaged in
substantially similar conduct – i.e., relationships outside a “valid” marriage. See App. Vol. II, pp. 103.
(listing “[r]elationships that are contrary to a valid marriage” as a category of “Default”). Same-sex
marriage is not the only form of this – heterosexual couples may also engage in relationships that the
Catholic Church deems invalid.
25
principle can be applied here. If a Court or jury found that the Archdiocese’s actions
unfavorably treated homosexual employees, as compared to heterosexual employees who
violated similar Church teachings on marriage, it would support a claim that the
interference was unjustified, or “fair and reasonable under the circumstances,” as that
element requires. Winkler v. V.G. Reed & Sons, 638 N.E.2d 1228, 1235 (Ind. 1994).
Payne-Elliott’s case is distinguishable from the principal cases the Archdiocese
relied upon. See McEnroy v. St. Meinrad School of Theology, 713 N.E.2d 334 (Ind. Ct. App.
1999); Brazauskas, 796 N.E.2d at 294; Dwenger v. Geary, 113 Ind. 106 (Ind. 1888). Unlike
in those cases, the Court can resolve Payne-Elliott’s case without resolving the underlying
ecclesiastical controversy regarding Catholic teachings on same-sex marriage.
McEnroy involved “a professor of Catholic theology” at a “Catholic Seminary which
serves to train candidates for the priesthood and other ministries of the Roman Catholic
Church.” 713 N.E.2d at 335. The professor signed an open letter publicly opposing the
Pope’s teachings on the ordination of women as priests. Id. at 336. The Archabbot retained
the discretion to remove a seminary professor determined to be “seriously deficient” under
the Statement on Governance. Id. The Court concluded that, “[a]t a minimum, the trial
court would have to determine whether: (1) Archabbot Sweeney properly exercised his
jurisdiction over Saint Meinrad, (2) Dr. McEnroy’s conduct constituted public dissent or
caused her to be ‘seriously deficient,’ and (3) canon law required Archabbot Sweeney to
remove Dr. [McEnroy] from her teaching position.” Id. at 337. “Because the trial court
would be clearly and excessively entangled in religious affairs in violation of the First
Amendment, we find no error.” Id.
26
There are several important factual distinctions between Payne-Elliott’s case and
McEnroy that insulate the civil courts from any religious or ecclesiastical controversy that
may be present in Payne-Elliott’s case. McEnroy involved (a) a theology professor involved
in training priests, (b) who engaged in public dissent of the Pope’s teachings, and (c) whose
employment status was subject to the Archabbot’s discretion. Id. at 335-337. By contrast,
Payne-Elliott (a) taught world language and social studies to high school students, (b) was
not a religion teacher, (c) did not publicly advocate against Church teachings, and (d) did
not sign a contract that subjected his employment status to the discretion of the
Archbishop. App. Vol. II, pp. 28-33, 36-39. The Archdiocese’s argument for directing
Cathedral to terminate Payne-Elliott is far more tenuous and does not require
entanglement in religious affairs that the Court was concerned about in McEnroy. The
Court will be able to apply neutral principles of law without interfering with church
governance in such a case.
The Trial Court’s ruling is procedurally inconsistent with Brazauskas for the
reasons described above. Therefore, it is unlikely that the Trial Court relied on Brazauskas.
Nevertheless, Brazauskas is substantively distinguishable from Payne-Elliott’s case. That
case involved a former Director of Religious Education and Liturgy who alleged that, after
she was terminated, the Diocese prevented her from getting a job with another Catholic
employer (the University of Notre Dame) by informing it that she was suing the Diocese
over that termination decision. Brazauskas, 796 N.E.2d at 288. The Court held that the
defendants were entitled to summary judgment under the Free Exercise Clause of the First
Amendment. Id. at 294. Under “Ex Corde Ecclesiae,” a 1990 directive of the Pope, Catholic
27
universities and local diocesan officials are required to cooperate and communicate closely
with each other. Id. at 289, 293. The Court said that it could not “penalize communication
and coordination among church officials (all answerable to higher church authority that
has directed them to work cooperatively).” Id. at 294.
In contrast, Payne-Elliott was not directly employed by the Archdiocese, did not sue
the Archdiocese before he got fired, and had an existing contractual and employment
relationship with a third party, Cathedral, at the time of the Archdiocese’s tortious
communications with Cathedral. App. Vol. II, pp. 28-33, 36-39. Payne-Elliott was a world
language and social studies teacher, rather than a “Director of Religious Education and
Liturgy.” App. Vol. II, p. 29; See also Brazauskas, 796 N.E.2d. at 296 (Sullivan, J.,
dissenting) (“[C]ourts have not used the Free Exercise Clause to bar claims by non-
ministerial employees of a religious institution.”). Unlike in Brazauskas, “Ex Corde
Ecclesiae” does not apply (Cathedral is not a university), nor is there any directive from the
Pope identified here that the Archdiocese was allegedly required to follow. 796 N.E.2d at
293. Any such directive would have been initiated by the Archdiocese, rather than a higher
authority. App. Vol. II, p. 31. For these reasons, the factual allegations are not similar, and
Brazauskas does not bar Payne-Elliott’s claims.
As noted by Justice Sullivan in dissent, the Court did not thoroughly analyze the
church autonomy defense in Brazauskas to confirm its applicability to the facts of that
case. Id. at 295-296 (Sullivan, J., dissenting). For example, the Court did not determine: (a)
whether the dispute was religious in nature; (b) whether it could be resolved through
neutral principles of law; or (c) whether the Plaintiff’s prospective position “involved
28
ministerial-type duties.” Id. at 296 (Sullivan, J., dissenting). Here, the Trial Court
performed no analysis whatsoever of these questions (or any others for that matter), and
instead summarily dismissed Payne-Elliott’s claim.
In Dwenger, the Court said, “[n]o power save that of the church can rightfully declare
who is a Catholic.” 113 Ind. at 115. Aside from the vastly factual differences between
Dwenger and Payne-Elliott’s case (Dwenger involved a dispute involving burial rights at a
church cemetery), Payne-Elliott brings no challenge to the right to “declare who is a
Catholic.” Payne-Elliott instead challenges the Archdiocese’s directive to Cathedral (a non-
Archdiocesan school) to terminate his employment. App. Vol. II, pp. 31, 43-44. He seeks no
recognition by the Archdiocese as Catholic, and he makes no claim that Cathedral is or
should be recognized as Catholic by the Archdiocese. Instead, he seeks damages related to
the loss of his job due to the unlawful, unjustified actions of a third party who did not
employ him. App. Vol. II, pp. 32-33. The First Amendment does not give the Archdiocese
absolute religious freedom to engage in conduct that harms others, even if that conduct
arises out of religious beliefs. See Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940)
(distinguishing between the “freedom to believe” and the “freedom to act,” and stating that
the freedom to believe is “absolute,” but the freedom to act “cannot be.”).
The Court should reverse the Trial Court’s order of dismissal for lack of subject
matter jurisdiction. First, the church autonomy doctrine is not a jurisdictional defense,
under Brazauskas, Snyder, and Paino, and the Trial Court erred in treating it as one.
Second, the church autonomy doctrine does not bar Payne-Elliott’s claims on the merits
because his case does not ask or require civil courts to resolve an ecclesiastical controversy.
29
II. The Trial Court Erred by Dismissing the Case under T. R. 12(B)(6).
A. The Standard of Review is De Novo.
The standard for an appellate court’s review of a “trial court’s grant or denial of a
motion based on Trial Rule 12(B)(6) is de novo.” Charter One Mortg. Corp. v. Condra,
865 N.E.2d 602, 604 (Ind. 2007) (internal citation omitted). Similarly, the appellate
“court conducts a de novo review” of “a trial court’s decision on a motion for judgment on
the pleadings.” Davis v. Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001). 3
Indiana law disfavors motions to dismiss. Estate of Kitterman v. Pierson, 661 N.E.
2d 1255, 1257 (Ind. Ct. App. 1996). A motion to dismiss brought pursuant to T.R. 12(B)(6)
“tests the legal sufficiency of the claim, not the facts supporting it.” Charter One Corp.,
865 N.E. 2d at 604 (citing Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E. 2d 193, 196
(Ind. Ct. App. 1999), trans. denied). “When ruling on a motion to dismiss, the court must
view the pleadings in the light most favorable to the nonmoving party.” Thornton v.
State, 43 N.E. 3d 585, 587 (Ind. 2015). A “complaint is subject to dismissal only when it
appears to a certainty that plaintiff would not be entitled to relief under any set of facts.”
Pactor v. Pactor, 391 N.E. 2d 1148, 1152 (Ind. Ct. App. 1979).
“A motion for judgment on the pleadings…attacks the legal sufficiency of the
pleadings.” Davis, 747 N.E.2d at 1149 (internal citation omitted). “The test to be
applied…is whether, in the light most favorable to the non-moving party and with every
3 The Trial Court dismissed Payne-Elliott’s Complaint as if the pending motion had been a Motion to
Dismiss. App. Vol. II, p. 26. But, the Archdiocese filed a Motion for Judgment on the Pleadings, not a
Motion to Dismiss. App. Vol. III, pp. 25-26. Payne-Elliott includes the standards for review for both
motions to dismiss for failure to state a claim, and motions for judgment on the pleadings because of the
incongruity in the Trial Court’s order.
30
intendment regarded in his favor, the complaint is sufficient to constitute any valid
claim.” Id. (internal citation omitted). “In applying this test, the court may look only at
the pleadings, with all well-pleaded material facts alleged in the complaint taken as
admitted, supplemented by any facts of which the court will take judicial notice.” Id.
(internal citation omitted). “A motion for judgment on the pleadings should be granted
only when it is clear from the face of the complaint that under no circumstances could
relief be granted.” Id. at 1151 (internal citation omitted).
B. Payne-Elliott Presented Viable Claims against the Archdiocese.
The Trial Court made no effort to explain its reasons for dismissing Payne-Elliott’s
Complaint, or why Payne-Elliott allegedly failed to state a claim upon which relief may
be granted against the Archdiocese. App. Vol. II, pp. 26-27. The grounds relied upon by
the Archdiocese were: (1) church autonomy; (2) freedom of expressive association; (3) the
ministerial exception; and (4) failure to allege facts sufficient to support the claims at
issue. App. Vol. II, p. 54; App. Vol. III, p. 84. The Archdiocese’s church autonomy
argument is addressed above, and Payne-Elliott incorporates by reference its arguments
as if fully set forth here. It is unknown whether (and to what extent) the Trial Court
found the Archdiocese’s remaining arguments persuasive, but none of them warrant
dismissal. Payne-Elliott will address each in turn.
1. Freedom of Expressive Association Erects No Bar Here.
The right to engage in the freedom of expressive association is not absolute. Roberts
v. United States Jaycees, 468 U.S. 609, 623 (1984). “Infringements on that right may be
justified by regulations adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means significantly less restrictive
31
of associational freedoms.” Id. The weighing of these competing interests requires a factual
record before it can be resolved on the merits, which is why this defense is often decided on
summary judgment, after discovery has occurred. See, e.g., Boy Scouts of Am. v. Dale, 530
U.S. 640, 645 (2000); Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 220
(1989); Our Lady’s Inn v. City of St. Louis, 349 F. Supp. 3d 805, 809 (E.D. Mo. 2018). Even
if the defense applies (which Payne-Elliott disputes), discovery is necessary before this
defense can be fully evaluated, and the Archdiocese has improperly withheld discovery on
this defense.
The Archdiocese cited cases for its freedom of association argument which involved
a government actor or public official who was a party to the case or involved a private suit
to enforce a state statute. App. Vol. II, pp. 61-64; App. Vol. III, pp. 92-97. 4 Although the
Supreme Court has said that “the Free Speech Clause of the First Amendment…can serve
as a defense in state tort suits,” Snyder v. Phelps, 562 U.S. 443, 451 (2011), it is rare for
the right of expressive association to be invoked in a case solely involving common law
claims. 5 Without a specific governmental action, law, or regulation to challenge (other than
the general common law), it is very difficult to apply the test from Roberts, which focuses
4 See, e.g., Roberts, 468 U.S. 609 (suit against public officials); City Chapel Evangelical Free Inc. v. City of
South Bend ex rel. Dep’t of Redevelopment, 744 N.E.2d 443 (Ind. 2001) (suit by municipality); Eu, 489
U.S. 214 (suit against public officials); N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008)
(suit against state election board); Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) (suit against public
officials); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (suit
under Massachusetts statutory law); Dale, 530 U.S. 640 (suit under New Jersey statutory law); Christian
Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006) (suit against officials at a public university); Our Lady’s
Inn, 349 F. Supp.3d 805 (suit against municipality).
5 The Archdiocese cited to NAACP v. Claiborne, as an example of such a case, but that case never uses the
term “expressive association.” 458 U.S. 886 (1982). It discusses “political association,” and whether all
members of a collective effort may be liable for the illegal actions of some (but not all) members of the
group. Id. at 908, 931. That is different from the Archdiocese’s argument in this case, which is based on a
theory of forced inclusion of unwanted members. App. Vol. III, p. 96.
32
on “regulations”, and the state’s interests in adopting them, and alternative means of
achieving those interests. Payne-Elliott’s claims involve no governmental action, nor do
they arise under statutory law. Payne-Elliott’s claims arise under Indiana common law of
torts and have been recognized as common law torts for decades. See, e.g., Daly, 167 Ind.
App. at 549 n.6 (collecting cases). Additionally, while Payne-Elliott’s case is not an
employment case, the U.S. Supreme Court has rejected the freedom of expressive
association defense in the employment context. Hishon v. King & Spalding, 467 U.S. 69, 78
(1984) (“private discrimination may be characterized as a form of exercising freedom of
association protected by the First Amendment, but it has never been afforded
constitutional protections.”) (internal citation omitted).
The Archdiocese argued that it holds the freedom not to associate with Cathedral,
rather than Payne-Elliott. App. Vol. III, p. 96. But Cathedral is “affiliated with The
Brothers of Holy Cross,” not the Archdiocese. App. Vol. II, p. 43. Cathedral’s open letter of
June 23, 2019, stated the following regarding “Cathedral’s Catholic Identity”:
Cathedral was founded as a Catholic high school in 1918 by Bishop Joseph

Chartrand. The Archdiocese of Indianapolis owned Cathedral but engaged The
Brothers of Holy Cross to serve as faculty. Eventually, the archdiocese turned over
care of Cathedral to the Holy Cross brothers who ran it as a Catholic school for a
number of years. In 1972 Cathedral was incorporated for the sole purpose of
maintaining and operating a Roman Catholic secondary school. When Cathedral re-
affiliated with The Brothers of Holy Cross, the Board of Directors amended the
bylaws to state that the essential Holy Cross character of Cathedral as a Catholic
high school shall be at all times maintained and that a mission priority is to be an
educator in the faith.
Id. (emphasis added). When the Trial Court initially denied the Archdiocese’s Motion to
Dismiss, it said, “it will be important for discovery to take place so that the Court can have
a better understanding of the underlying relationship between the entities.” App. Vol. II,
33
p. 171. That remains true. Both the Archdiocese and Cathedral have withheld discovery
from Payne-Elliott about their relationship and potential association.
Even if the Archdiocese has an interest in “telling Cathedral what rules it needed
to follow in order to remain Catholic,” discovery is necessary to determine whether
Cathedral actually implemented the rules that the Archdiocese told it to follow, and, if
not, whether there have been any consequences for not doing so. The Archdiocese cannot
use the freedom of association defense to bar Payne-Elliott’s claims if it has applied its
policies inconsistently. Our Lady’s Inn, 349 F. Supp. 3d at 822 (“of course, a narrowly-
tailored anti-discrimination provision sill might have application to the Archdiocese if,
for example, if it were to apply its policies…to its employees unevenly.”) (citing Cline v.
Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000)).
The Archdiocese compared itself favorably to a Christian student organization at
a law school, which denied membership in its organization to people who disagreed with
its religious views on homosexuality. Christian Legal Soc’y v. Walker, 453 F.3d 853, 862
(7th Cir. 2006). In Walker, the Seventh Circuit directed the entry of a preliminary
injunction against the university, preventing it from revoking the group’s registered
student organization status. Id. at 867. Four years after Walker was decided, the U.S.
Supreme Court held, in Christian Legal Soc’y v. Martinez, that another public university
and law school did not violate the First Amendment and denied the Christian Legal
Society’s application to be a registered student organization due to its exclusion of
students who did not share its beliefs on homosexuality. 561 U.S. 661, 668-669 (2010).
Although Martinez did not expressly overrule Walker, it seriously calls into question its
34
viability, given the almost identical facts at issue. Even if Walker were still good law,
the circumstances are not comparable. The Archdiocese “comprises 126 parishes, 68
schools, six Catholic Charities agencies and many offices of ministry across central and
southern Indiana.” http://www.archindy.org (last visited July 6, 2021). It is far from a
small student organization whose message may be impeded through an association with
any single person.
Payne-Elliott’s prosecution of Indiana business tort claims has no impact on the
Archdiocese’s freedom of expressive association. To the extent that the Trial Court relied
on the freedom of expressive association in dismissing Payne-Elliott’s Complaint, it erred
in doing so.
2. Cathedral Did Not Consider Payne-Elliott a Minister.
The ministerial exception arises out of Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, where the U.S. Supreme Court held that the ministerial
exception bars “an employment discrimination suit brought on behalf of a minister,
challenging the church’s decision to fire her.” 565 U.S. 171, 196 (2012) (emphasis added).
The Supreme Court “express[ed] no view on whether the exception bars other types of
suits.” Id. The ministerial exception does not bar Payne-Elliott’s claims against the
Archdiocese for at least three reasons. First, the ministerial exception does not apply to
state law tort claims, or to claims that arise outside of an employer-employee
relationship (like this one). Second, the ministerial exception requires a fact-intensive
inquiry, which requires full discovery before it can be determined. Third, Payne-Elliott
was not a minister.
35
First, the ministerial exception does not apply because Payne-Elliott brings no
employment discrimination claims and the Archdiocese was not his employer. Courts in
other jurisdictions have found the ministerial exception inapplicable under similar
circumstances. See Kirby v. Lexington Theol. Seminary, 426 S.W.3d 597, 621 (Ky. 2014)
(holding that “Kirby’s status as a ministerial employee does not…bar the claims in
contract from proceeding.”); McRaney v. N. Am. Mission Bd. of the S. Baptist Convention,
Inc., 304 F. Supp.3d 514, 519-520 (N.D. Miss. 2018), (“Accordingly…because McRaney
was indisputably not employed by NAMB, this is not a claim between employer and
employee…and thus the ministerial exception does not apply to mandate dismissal of
any of McRaney’s claims.”); Cf. Demkovich v. St. Andrew the Apostle Par., No. 19-2142,
2021 U.S. App. LEXIS 20410, *27 (7th Cir. July 9, 2021) (“[A]s far as we can tell, no court
has held that the ministerial exception protects against criminal or personal tort
liability. Nor do we.”).
In Demkovich, the inapplicability of the ministerial exception to civil tort claims
was conceded by all sides. Id. at *43 (Hamilton, J., dissenting) (“[D]efendants and all
members of this court agree that even ministerial employees may assert tort claims
against supervising ministers and churches as institutions.”). 6 Demkovich is also limited
to claims involving an employment relationship. Id. at *13 (“The protected interest of a
religious organization in its ministers covers the entire employment relationship,
including hiring, firing, and supervising in between.”) (emphasis added). Payne-Elliott
filed no employment discrimination claims and had no employer-employee relationship
6 The Becket Fund for Religious Liberty, counsel for the Archdiocese, represents the Church in Demkovich.
Id. at *1.
36
with the Archdiocese, so this defense does not apply. His state law tort claims survive,
even if the ministerial exception applies.
Second, the ministerial exception should not be decided on a T.R. 12 motion. The
ministerial exception “operates as an affirmative defense…not a jurisdictional bar.”
Hosanna-Tabor, 565 U.S. at 195 n.4. It requires a “fact-intensive analysis, considering
(1) ‘the formal title’ given by the Church, (2) ‘the substance reflected in that title,’ (3) the
teacher’s ‘own use of that title,’ and (4) ‘the important religious functions’ [he] performed
for the Church.” Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 658 (7th
Cir. 2018). It is “usually…left for a jury.” Id. at 657.
This Court should refrain from evaluating the ministerial exception or considering
these factors at the pleadings stage. See, Collette v. Archdiocese of Chicago, 200 F.
Supp.3d 730, 733 (N.D. Ill. 2016) (“under settled Seventh Circuit precedent, the
ministerial exception provides a basis for the ‘unusual step’ of dismissing a
discrimination claim under Rule 12(b)(6) ‘only where the allegations of the complaint
itself set forth everything necessary to satisfy the affirmative defense.’”) (internal
citations omitted). Plaintiff’s Complaint and description of his title and job duties
undermine any defense that he is a “minister.” Payne-Elliott was a world language and
social studies teacher at Cathedral. App. Vol. II, p. 29. Cathedral employed Plaintiff,
gave him a title, assigned him job duties, and contracted with him. Id. at 29-33, 36-39.
Thus, this defense should not be decided until the parties have completed discovery on
the relevant factors. This will require discovery directed to Cathedral in addition to the
Archdiocese.
37
The U.S. Supreme Court’s Our Lady of Guadalupe School v. Morrissey-Berru
opinion changed nothing. 140 S. Ct. 2049 (2020). The Court did not expand the
ministerial exception to cover all teachers in religious schools, but merely “decide[d] the
case before [it].” Id. at 2069. Our Lady of Guadalupe was decided on summary judgment.
Id. at 2058-59. Echoing Hosanna-Tabor, the Court took “all relevant circumstances into
account to determine whether each particular position implicated the fundamental
purpose of the exception.” Id. at 2067. The Court reiterated that there was no “rigid
formula” for deciding the ministerial exception’s applicability. Id. at 2069. Our Lady of
Guadalupe does not alter the need for discovery before evaluating applicability of the
exception.
Third, Payne-Elliott’s case is clearly distinguishable from Our Lady of Guadalupe
on the facts. “What matters, at bottom, is what an employee does.” Id. at 2064. What
Payne-Elliott did was almost exclusively secular. Unlike the teachers in Our Lady of
Guadalupe, Payne-Elliott is a high school teacher, not an elementary school teacher.
App. Vol. II, p. 29. Elementary school teachers generally teach the same class of students
each and every day, for almost the entire day. The fifth-grade teachers in Our Lady of
Guadalupe taught religion in addition to their secular class subjects. 140 S. Ct. at 2056,
2058. The Supreme Court found the fact that both of the teachers taught religion to be
very significant. See id. at 2059 (“Like Morrissey-Berru, Biel instructed her students in
the tenets of Catholicism”); Id. at 2066 (“As elementary school teachers responsible for
providing instruction in all subjects, including religion, they were members of the school
staff who were entrusted most directly with the responsibility of educating their students
38
in the faith.”) (emphasis added); Id. at 2067 (“[T]hey were their students’ primary
teachers of religion. The concept of a teacher of religion is loaded with religious
significance.”) (emphasis added).
Payne-Elliott, by contrast, lacks that defining “ministerial” characteristic: he had
no responsibility for teaching religion to his students. Payne-Elliott taught world
language and social studies. App. Vol. II, p. 29. High school teachers generally teach
different classes of students, in different periods of the day, and teach a limited number
of subjects. In religious schools, aside from religion teachers, high school teachers are
not responsible for educating their students in the faith, nor are they the primary teacher
for the majority of their students. Of course, more discovery was needed in order to flesh
out these and other facts, but Payne-Elliott’s allegations in his Complaint, and
reasonable inferences drawn therefrom, should have been assumed to be true. Watson
v. Auto Advisors, Inc., 822 N.E.2d 1017, 1023 (Ind. Ct. App. 2005).
As with the Archdiocese’s other defenses, Payne-Elliott does not know whether
the Trial Court relied on the ministerial exception when dismissing Payne-Elliott’s
Complaint. App. Vol. II, pp. 26-27. If it did so, the Trial Court erred. Even after Our
Lady, the ministerial exception inquiry remains a fact-intensive one that must be done
case-by-case, and this analysis cannot be performed based on the complaint or pleadings
alone.
3. Payne-Elliott Properly Pled Claims for Intentional Interference.
Aside from First Amendment-related defenses, the Archdiocese also argued that
Payne-Elliott did not sufficiently plead facts to support the “absence of justification”
element of his interference claims. App. Vol. II, pp. 55-57; App. Vol. III, pp. 100-102. If
39
the Trial Court found this argument persuasive, it committed error. First, the
Archdiocese’s argument is wrong under Indiana law. Second, the proper remedy would
not have been to dismiss Payne-Elliott’s Complaint with prejudice, as the Trial Court
did, but to dismiss without prejudice, and grant the Plaintiff leave to amend in order to
cure any pleading defects. T.R. 12(B).
Claims for intentional interference with contract and intentional interference
with employment relationship have the same elements: “(i) existence of a valid and
enforceable contract [or employment relationship]; (ii) defendant’s knowledge of the
existence of the contract [or employment relationship; (iii) defendant’s intentional
inducement of breach of the contract [or interference with the employment relationship];
(iv) the absence of justification; and (v) damages[.]” Winkler, 638 N.E.2d at 1235; see also
Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282, 284 (Ind. 1991) (“The
parties in an employment at will relationship have no less of an interest in the integrity
and security of their contract than do the parties in any other type of contractual
relationship.” Payne-Elliott pled all five of these elements in his Complaint. App. Vol.
II, pp. 32-33.
The Archdiocese argued that absence of justification requires a showing that the
“breach must be malicious and exclusively directed to the injury and damage of another.”
Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E. 2d 1268, 1272 (Ind. Ct. App.
2000). This is not the correct legal standard. The Indiana Supreme Court’s binding,
precedential decision in Winkler considered seven factors to determine whether the
conduct was justified, without any mention of “malicious” conduct, let alone requiring
40
that such an element be pled. 638 N.E. 2d at 1235. Those factors are: “(a) the nature of
the defendant’s conduct; (b) the defendant’s motive; (c) the interests of the plaintiff with
which the defendant’s conduct interferes; (d) the interests sought to be advanced by the
defendant; (e) the social interests in protecting the freedom of action of the defendant
and the contractual interests of the plaintiff; (f) the proximity or remoteness of the
defendant’s conduct to the interference; and (g) the relations between the parties.” Id.
Morgan’s “malicious” standard has been rejected or ignored in more recent
Indiana Court of Appeals decisions. See, e.g., Coca-Cola Co. v. Babyback’s Int’l, Inc., 806
N.E. 2d 37, 51 (Ind. Ct. App. 2004) (declining to follow Morgan and concluding that the
court is bound to follow the Supreme Court’s analysis in Winkler) (affirmed, 841 N.E. 2d
557 (Ind. 2006)); Allison v. Union Hosp., Inc., 883 N.E. 2d 113, 118 (Ind. Ct. App. 2008)
(“Whether Union harbored actual ill will towards the applicants is irrelevant for the
purpose of determining whether it committed this tort.”). The Indiana Supreme Court
has never endorsed the “malicious” standard. See Am. Consulting, Inc. v. Hannum Wagle
& Cline Eng’g, Inc., 136 N.E.3d 208, 215 (Ind. 2019) (acknowledging split in authorities
without directly resolving it).
The Archdiocese claims that the “weight of recent authority” favors requiring
malice, but entirely ignores that this authority stems from a flawed source. The Court of
Appeals’ use of the “malicious” language is traced back to the Indiana Court of Appeals’
panel decision in Winkler. 619 N.E.2d 597, 598 (Ind. Ct. App. 1993). But this conflicts
with the Indiana Supreme Court’s subsequent decision in the very same case, which said,
“the weight to be given each consideration may differ from case to case depending on the
41
factual circumstances, but the overriding question is whether the defendants’ conduct
has been fair and reasonable under the circumstances.” Winkler, 638 N.E.2d at 1235. If
malice were required, as the Court of Appeals had posited, the Supreme Court would
have almost certainly stated so. Further, if any particular factors were to be given more
weight than others (such as the nature of conduct or motive of the defendant), the
Supreme Court would not have said that the weight of each factor would “differ from
case to case.” Id.
Even if malice were required (which it is not), a fair reading of Payne-Elliott’s
Complaint illustrates that Archdiocese acted maliciously and exclusively directed to the
injury and damage of Payne-Elliott and his spouse. Payne-Elliott alleges that the
Archdiocese specifically targeted him and his spouse for termination by Cathedral and
Brebeuf Jesuit. App. Vol. II, pp. 29-33, 41, 43-44. Cathedral’s letter to the “Cathedral
Family” said, “Archbishop Thompson made it clear that Cathedral’s continued
employment of a teacher in a public, same-sex marriage would result in our forfeiting of
our Catholic identity due to our employment of an individual living in contradiction to
Catholic teaching on marriage.” App. Vol. II, p. 43. (emphasis added). It concluded that
it needed to “separate from the teacher.” Id. at 44 (emphasis added). Although Cathedral
did not mention Payne-Elliott by name, the context is clear that the directive was about
preventing a specific individual from teaching, rather than implementation of a more
general policy. If Cathedral has taken no other action against any other teacher, this
would undermine any argument that the Archdiocese gave a general directive to require
teachers to abide by Catholic Church teachings in their private lives, as opposed to a
42
directive targeted specifically at terminating Payne-Elliott due to his same-sex marriage.
If true (discovery has not occurred yet), this would be more than adequate for Payne-
Elliott to prevail.
The Archdiocese also argued that the Complaint omits allegations of lack of
justification even if no malice is required. But that is not the case. As explained above,
if the Archdiocese has targeted individuals in same-sex marriages, while ignoring other
opposite-sex relationships that Catholic doctrine considers to be invalid (such as such as
divorce and re-marriage without annulment, unmarried co-habitation, and/or marriage
without the sacrament) that would support a determination that the Archdiocese’s
actions were not fair and reasonable under the circumstances.
In any event, these claims cannot and should not have been decided on the
pleadings (to the extent they were). Application of the seven factors from Winkler to
determine whether a defendant’s conduct is justified often involves a “highly fact
sensitive inquiry” not easily resolved through dispositive motions. Guinn v. Applied
Composites Eng’g, Inc., 994 N.E.2d 1256, 1275 (Ind. Ct. App. 2013) (denying summary
judgment). Analysis of these facts would be premature before complete discovery.
Payne-Elliott pled sufficient facts to meet the low standard of stating a claim.
However, even if the Trial Court disagreed, it erred by not permitting Payne-Elliott to
amend his Complaint and re-plead his claims. “T.R. 12(B) allows a party an absolute
right to amend a pleading when a motion to dismiss for failure to state a claim is
sustained,” regardless of whether the motion arises under T.R. 12(B) (motion to dismiss)
or T.R. 12(C) (motion for judgment on the pleadings). Davis, 747 N.E.2d at 1151 (internal
43
citation omitted) (emphasis added). Payne-Elliott has never filed an Amended Complaint
at any time. App. Vol. II, pp. 6-25. The Trial Court abused its discretion by dismissing
Payne-Elliott’s Complaint with prejudice, without affording Payne-Elliott leave to
amend his Complaint. App. Vol. II, pp. 26-27.
III. The Trial Court Abused its Discretion in Reversing the Prior Trial Court
Judge.
In addition to all of the reasons that the Trial Court’s ruling should be reversed
on the merits (as discussed above), the Trial Court’s order is fundamentally at odds with
its own prior orders in the case, including an order that previously denied the
Archdiocese’s motion to dismiss in its entirety on the very same legal issues. App. Vol.
II, pp. 158-175. Although the Trial Court has the power to reconsider and modify its own
prior orders, the about-face that occurred here is highly unusual, extraordinary, and
wholly lacking in reasoning and should not be afforded deference.
A. Abuse of Discretion Standard of Review
The appellate court reviews a “trial court’s reconsideration of its prior rulings for
abuse of discretion.” Estate of Hammar v. Hammar, 847 N.E.2d 960, 962 (Ind. 2006).
“Generally, until a judgment is entered, a trial court can amend, modify, or change an
earlier decision.” Stewart v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542,
545 (Ind. Ct. App. 2002). Although a court has the power to revisit its prior decisions, “as
a rule courts should be loathe to do so in the absence of extraordinary circumstances.”
Certain Northeast Annexation Area Landowners v. City of Fort Wayne, 622 N.E.2d 548,
549 (Ind. Ct. App. 1993); see also Hopkins v. State, 782 N.E.2d 988, 990 (Ind. 2003)
(stating that “extraordinary circumstances” include “where the initial decision was
44
‘clearly erroneous and would work manifest injustice.’”) (citing State v. Huffman, 643
N.E.2d 899, 901 (Ind. 1997)). The prior Trial Court ruling denying the motion to dismiss
was not “clearly erroneous” because the Indiana Supreme Court denied the Archdiocese’s
Petition for Writ of Mandamus challenging that ruling.
Additionally, the Indiana Trial Rules discourage repetitive motions and motions
to reconsider. T.R. 53.4. Such a motion “shall not delay…any proceedings in the case, or
extend the time for any further required or permitted action[.]” T.R. 53.4(A). “Unless
such motion is ruled upon within five (5) days it shall be deemed denied, and entry of
service of notice of such denial shall not be required.” T.R. 53.4(B).
B. The Trial Court Decided the Wrong Motion.
First, the Trial Court did not rule on the motion before it, choosing instead to
revisit an earlier motion and decision from the prior Trial Court judge, without even
being asked to do so. The Trial Court titled its Order as an “Order on Motion to Dismiss,”
and dismissed Payne-Elliott’s Complaint. App. Vol. II, p. 26. The Archdiocese filed a
Motion for Judgment on the Pleadings, not a Motion to Dismiss. App. Vol. III, pp. 25-26.
The Order acknowledges that the Archdiocese filed a Motion for Judgment on the
Pleadings, and that Payne-Elliott filed a response thereto, but otherwise reads as if the
matter is before the Court on a motion to dismiss. App. Vol. II, p. 26. The Trial Court
said that had “received and reviewed all pleadings and memorandums in this matter,”
implying that it was reviewing pleadings and memoranda filed earlier in the case, rather
than those that related to the pending motion. Id. At best, the Order is ambiguous as to
whether it is deciding a Motion to Dismiss or a Motion for Judgment on the Pleadings.
45
The Trial Court’s subsequent entry, docketed 11 days later and titled a “Judgment
of Dismissal,” does little to clarify the ambiguity of its ruling. App. Vol. II, p. 27. This
Order describes the earlier Order as an “Order on Defendant’s Motion to Dismiss,” and
dismissed Payne-Elliott’s Complaint with prejudice. Id. If anything, the Judgment of
Dismissal indicates that the Trial Court decided the case on the motion to dismiss, rather
than the motion for judgment on the pleadings.
The Archdiocese may argue that this doesn’t matter, because the legal issues
presented in both motions were the same, and this Court’s review of those issues is the
same regardless of whether this appeal arises out of T.R. 12(B) or 12(C). Nevertheless,
the lack of attention to detail and brevity of the Trial Court’s Order and Judgment is
indicative of the Trial Court’s overall cursory and perfunctory treatment of Payne-
Elliott’s claims. If the Trial Court couldn’t even clearly identify which motion it is
deciding, there is little reason to believe that the Trial Court thoroughly evaluated and
considered the legal issues that were before it. Moreover, there was no reason for the
Trial Court to revisit the prior ruling sua sponte when it had a fully briefed and pending
motion before it on the same legal issues. The Trial Court abused its discretion by
reconsidering a prior motion and ruling instead of deciding the motion pending before it.
C. The Trial Court Reversed the Prior Trial Court Judge without Basis.
Regardless of which motion the Trial Court decided, its Order reverses the prior
Trial Court judge’s order denying the Archdiocese’s motion to dismiss, which thoroughly
evaluated, analyzed and dispensed with the same legal arguments that the Archdiocese
presented to the current Trial Court judge.
46
The Trial Court originally denied the Archdiocese’s Motion to Dismiss. App. Vol.
II, pp. 158-175. In its initial ruling, the Trial Court correctly recognized that church
autonomy does not “preclude a Court from hearing all cases that involve churches,” but
only “over certain issues where the Court would be interfering with the highest authority
within an ecclesiastical body or church.” Id. at 161. The Trial Court therefore found that
it could “avoid the religious controversy by deferring to the highest authority within the
ecclesiastical body.” Id. at 162. (emphasis in original) (internal citations omitted). The
Trial Court described Cathedral as an “‘independent’ high school that has a relationship
with the Archdiocese.” Id. at 161. This is different from “Archdiocesan high schools such
as Roncalli, Scecina, and Bishop Chatard.” Id. at 164. The Trial Court noted that it did
“not know the exact relationship between Cathedral and the Archdiocese because
discovery has not yet been completed.” Id. at 162. However, the Trial Court said that
there was “a reasonable chance” that Cathedral is “not under the direct authority of the
Archdiocese.” Id. at 164. If so, the Archdiocese would not be the “highest authority in the
ecclesiastical body of Cathedral” and church autonomy would not apply. Id. at 165. The
Trial Court distinguished McEnroy, since there was no question in that case that the
Archabbot was the “highest authority within the ecclesiastical body of St. Meinrad.” Id.
at 164-165.
Even if the Archdiocese were the highest authority in the ecclesiastical body of
Cathedral, the next step in the analysis would be to determine whether Payne-Elliott’s
claims could be decided “without resolving an ecclesiastical controversy.” Id. at 162, 165-
166. The Trial Court’s Order suggested that the adjudication of this matter would not
47
require the Trial Court to decide a matter of religious doctrine. Id. For example, the Trial
Court said that if “Payne-Elliott was terminated by Cathedral for an economic benefit
(i.e., Cathedral’s 501(c)(3) tax-exempt status) to Cathedral at the direction of the
Archdiocese, then that is a different matter than Catholic doctrine.” Id. at 166.
The Trial Court likewise rejected the Archdiocese’s arguments on freedom of
expressive association, the ministerial exception, and the pleading requirements,
correctly finding that all of these defenses could not be adjudicated in the Archdiocese’s
favor until after discovery had taken place on these issues. Id. at 168-174.
After the prior special judge recused himself, and a new special judge was
appointed, the Trial Court changed its position on at least one of these issues for
unknown and unspecified reasons. App. Vol. II, p. 26. The Trial Court did nothing to
acknowledge the prior judge’s decisions involving the same legal issues, except to say
that it had “authority to consider new and pending issues and reconsider previous orders
in the case.” Id. The way in which the Trial Court exercised its authority here warrants
scrutiny and strongly suggests abuse of discretion. It discarded a thorough, detailed, and
well-reasoned opinion and order on the pending legal issues and substituted its own
order with no opinion or analysis at all.
This case is distinguishable from Stewart v. Kinglsey Terrace Church of Christ,
Inc., 767 N.E.2d at 545-546. In Stewart, the plaintiff filed a complaint for breach of
contract against a church arising out of an employment contract to serve as the church’s
minister. Id. at 544. The church filed a motion to dismiss for lack of subject matter
jurisdiction, which the trial court denied. Id. at 545. Subsequently, a change of judge
48
occurred, and the church filed a motion for summary judgment. Id. The new trial court
judge revisited the issue of subject matter jurisdiction when considering the motion for
summary judgment, and determined that the case should be dismissed for lack of subject
matter jurisdiction. Id. On appeal, this Court said, “we cannot say that the subsequent
judge abused her discretion…when she questioned whether the trial court had
jurisdiction to decide this matter. The issue of subject matter jurisdiction…is certainly
extraordinary enough to warrant a trial court’s exercise of its discretion to insure that
the issue was decided correctly.” Id. at 545-546.
Although the Trial Court’s dismissal order in Payne-Elliott’s case also relies in
part on the alleged lack of subject matter jurisdiction, the church autonomy doctrine is
no longer a defense that implicates subject matter jurisdiction. Brazauskas, 796 N.E.2d
at 294 (reversing dismissal for lack of subject matter jurisdiction). 7 The Trial Court’s
legally erroneous and unsupported conclusion that it lacked subject matter jurisdiction
cannot demonstrate the “extraordinary circumstances” required to revisit and change
the prior trial judge’s ruling here.
D. The Trial Court Failed to Explain Why the Prior Ruling Was Wrong.
Stewart is distinguishable for another reason – the trial court in that case issued
a detailed order explaining its reasoning, which is lacking here. The Trial Court issued
an eight-page order, with over five pages related to subject matter jurisdiction, which
described the applicable facts and law related to the issue. Addend., pp. 3-10. By
contrast, the Trial Court’s Order in Payne-Elliott’s case is one page long, does not
7Brazauskas was decided after Stewart, and by a higher court (the Indiana Supreme Court). Brazauskas,
796 N.E.2d at 288; Stewart, 767 N.E.2d at 543.
49
describe the applicable facts or law at all, and summarily concludes that the Complaint
should be dismissed under T.R. 12(B)(1) and 12(B)(6). App. Vol. II, p. 26. The Trial Court
made no attempt to explain why it was reconsidering or vacating the ruling of the prior
judge, or why the prior order was allegedly incorrect. Id. It did not identify which of the
Archdiocese’s defenses that it relied on – the parties and this Court do not know whether,
and to what extent, the Trial Court relied on the freedom of expressive association, the
ministerial exception, and/or the absence of justification. The Trial Court made no
attempt to explain why “extraordinary circumstances” warranted the change in decision,
why the prior order was “clearly erroneous,” or why it would “work manifest injustice.”
Hopkins, 782 N.E.2d at 990. It couldn’t be any of those things, because the Indiana
Supreme Court denied the Archdiocese’s petition for writ of mandamus (that was based
on the same First Amendment arguments) in between the two rulings. App. Vol. III, pp.
23-24.
To be sure, a trial court order summarily dismissing a complaint under T.R. 12 is
not prohibited, nor is it particularly uncommon in some types of matters. Trial Courts
also have discretion to change their prior decisions (or, if the judge has been replaced,
the decisions of the prior trial court judge). But combining these, as the Trial Court did
here, is troubling. As the plaintiff’s lawyers argued in Stewart, a hands-off approach to
the Trial Court’s reconsiderations of its prior decisions could lead to motions to
reconsider and repetitive motions on issues that have already been decided, and “would
result in parties constantly rearguing issues that were previously decided.” Stewart, 767
N.E.2d at 545. If the Trial Court is not even obligated to explain why it is modifying or
50
changing a prior order on a potentially case-dispositive issue, then litigants are even
further incentivized to seek re-briefing and re-argument of previously decided issues.
This is in conflict with the purpose of T.R. 53.4, which is intended to discourage such
practices (or at least prevent such practices from delaying case proceedings). Trial courts
should be “loathe” to revisit prior decisions. Stewart, 767 N.E.2d at 545. Simply because
the Trial Court has discretion does not mean that this discretion can never be abused.
The Trial Court has abused it here.
E. The Trial Court Erred by Assuming that the Indiana Supreme Court
Ordered it to Change the Prior Trial Court Judge’s Ruling.
The Trial Court judge appears to have been influenced by a single line in the
Supreme Court’s Order that appointed him, which stated, “[t]his order vests Judge
Hamner jurisdiction over [the] case, including authority to consider new and pending
issues and reconsider previous orders in the case.” App. Vol. III, p. 24 (citing Matter of
Estate of Lewis, 123 N.E.3d 670, 673 (Ind. 2019)). The Trial Court repeated this portion
of the Supreme Court’s Order in its own Order dismissing Payne-Elliott’s case. App. Vol.
II, p. 26. To the extent that the Trial Court believed that it was being directed by the
Supreme Court to dismiss the case (or otherwise rule against Payne-Elliott), such a
conclusion was erroneous.
The Archdiocese petitioned the Supreme Court for a writ of mandamus and writ
of prohibition “compelling the court to dismiss the case.” App. Vol. III, p. 23. The petition
was denied because the Archdiocese did not persuade a majority of the Supreme Court
to hold a hearing on its petition, let alone issue a writ. Id. There were zero votes to issue
a writ. Id. Therefore, the Supreme Court Order cannot plausibly be interpreted as
51
supporting the Archdiocese’s position on the merits of the cases or the Archdiocese’s
defenses. Id. at 23-24. If anything, it does the opposite.
In any event, the vesting of authority “to consider new and pending issues and
reconsider previous orders” did not provide the Trial Court with any special or extra
authority or power that a trial court does not possess in a normal case. Id. at 24. The
verbiage merely parrots the applicable legal standard under Lewis and similar cases.
123 N.E.3d at 673. Nor does it amount to an advisory opinion from the Supreme Court
on what it believes the outcome of this case should be. The Supreme Court has repeatedly
stated that it does not provide advisory opinions. See, e.g., Hill v. State, 592 N.E.2d 1229,
1230 (Ind. 1992) (citing State ex rel. Goldsmith v. Superior Court of Marion County,
Criminal Div., etc., 463 N.E.2d 273, 275 (Ind. 1984)).
The Court should reverse the Trial Court’s Order on Motion to Dismiss and
remand the case to the Trial Court, with reassignment to a new Special Judge.
IV. Payne-Elliott Should Be Permitted an Automatic Change of Judge.
If the Court reverses and remands to the Trial Court, Payne-Elliott requests that
this Court find that Payne-Elliott’s right to seek a change of judge is preserved pursuant
to T.R. 76(B)(C). “In civil actions, where a change may be taken from the judge, such
change shall be granted upon the filing of an unverified application or motion without
specifically stating the ground therefor by a party or his attorney.” T.R. 76(B). “[A] party
shall be entitled to only one [1] change from the judge.” Id. Payne-Elliott has not
previously moved for change of judge. App. Vol. II, pp. 6-25.
52
“Any such application for change of judge…shall be filed no later than ten [10]
days after the issues are first closed on the merits.” T.R. 76(C). “Normally, the issues are
first closed on the merits when the defendant files an answer.” Lake County Juvenile
Detention Ctr. v. J.M.D., 704 N.E.2d 149, 150 (Ind. Ct. App. 1999). “In the event a change
of judge is granted…a request for a change of judge…may be made by a party still
entitled thereto within ten [10] days after the special judge has qualified[.]” T.R. 76(C)(4).
“[S]ubdivision (4)…shall not operate to reduce the period prescribed in subdivisions
(C)…[.]” Id.
The Archdiocese filed its Answer to Payne-Elliott’s Complaint after the Trial
Court denied its Motion to Dismiss, and before the Supreme Court appointed Judge
Hamner. App. Vol. II, pp. 14-15; App. Vol. III, pp. 23-24. Although this would normally
prohibit Payne-Elliott from filing for change of judge now, it would be inequitable to
disallow him to do so under the unique procedural circumstances that are present here.
If the Trial Court had initially granted the Archdiocese’s Motion to Dismiss, and
Payne-Elliott appealed, and this Court reversed and remanded, Payne-Elliott would
have been able to move for a change of judge following remand (provided he did so before
the pleadings closed, or within ten days after they closed). Instead, the Trial Court
initially denied the Archdiocese’s Motion to Dismiss, which caused the Archdiocese to
file its Answer. App. Vol. II, pp. 14-15. But now, the new Trial Court judge has revisited
that ruling sua sponte and dismissed Payne-Elliott’s case. App. Vol. II, pp. 26-27. There
is essentially no difference procedurally, especially since the Trial Court’s Order is titled,
“Order on Motion to Dismiss.” Id. at 26. If the Trial Court reconsidered the former judge’s
53
prior ruling on the Motion to Dismiss, that should effectively erase the case proceedings
that took place between the date of the order denying the motion (May 1, 2020), and the
date of the order granting the motion (May 7, 2021). App. Vol. II, pp. 14-24. This includes
the Archdiocese’s answer (May 11, 2020). App. Vol. II, p. 176. It would unfairly penalize
Payne-Elliott to preclude him from seeking a change of judge when he would and should
have been entitled to a change of judge on remand following an appeal if the motion to
dismiss had simply been granted from the beginning.
Additionally, the Trial Court’s errors, both substantively and procedurally,
demonstrate that it has not given sufficient care and consideration to the parties’ claims
and defenses. As noted above, the Trial Court’s dismissal based on subject matter
jurisdiction violates Indiana Supreme Court precedent. The Trial Court ruled on the
wrong motion, not the motion that was before it. It made no attempt to explain the
grounds for its ruling, or why it disagreed with the prior ruling on the same legal issues.
Payne-Elliott is mindful that the current Trial Court judge did not volunteer for
this appointment and was required to comply with the Supreme Court’s order in
accepting it. If the Trial Court’s attention were divided, there could be understandable
reasons for that (such as a heavy caseload). But if so, that supports assigning another
judge to the case on remand, because it will relieve the special judge of any additional
burden he may have as a result of this appointment.
CONCLUSION
The Trial Court’s Order dismissing Payne-Elliott’s Complaint for lack of subject
matter jurisdiction should be reversed, and the Court should remand the case to the Trial
54
Court for further proceedings consistent herein. The Court should also order that Payne-
Elliott may file a change of judge motion on remand pursuant to T.R. 76(B) and (C).
Respectfully submitted,
/s/ Kathleen A. DeLaney

Christopher S. Stake (#27356-53)
317-920-0400
Attorneys for Appellant Joshua Payne-Elliott
55
WORD COUNT CERTIFICATE
I verify that this brief contains no more than 14,000 words in that it contains
13,913 words, including footnotes, but excluding the items permitted to be excluded
by Ind. Rule App. Procedure 44(C).
/s/ Kathleen A. DeLaney

56
CERTIFICATE OF SERVICE
I certify that on July 21, 2021, Appellant’s Brief was filed using the Indiana E-
Filing System (IEFS) and contemporaneously served through IEFS upon the following
counsel of record:
John S. (Jay) Mercer

Wooton Hoy, LLC
13 North State Street, #2A
Greenfield, IN 46140
[email protected]
Christopher Pagliarella
Daniel Blomberg
Luke Goodrich
The Becket Fund for Religious Liberty
191 Pennsylvania Ave. NW Suite 400
Washington, DC 20006
[email protected]
[email protected]
[email protected]
/s/ Kathleen A. DeLaney________


57

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Filed: 7/21/2021 3:51 PM

IN THE INDIANA COURT OF APPEALS

BRIEF OF APPELLANT JOSHUA PAYNE-ELLIOTT

Kathleen A. DeLaney (#18604-49)

Attorneys for Appellant

Am. Consulting, Inc. v. Hannum Wagle & Cline Eng’g, Inc.,

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .............................................................. 32

Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ...................................................... 32

Cantwell v. Connecticut, 310 U.S. 296 (1940) ................................................................. 29

Certain Northeast Annexation Area Landowners v. City of Fort Wayne,

Christian Methodist Episcopal Church v. Grimes, 132 N.E. 3d 930

Curay-Cramer v. Ursuline Acad. Of Wilmington, Del., Inc., 450 F.3d 130

Daly v. Nau, 167 Ind. App. 541 (Ind. 1975) ................................................................24, 33

Demkovich v. St. Andrew the Apostle Par., No. 19-2142,

Dwenger v. Geary, 113 Ind. 106 (Ind. 1888) ...............................................................26, 29

Employment Div. v. Smith, 494 U.S. 872 (1990) ............................................................. 23

Estate of Hammar v. Hammar, 847 N.E.2d 960 (Ind. 2006) .......................................... 44

Estate of Lewis, 123 N.E.3d 670 (Ind. 2019) .............................................................. 51-52

GKN Co. v. Magness, 744 N.E.2d 397 (Ind. 2001) .......................................................... 21

Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680 (1989) ................................... 23

Herx v. Diocese of Fort Wayne-South Bend, Inc., 48 F. Supp.3d 1168

Hill v. State, 592 N.E.2d 1229 (Ind. 1992)....................................................................... 52

Hishon v. King & Spalding, 467 U.S. 69 (1984) .............................................................. 33

Hopkins v. State, 782 N.E.2d 988 (Ind. 2003) ...................................................... 44-45, 50

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

Ind. Area Found. of the United Methodist Church, Inc. v. Snyder,

Jones v. Wolf, 443 U.S. 595 (1979) ................................................................................... 24

Lake County Juvenile Detention Ctr. v. J.M.D., 704 N.E.2d 149

McEnroy v. St. Meinrad School of Theology, 713 N.E.2d 334

McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc.,

Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E. 2d 1268

NAACP v. Claiborne, 458 U.S. 886 (1982) ....................................................................... 32

Snyder v. Phelps, 562 U.S. 443 (2011) ............................................................................. 32

State v. Huffman, 643 N.E.2d 899 (Ind. 1997) ........................................................... 44-45

Stewart v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542

Thornton v. State, 43 N.E. 3d 585 (Ind. 2015)................................................................. 30

Ind. Trial Rule 12....................................................................................................... passim

Ind. Trial Rule 53.4................................................................................................14, 45, 51

Ind. Trial Rule 76....................................................................................................... passim

STATEMENT OF THE ISSUES

1. Whether the Trial Court erred by dismissing Joshua Payne-Elliott’s

12(B)(1) after denying a motion on that same basis.

denying a motion on that same basis.

clearly erroneous, or otherwise demonstrating extraordinary circumstances.

reversed and remanded.

STATEMENT OF THE CASE

directed Cathedral to terminate Payne-Elliott because of his sexual orientation and

employment and contract with Cathedral. Id. at 28-34.

The Archdiocese moved to dismiss Payne-Elliott’s claims, arguing First

Dismiss in a lengthy and detailed opinion running 18 pages, which thoughtfully

25-104. Payne-Elliott opposed the Motion. App. Vol. III, pp.115-144.

“dismissed with prejudice.” App. Vol. II, p. 27.

at 29. Payne-Elliott’s spouse teaches at Brebeuf Jesuit Preparatory School (“Brebeuf

at Archdiocesan schools. Id. at 29-30.

pending resolution of the appeal. App. Vol. II, p. 145, 163.

Payne-Elliott chaperoned an international, school-sponsored student trip for