Indiana Law Review


State and Federal Constitutional Law Developments
Affecting Indiana Law

Rosalie Berger LeVinson*

Introduction

As the United States Supreme Court continues to narrow the scope

of the federal constitution, there has been a movement across the

country to explore state constitutions as a largely untapped source for

the protection of individual liberty. 1 Indiana has been no exception,

and in fact, Chief Justice Shepard has admonished Indiana practitioners

over the past few years to re-examine the Indiana Constitution.
2 Because

there has been some significant movement in this direction, Part I of

this Article explores recent developments under the Indiana Consti-

tution. Part II focuses on state and federal court cases which raise

significant federal constitutional issues implicating Indiana law and

Indiana litigants.

I. Recent Developments under the Indiana Constitution

Most of the litigation under the Indiana Constitution during the

survey period involved the rights of criminal defendants. Many courts
cited the Indiana Constitution as a supplemental ground for their

rulings, 3 but in a growing number of cases, the Indiana Constitution

was held to provide a separate and independent source of rights.

* Professor of Law, Valparaiso University School of Law. B.A., 1969, Indiana

University; M.A., 1970, Indiana University; J.D., 1973, Valparaiso University.

1. See, e.g., Daniel R. Gordon, Progressive Retreat: Falling Back from the

Federal Constitution to State Constitution, 23 Ariz. St. L.J. 801 (1991).

2. Randall T. Shepard, Indiana Law, the Supreme Court, and a New Decade,
24 Ind. L. Rev. 499, 504-07 (1991); Randall T. Shepard, Second Wind for the Indiana

Bill of Rights, 22 Ind. L. Rev. 575 (1989).

3. Waters v. State, 574 N.E.2d 911 (Ind. 1991) (the right to counsel in post-

conviction proceedings is not guaranteed by either the Indiana or the U.S. Constitutions);

Humphries v. State, 568 N.E.2d 1033 (Ind. Ct. App. 1991) (state and federal constitutions

guarantee persons who are detained for investigatory stop the right to question and

argue with the police); Gould v. State, 578 N.E.2d 382 (Ind. Ct. App. 1991) (there is

no requirement of a public trial during a hearing on a post-conviction remedy under

either the U.S. or the state constitutions); Scrougham v. State, 564 N.E.2d 542 (Ind.

Ct. App. 1991) (the double jeopardy guarantee under the Indiana Constitution is identical

to that under the U.S. Constitution); Hastings v. State, 560 N.E.2d 664 (Ind. Ct. App.

1990) (Indiana and federal law require that defendant knowingly and intelligently waive

his right not to incriminate himself).



1130 INDIANA LAW REVIEW [Vol. 25:1129

In Brady v. State,4 the Supreme Court of Indiana relied upon the
Indiana Constitution to invalidate a state statute which allowed children

to testify via videotape in a molestation case. 5 The court reasoned that

although this method did not violate the federal Constitution, Indiana's
constitutional guarantee in article I, section 136 of face-to-face con-

frontation was more specific and thus more protective than the federal
guarantee. 7 In two cases, Indiana appellate courts interpreted article I,

section 13 to guarantee the defendant a right to be present during all

proceedings. In Harrison v. State* the court held that a communication

between the judge and the jury regarding instructions that took place

without notice to the defendant violated this section and that a violation

creates a presumption of harm. 9 Similarly, in Brownlee v. State, 10 the

court held that the trial court committed reversible error by failing to

disclose to the defendant the fact that the jury requested replay of

recorded alibi testimony." Another portion of this section guarantees

that the trial take place in the county in which the offense was

committed. 12

Other cases invoked the Indiana constitutional guarantee prohibiting

excessive bail or fines 13 and the requirement that the penal code shall

be founded on "principles of reformation, and not of vindictive justice." 14

As to the former, Indiana courts have recognized that although penal

sanctions are primarily legislative considerations, a criminal defendant

4. 575 N.E.2d 981 (Ind. 1991).

5. Id. at 988.

6. Article I, § 13 provides in pertinent part: "In all criminal prosecutions, the

accused shall have the right to a public trial, by an impartial jury, in the county in

which the offense shall have been committed; to be heard by himself and counsel; to

demand the nature and cause of the accusation against him, and to have a copy

thereof . . . ."

7. Article I, § 13 provides in pertinent part: "In all criminal prosecutions, the

accused shall have the right ... to meet witnesses face to face . . . ." Cf. Hart v.

State, 578 N.E.2d 336 (Ind. 1991), which held that the right to meet witnesses face-

to-face is in the nature of a privilege which may be waived by a defendant who fails
to raise the state constitutional claim at trial. Although such failure may be overlooked

by the appellate court when the error is deemed fundamental, the court reasoned that

failure to comply with the face-to-face requirement by allowing videotaped testimony

of a child molestation victim outside of the physical presence of the defendant did not

substantially impair his opportunity for the ascertainment of truth, and thus, failure

to assert the right at trial precluded the claim of reversible error. Id. at 338.

8. 575 N.E.2d 642 (Ind. Ct. App. 1991).

9. Id. at 649.

10. 555 N.E.2d 505 (Ind. Ct. App. 1990).

11. Id. at 507.

12. See Kuchel v. State, 570 N.E.2d 910 (Ind. 1991).

13. Ind. Const, art. I, § 16.

14. Id. § 18.



1992] CONSTITUTIONAL LAW 1131

has a right to have the proportionality of his penalty reviewed under

the Indiana Constitution because it is possible that application of an

otherwise constitutional statute may be invalid as applied in a particular
instance. In Clark v. State, 15 the Supreme Court of Indiana explained

that section 16 is violated when a prison term is deemed "so severe

and so entirely out of proportion to the gravity of the offenses actually

committed as 'to shock public sentiment and violate the judgment of

a reasonable people.""6 In that case the court found that the en-

hancement of a sentence to thirty-five years under the habitual felony

offender law, which was triggered by a conviction for conduct that

the legislature classified as a misdemeanor, was entirely out of pro-

portion to the gravity of the offense. 17 Similarly, in Best v. State, xi

the court held that although the defendant, convicted of driving while

intoxicated and while his driving privileges were suspended, had a

history of prior, more serious convictions, "[g]iven the modest nature

of the present offense ... it was manifestly unreasonable to add twenty

years" — the Indiana Constitution would allow at most a ten year
enhancement. 19 Finally, in May v. State, 20 the court ruled that a judge
must evaluate the probation officer's sentencing report and not merely

adopt a suggested sentence. This is necessary to insure that no vin-

dictiveness, contrary to the constitutional guarantee prohibiting "vin-

dictive justice," has occurred in sentencing. 21

Outside the criminal law area, litigation under the Indiana Con-

stitution has been rather sparse. In several cases, the Indiana Court

of Appeals noted that parallel Indiana constitutional provisions should

be interpreted in tandem with their federal constitutional counterparts. 22

15. 561 N.E.2d 759 (Ind. 1990).

16. Id. at 765.

17. Id. at 766. The defendant was convicted of operating a motor vehicle while

intoxicated, which normally carries a one year term, and for driving with a suspended

license.

18. 566 N.E.2d 1027 (Ind. 1991).

19. Id. at 1032. Cf. Nettles v. State, 565 N.E.2d 1064 (Ind. 1991) (imposition

of two 60-year sentences to be served consecutively was proportional in light of the

mutilation murder of a five-year-old and her mother); Wolfe v. State, 562 N.E.2d 414

(Ind. 1990) (281-year sentence was not excessive under either U.S. or Indiana Consti-

tutions).

20. 578 N.E.2d 716 (Ind. Ct. App. 1991).

21. Id. at 724.

22. See, e.g., Fordyce v. State, 569 N.E.2d 357 (Ind. Ct. App. 1991) (obscenity

is no more protected speech under article I, § 9 of the Indiana Constitution than it is
under the U.S. Constitution); Vanderburgh County Bd. of Comm'rs v. Rittenhouse,
575 N.E.2d 663 (Ind. Ct. App. 1991) (article I, § 21's guarantee of a right to just
compensation triggers the same deferential approach as under the federal constitution;



1132 INDIANA LAW REVIEW [Vol. 25:1129

In a few cases, however, Indiana courts have pointed to the state

constitution as providing an independent source of rights. Thus, in

Center Township v. Coe, 2* the court invoked article I, section 4, which

provides that "no person shall be compelled to attend . . . any place
of worship . . . against his consent,"24 and section 6, which prohibits

the expenditure of state dollars "for the benefit of any religious or

theological institution," to invalidate a township trustee's practice of

providing emergency shelter for the homeless through the use of religious

missions. 25 Although suggesting that the use of shelters owned and
operated by religious institutions is not per se invalid, the court noted

that attendance at religious services was made a condition of receiving
given shelter, and thus, violated both federal and state constitutions. 26

In another case, In re Lawrance 21 the Supreme Court of Indiana

addressed whether Indiana law permits family members of an incom-
petent patient in a persistent vegetative state to authorize withdrawal

of artificial nutrition and hydration without first seeking court authority

to do so. In exploring Indiana's common law on this issue, the court
invoked article I, section 1 of the Indiana Constitution which guarantees

"inalienable rights" including "life, liberty, and the pursuit of hap-

piness." 28 Citing the 1850 constitutional debates, the court noted the

drafters' belief that liberty includes "the opportunity to manage one's
own life except in those areas yielded up to the body politic." 29 Although
this section was cited merely to buttress its interpretation of Indiana's

Health Care Consent Act to operate without court intervention when

thus, plaintiffs must rebut a presumption of constitutionality and all reasonable use of

property must be denied in order to find a taking); Metro Holding Co. v. Mitchell,

571 N.E.2d 580 (Ind. Ct. App. 1991) (neither the contract clause of the state or federal

constitution is violated by reduction, from two years to one year, of the period of

redemption after a tax sale because the period of redemption did not create a contract

between the taxpayer and the state).

23. 572 N.E.2d 1350 (Ind. Ct. App. 1991).

24. Id. at 1353.

25. Id. at 1360.

26. Id. The court observed that the trustee made no effort "to separate the
missions' sectarian purpose from the statutory benefit," and thus the article I, § 6

prohibition against payment of public funds to religious missions to be used for religious

purposes was violated. Id.

27. 579 N.E.2d 32 (Ind. 1991).

28. Id. at 36. Article I, § 1 provides in pertinent part: "That all people are

created equal; that they are endowed by their CREATOR with certain inalienable rights;
that among these are life, liberty, and the pursuit of happiness; that all power is inherent
in the People; and that all free governments are, and of right ought to be, founded

on their authority, and instituted for their peace, safety, and well-being." Ind. Const.

art. I, § 1.

29. Lawrance, 579 N.E.2d at 39.



1992] CONSTITUTIONAL LAW 1133

none of the interested parties disagree, the supreme court's invocation

and analysis of article I, section 1 suggests that this provision may be
used in the future to protect the right to die or, more broadly, a right

of privacy. 30

In at least two recent cases, the Indiana Constitution provided the

focal point in the court's analysis. In Kellogg v. City of Gary,*
1 the

Supreme Court of Indiana held that article I, section 32 creates a

guaranteed right on behalf of Indiana citizens to bear arms for their

own self-defense and for the defense of the state. 32 This finding was
critical in establishing a property and a liberty interest triggering the

Fourteenth Amendment due process protection of the federal Consti-
tution.

33 The court held that although the right to bear arms is subject

to regulation, and in fact, the Indiana Firearms Act imposes limitations

on the substantive right to carry weapons, there is nonetheless a state-

created right to carry a handgun provided the requirements of state

law are met.34 Thus, a mayor's decision to suspend all future handgun

applications deprived Indiana citizens of a "federally protected, state

created, substantive right to carry a handgun with a license." 35

In its most extensive constitutional analysis, the Supreme Court of

Indiana, in Bayh v. Sonnenburg,*6 explored the meaning of article I,

section 21, which guarantees that "[n]o person's particular services

shall be demanded, without just compensation."37 A group of former
mental patients sought compensation under this provision for work

performed while they were committed to state mental hospitals. Plain-

tiffs were required to work full-time jobs as kitchen workers, grounds
keepers, barbers, maintenance workers, secretaries, launderers, me-

chanics, hospital workers, and janitors. Although the Indiana Court

of Appeals disallowed prejudgment interest, which cut the trial court's

30. Note that the lower court judge specifically ruled that "the liberty interest

of the individual, as set forth in Article I, Sec. 1 of the Indiana Constitution, does

include the right of Sue Ann Lawrance to be free from unwanted medical treatment
and that said Article further requires the State to give effect to the decision of Sue

Ann's surrogate decisionmakers." Id. at 36.

31. 562 N.E.2d 685 (Ind. 1990).

32. Id. at 694. Article I, § 32 provides, "The people shall have a right to bear
arms, for the defense of themselves and the State." Ind. Const, art. I, § 32.

33. The court reasoned that "the framers of the Indiana Constitution gave the
citizens of this state the 'extra' liberty or property interest in bearing arms for their

own self defense and for the defense of their state which the Due Process Clause of
the Fourteenth Amendment will protect." Kellogg, 562 N.E.2d at 695.

34. Id. at 695-98.

35. Id. at 702.

36. 573 N.E.2d 398 (Ind. 1991), cert, denied, 60 U.S.L.W. 3481 (U.S. Feb. 24,

1992).

37. Ind. Const, art. I, § 21.



1134 INDIANA LAW REVIEW [Vol. 25:1129

judgment in half to about $14 million, it found that the plaintiffs were

entitled to just compensation under article I, section 21. 38 The Indiana

Supreme Court reversed this judgment, finding that: (1) the term
"particular services" could not be applied to labor performed by mental

patients because section 21 was not intended to invalidate historical

practices such as the use of patient labor without paying wages and

because patient work was "general" and not "particular" services; 39

(2) the work requirement was reasonably related to the patients' hos-
pitalization; 40 and (3) even if a taking could be found, just compensation

was received by the patients in the form of benefits, such as food,

shelter, and care, which exceeded the value of the services demanded.41

In reaching its holding, the court noted that its task in interpreting

the Indiana Constitution was to "search for the common understanding
of both those who framed it and those who ratified it." 42 The court
cited an 1871 decision of its predecessors, admonishing courts to "look

to the history of the times, and examine the state of things existing

when the constitution or any part thereof was framed and adopted."43

Applying this historical approach, the court reasoned that in choosing

the phrase "particular services" the delegates to the 1850-1851 Indiana

constitutional convention did not intend "to create new rights to com-
pensation for services provided to the State that had gone historically

uncompensated." 44 Although noting that unconstitutional acts do not

become constitutional through age or repetition, the specific history

suggesting that the framers intended to preserve the "particular serv-

ices" clause from the earlier constitution as a reaffirmation of historical

practice, disallowed payment in this context.45 The court's emphasis

on history suggests the significance of re-examining the report of the

debates and proceedings of the 1850 convention as a means of reju-

venating and providing substance to Indiana's Bill of Rights. 46

38. Sonnenberg, 573 N.E.2d at 401.

39. Id. at 412-16.

40. Id. at 416-17.

41. Id. at 418-21.

42. Id. at 412.

43. Id. (citing State v. Gibson, 36 Ind. 389, 391 (1871)).

44. Id. at 413. Compare Justice Dickson's dissenting opinion citing to an 1854
decision requiring compensation to be paid to attorneys assigned by courts to represent

poor persons as evidence that § 21 did create a right to compensation for services even

if such services had gone "historically uncompensated." Id. at 425 (Dickson, J., dis-

senting). Justice Dickson also rejects the majority's focus on extrinsic benefits received

by the patients, relying on case precedent to suggest that absent a legislative determination,

"extrinsic benefits are not a necessary constitutional component of 'just compensation."'

Id. at 426.

45. Id. at 415.

46. See Debates in Indiana Convention (1850).



1992] CONSTITUTIONAL LAW 1135

II. Recent Developments Under the Federal Constitution

A. Freedom of Expression: Nude Dancers, Attorneys, and
Government Employees

In Barnes v. Glen Theatre, Inc. ,
47 the United States Supreme Court

held that Indiana's public indecency statute48 could be constitutionally

applied to prohibit non-obscene nude dancing. 49 The Seventh Circuit,

in a seven to four en banc ruling, held that (1) non-obscene nude

dancing performed as entertainment is expression and thus entitled to

First Amendment protection50 and (2) that Indiana's public indecency
statute, which provides for a total ban on nudity in public places, is

unconstitutional as applied to prohibit such dancing. 51 Although eight

members of the Court agreed with the Seventh Circuit's first decision,

the Justices in a five to four ruling overturned the second holding.
52

As to the first ruling, eight Justices agreed that nude dancing is

entitled to First Amendment protection. Even the conservative members
of the Court conceded that nude dancing "is expressive conduct within

the outer perimeters of the First Amendment, though we view it as
only marginally so." 53 Only Justice Scalia rejected First Amendment
coverage. He found that because Indiana's public nudity statute is a
general law regulating conduct, and is not specifically directed at ex-

pression, it is not subject to First Amendment scrutiny. 54 He stated

47. Ill S. Ct. 2456 (1991).

48. Ind. Code § 35-45-4-l(a)(3) (1988) makes public indecency, including ap-
pearing nude in public, a crime. Nudity is defined in the statute as:

the showing of the human male or female genitals, pubic area, or buttocks
with less than a fully opaque covering, the showing of the female breast with

less than a fully opaque covering of any part of the nipple, or the showing

of the covered male genitals in a discernible turgid state.

Id. § 35-45-4-1 (b).

The Supreme Court of Indiana, in State v. Baysinger, 397 N.E.2d 580 (Ind. 1979),
cert, denied sub nom. Clark v. Indiana, 446 U.S. 931 (1980), interpreted the statute

to apply to nude entertainment in theaters, nightclubs, and other establishments open

to the public, although it carved out an exception for performances having an expressive

character.

49. Barnes, 111 S. Ct. at 2463.

50. Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir. 1990), rev'd on

other grounds sub nom. Barnes v. Glen Theatre, 111 S. Ct. 2456 (1991).
51. Id. at 1089.

52. Barnes v. Glen Theatre, Inc., Ill S. Ct. 2456 (1991).

53. Id. at 2460.

54. Id. at 2465 (Scalia, J., concurring). This was the position urged by Judge

Easterbrook below. Miller, 904 F.2d at 1121-22 ("a law proscribing conduct for a reason

having nothing to do with its communicative character need only meet the ordinary

minimal requirements of the equal protection clause").



1136 INDIANA LAW REVIEW [Vol. 25:1129

that the First Amendment does not protect expressive conduct, and
thus, the government need not show an important interest to preclude

such conduct. He reasoned that it is only when the government prohibits
conduct because of its communicative attributes — when the target of
the statute is to suppress the idea being communicated — that First
Amendment concerns become relevant. 55

By accepting the communicative value of nude dancing, the Court
was forced to determine whether the Indiana statute was an imper-

missible infringement of that protected activity. Here, although five

Justices sustained application of the Indiana nudity law, it took three

diverse opinions to reach a consensus. As stated earlier, Justice Scalia
withheld First Amendment protection entirely from nude dancing.56

Three other members of the Court, in an opinion authored by Chief
Justice Rehnquist, held that government interference with nude dancing

would have to meet heightened scrutiny. 57 Applying the standard set

forth in United States v. O'Brien ™ which is used to assess the gov-

ernment's power to limit expressive conduct, they concluded that the

moral disapproval of the people of Indiana was a sufficiently important

government interest to sustain the indecency ban found in Indiana

statutes since 1831.59 The plurality reasoned that this interest was

unrelated to the suppression of free expression because it barred nudity

whether or not accompanied by expressive activity. 60 When Indiana
applied its statute to nude dancing in nightclubs and theaters, it was

not proscribing nudity because of the erotic message conveyed by the

dancers, nor was it suppressing the message by requiring that dancers

wear pasties and G-strings — "it simply makes the message slightly

55. Barnes, 111 S. Ct. at 2466-67. Justice Scalia analogized to the Court's

approach with regard to the free exercise clause in which it was held that general laws

not specifically targeted at religious practices do not require heightened First Amendment
scrutiny even though such laws "diminished some people's ability to practice their

religion." Id. at 2467. Note that the same analysis was applied this term by Justice

White in Cohen v. Cowles Media Co., Ill S. Ct. 2513 (1991), which held that the
First Amendment does not prohibit a source from recovering damages under promissory
estoppel law for a publisher's breach of a promise of confidentiality given in exchange

for information. Because this was only a law of general application, it did not offend

the First Amendment nor trigger strict review simply because its enforcement against
the press had incidental effects on the ability to gather and report the news.

56. Cohen, 111 S. Ct. at 2463-71.

57. Id. at 2458-63.

58. 391 U.S. 367 (1968). See also Webb v. State, 575 N.E.2d 1066 (Ind. Ct.
App. 1991) (state prostitution law proscribing autoerotic deviate sexual conduct engaged

in for money is justified under O'Brien analysis despite regulation's incidental limitation
on the expressive part of the activity).

59. Barnes v. Glen Theatre, Inc., Ill S. Ct. at 2456 (1991).

60. Id. at 2463.



1992] CONSTITUTIONAL LAW 1137

less graphic." 61 In short, the perceived evil that Indiana sought to

address was not erotic dancing, but merely public nudity.

The most controversial aspect of the plurality's reasoning is its

conclusion that Indiana's concerns are unrelated to speech. 62 Arguably,

it is the communicative impact of nude dancing, the "anti-moral mes-

sage" being conveyed, that is the real object of the law. Justice Souter,

concurring only in the judgment, tried to avoid this problem by stating

that Indiana's primary concern was not in banning the message, but

in seeking merely to halt the secondary effects of nude dancing —
namely, increased prostitution and other criminal sexual activity. 63 Con-

ceding that such concerns were not voiced by the Indiana Legislature,

Justice Souter concluded nonetheless that such interests could be as-

sumed and are sufficient under O'Brien to justify enforcement of the

nudity law in this context. 64 Because the state interest is triggered by

the nudity and not the expressive component of the dance, Justice

Souter found that the state had met its burden of articulating an

interest unrelated to the suppression of free expression. 65 He disagreed,
however, that "preserving morality" constitutes a sufficiently important

state interest to justify the incidental effect on expression, choosing

instead to focus on the "secondary effects" concerns of the state to

meet the O'Brien test. 66

Four dissenters found the state's bar to be a content-based re-

striction on speech, triggering strict scrutiny. Distinguishing the draft

card destruction law in O'Brien, the dissent argued that the Indiana

statute was not a general prohibition; rather, the key purpose of the

proscription is "to protect viewers from what the State believes is a

harmful message" communicated by nude dancing. 67 Because the emo-

tional or erotic impact of dance is intensified by the nudity of the

performers, the state is seeking to prohibit expression, and, even as-

suming that the state's interests are important, the law is not narrowly

tailored. 68 If, as Justice Souter argued, the concern was with prostitution

or other criminal acts, it could criminalize such acts. The state could
prohibit nude dancing in barrooms pursuant to the Twenty-First Amend-
ment, and it could require that performances occur at a certain minimum
distance from spectators, that they be limited to certain hours, or that

61. Id.

62. Id. at 2452.

63. Id. at 2469 (Souter, J. , concurring).

64. Id. at 2470.

65. Id. at 2470-71.

66. Id. at 2468-69.

67. Id. at 2473 (White, J., dissenting).

68. Id. at 2474-75.



1138 INDIANA LAW REVIEW [Vol. 25:1129

they occur in certain parts of the city. It is the flat ban that triggered

the dissent's objection. 69

The Supreme Court's holding and analysis in Barnes are not sur-
prising. The four different positions adopted by the various Justices
were all discussed by members of the en banc panel of the Seventh
Circuit.

70 Although the current Court is not so bold as to deny the

communicative element in expressive conduct such as nude dancing, in

a series of cases it has employed the O'Brien analysis to sustain

government regulation of expressive conduct by finding purported sub-

stantial government interests unrelated to the suppression of ideas that

outweigh the expressive element of the activity. Without openly rele-

gating sexually explicit material to a lower standard of review, as some

Justices have suggested, 71 the Court has achieved the same result by

justifying restrictions on this speech based on a generalized concern
for public morality or "secondary effects" unsubstantiated in the rec-

ord. The key point of dissention between the majority and dissenting
Justices is on the question of the state's purpose for the regulation.

If the purpose of applying Indiana's nudity statute to the plaintiff's

expressive conduct was in reality to suppress the ideas being com-

municated, the regulation would have been subjected to strict scrutiny.

Indiana would have been required to show a compelling interest and
that the regulation was no more restrictive than necessary — a standard
which the en banc panel believed the state failed to meet. 72 By focusing

on the nudity law, rather than the expressive dancing, five Justices

overcame this hurdle.

69. Id. at 2475.

70. See Rosalie B. Levinson, Nude Dancing and Political Speech as Protected
Expression, 24 Ind. L. Rev. 697, 698-705 (1991).

71. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 258 (1990) (Scalia, J.,
dissenting) (establishments that exhibit public nudity are engaged in the business of

pandering and the Constitution should not foreclose a state or city from prohibiting

businesses that "intentionally specializ[e] in . . . live human nudity"); FCC v. Pacifica
Found., 438 U.S. 726, 743 (1978) (although FCC regulation prescribing broadcast of
"indecent" material is overbroad because provision will affect only references to sexual

activity, i.e., references that lie at the periphery of the First Amendment, the regulation

should be sustained; the overbreadth doctrine should not be used to "preserve the vigor

of patently offensive sexual and excretory speech"). Cf. id. at 761 (Powell, J., concurring)

("I do not subscribe to the theory that the Justices of this Court are free generally to

decide on the basis of its content which speech protected by the First Amendment is
most 'valuable' and hence deserving of the most protection, and which is less 'valuable'

and hence deserving of less protection."). Justice Brennan has similarly noted "the

Court's refusal to create a sliding scale of First Amendment protection calibrated to
this Court's perception of the worth of a communication's content." Id. at 763 (Brennan,

J., dissenting).

72. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1992),

rev'd on other grounds sub nom. Barnes v. Glen Theatre, 111 S. Ct. 2456 (1991).



1992] CONSTITUTIONAL LAW 1139

Perhaps the most far-reaching aspect of Barnes is Justice Rehn-

quist's holding that the state's interest in imposing its moral views on

society justified the interference with expressive conduct. Justice Scalia

points out that previous Supreme Court decisions relied on "concerns

of decency and morality" to provide a rational basis for government

regulation, but that these concerns had never been characterized as

particularly "important or substantial." 73 Similarly, Justice Souter ob-

viously felt uncomfortable resting his concurrence on the state's gen-

eralized interest in promoting morality and instead chose to rely upon
"the State's substantial interest in combating the secondary effects of

adult entertainment establishments." 74 Because the "morality" argument

was espoused by only three Justices, its precedential value remains

unclear. What is clear is that a growing body of the Court stands
ready to sustain greater governmental regulation on expressive conduct,

especially when such conduct does not implicate core political speech.
In two cases decided last term, the Supreme Court dealt with

government regulation and punishment of "pure speech." In both, the

Supreme Court sustained the government restrictions by focusing on

the special status of the speaker. In Gentile v. State Bar of Nevada,75

the Court applied the accepted principle that lawyers have less protection

than the general public or the media in commenting publicly on their
own pending cases. Whereas a contempt citation for obstructing justice
can be leveled against the press only upon a showing of a clear and
present danger that fair trial rights might be jeopardized, the Court

upheld the validity of Nevada Supreme Court Rule 177 which bars

attorneys' statements to the press that have "a substantial likelihood

of materially prejudicing an adjudicative proceeding."76 The Nevada
rule tracks ABA Model Rule of Professional Conduct 3.6 which is in
effect in thirty-one other states, including Indiana.

77 The majority found
that the lesser "substantial likelihood," rather than the more stringent
"clear and present danger of actual prejudice" standard, is appro-

priately applied to lawyers who have long been subject to regulation
as "key participants in the criminal justice system."78

73. Barnes v. Glen Theatre, Inc., Ill S.Ct. 2456, 2467 (1991) (Scalia, J., con-

curring).

74. Id. at 2468-69 (Souter, J., concurring).

75. Ill S. Ct. 2720 (1991).

76. Id. at 2723. The rule prohibits an attorney from making "an extrajudicial
statement that a reasonable person would expect to be disseminated by means of public
communication if a lawyer knows or reasonably should know that it will have a substantial
likelihood of materially prejudicing an adjudicative proceeding." Id.

77. Ind. Rules of Professional Conduct § 3.6 (1987).
78. Gentile, 111 S. Ct. at 2744.



1140 INDIANA LAW REVIEW [Vol. 25:1129

In addition to the lengthy history of control over attorneys' speech,

the Court noted the unique threat that lawyers' comments pose to the
fairness of a pending proceeding because of their special access to

information through discovery and client communications.79 Although

recognizing that the claim involved "pure speech in the political forum"
which lies at the core of First Amendment doctrine, because the speech
rights of attorneys collide with the fundamental right to a fair trial

by impartial jurors, the state struck the appropriate balance. The
majority held that the restraint on speech was narrowly tailored, being

limited to speech that is "substantially likely to have a materially

prejudicial effect, it [was] neutral as to points of views . . . and it

merely postponed the attorney's comments until after trial." 80

The holding in Gentile was not surprising, and in fact, even the
dissenters found that there was nothing per se wrong with the substantial
likelihood test because the drafters of the Model Rule apparently
thought that the test approximated the clear and present danger stan-

dard. 81 The dissent's concern, however, was that the record failed to

support the Court's finding that Gentile's speech created a substantial

likelihood of materially prejudicing the proceedings because none of

the comments included evidence which would have been inadmissible

at trial and the attorney was merely trying to counteract some of the

adverse publicity regarding his client. 82 In any event, a different majority

of five Justices concluded that the Nevada Rule, as interpreted by its

supreme court, was void for vagueness because it included a "safe

harbor" provision allowing attorneys to "state without elaboration . . .

the general nature of the . . . defense."83 The rule failed to provide

fair notice to attorneys as to what may be said at a press conference
without fear of discipline and was so imprecise that it created a real

possibility for discriminatory enforcement.84

79. Id. at 2745.

80. Id.

81. Id. at 2725.

82. Id. at 2726-31 (Kennedy, J., dissenting). At a press conference six months

before trial, the attorney charged that his client was being used as a "scapegoat" for

a theft that had most likely been committed by a police officer. He also charged that
the state witnesses were known drug dealers and convicted money launderers.

83. Id. at 2731. The rule listed a number of statements that could be made
without fear of discipline.

84. Id. at 2731-32. The rule suggested that a lawyer describing the "general

nature" of the defense without "elaboration" need not fear discipline even if he knows

or reasonably should know that his statement will have a substantial likelihood of
materially prejudicing an adjudicative proceeding. Because the terms "general" and

"elaboration" are vague, the lawyer is left with little guidance as to when his remarks

pass from the permissible to the forbidden. Id.



1992] CONSTITUTIONAL LAW 1141

Much more controversial was the Supreme Court decision limiting
the speech rights of employees in federally funded clinics. In Rust v.

Sullivan,
,

85 the Court sustained the validity of Title X regulations which
prohibit projects from engaging in counseling, referrals, and other

activities which advocate abortion as a method of family planning. 86

The regulations further require that there be strict physical and fiscal

separation between the federally funded activities of the family planning

clinics and their privately funded activities, so that in essence, abortion

cannot be spoken of in a neutral or favorable light anywhere on the

federally funded site. 87 The regulations require recipients to say, if

asked, that abortion is not an approved method of birth control. In

addressing the government "employee speech" question, the Court

reasoned that physicians and staff who are voluntarily employed by a
Title X project can be required to perform their duties in accordance
with the regulations' restrictions on abortion counseling and referral

because Congress is merely refusing to fund such activities out of the

public fisc. 88

The notion that government should have broad discretion in al-

locating funds, even if such discretionary allocation has an effect on

the marketplace of ideas, clashes head-on with the competing consti-

tutional theory that government cannot condition its largesse on re-

linquishing constitutional rights. 89 While recognizing the line of Supreme

Court decisions which hold that the existence of a government "sub-

sidy" does not justify all restrictions on speech, the Court nevertheless

reasoned that in this context, the employees' freedom of expression

was limited only during the time that the employees actually worked

for the project and that this limitation was merely "a consequence of

their decision to accept employment in a project, the scope of which

is permissibly restricted by the funding authority."90 This conclusion

conflicts with earlier Supreme Court decisions protecting the speech of
government employees regardless of whether such speech occurs on the

85. Ill S. Ct. 1759 (1991).

86. Id. at 1776.

87. Id. at 1765-66. The regulation required recipients to say, if asked, that
abortion is not an approved method of birth control.

88. Id. at 1775.

89. Compare Regan v. Taxation with Representation of Wash., 461 U.S. 540
(1983) (while there is a right to lobby, there is no right to a government subsidy for

lobbying activities and thus government may, subject to only minimal rationality review,

deny a subsidy to lobbying groups) with FCC v. League of Women Voters of Cal.,
468 U.S. 364 (1984) (government cannot condition federal funds to public television

stations on their relinquishing the right to editorialize).

90. Rust v. Sullivan, 111 S. Ct. 1759, 1775 (1991).



1142 INDIANA LAW REVIEW [Vol. 25:1129

premises. For example, in Rankin v. McPherson, 9] the Supreme Court

held that the employee's communication, which her employer sought

to punish, was entitled to protection even though it occurred during

business hours.92 Although recognizing that government employee speech

which creates material disruption in the workplace is unprotected, the

Court subjected the government action to heightened scrutiny, rather

than the rationality standard which the majority imposed in Rust. 93

The use of a rationality standard in sustaining this restriction on
speech is especially problematic because the restriction was both view-

point discriminatory, and it involved speech regarding a fundamental

right. The fact that the regulation allowed speech recommending child-

birth while prohibiting the mention of abortion can hardly be char-

acterized as a viewpoint neutral determination. Yet, the majority found

that the regulations did not amount to viewpoint discrimination, but
merely reflected the government's decision to selectively subsidize one

activity, i.e., the activity of family planning and counseling, while

refusing to subsidize other activities. 94 This characterization appears

disingenuous at best. Moreover, the fact that the prohibition prevents

physicians from giving patients information regarding their fundamental

right to terminate a pregnancy is especially troublesome. Because the

federal government in essence has a monopoly over the provision of
medical services to the poor, the Court's ruling creates a "two-tier

system of constitutional rights, one for the rich and one for the poor." 95

91. 483 U.S. 378 (1987).

92. Id. at 391.

93. See id. at 384. Although the "speech" was a rather inflammatory statement

by a deputy constable following the attempted assassination of President Reagan, ("If

they go for him again, I hope they get him"), the Court held that the remark "plainly

dealt with a matter of public concern," and thus was protected absent evidence that

it interfered "with the efficient functioning of the office." But cf. Campbell v. Porter

County Bd. of Comm'rs, 565 N.E.2d 1164 (Ind. Ct. App. 1991) (because shift captains'

grievance addressed internal administrative matters and not matters of public concern,

their speech was not entitled to First Amendment protection); Phegley v. Indiana Dep't
of Highways, 564 N.E.2d 291 (Ind. Ct. App. 1990) (where the record failed to disclose

that plaintiff's conversation with party chairmen was "a matter of legitimate public

concern about which free and open debate would be vital to informed decision-making

by the electorate," the speech was entitled to little if any protection, and it did not

gain protected status simply because the subject matter might be of general interest to

the public). These cases follow the Supreme Court decision in Connick v. Myers, 461

U.S. 138 (1983), that only speech which is a matter of public concern triggers First

Amendment protection.
94. Rust, 111 S. Ct. at 1772.

95. See 60 U.S.L.W. 2253 (Oct. 22, 1991) (Kathleen M. Sullivan, Comments at
the Symposium of the U.S.L.W. Constitutional Law Conference). "Both the purpose
and result of the challenged Regulations is to deny women the ability voluntarily to



1992] CONSTITUTIONAL LAW 1143

Although on one level the decision may simply reflect the Supreme
Court's growing hostility to the Roe decision, its fatuous discussion
of viewpoint neutrality and its broad conferral of authority on gov-

ernment to regulate speech through the power of the purse strings

portend potentially dire consequences for First Amendment jurispru-
dence.

In sharp contrast to the Court's failure to protect the free speech

rights of those on the public payroll, the Supreme Court has been

exceedingly protective of the free association rights of government

employees. Last term in Rutan v. Republican Party of Illinois™ the

Supreme Court held that the First Amendment protects not only em-
ployees who are dismissed based on political affiliation, but also those
who are not hired or who lose a promotion, transfer, or other op-
portunity because of political affiliation. 97 Imposing a strict scrutiny

standard, the Supreme Court held that there is no compelling govern-

ment interest justifying any form of political patronage decisionmaking.

The Supreme Court has clarified that the only exception to the patronage
prohibition is when the employer is able to demonstrate that party
affiliation is an appropriate requirement for the performance of the

specific job in question.98 In Matlock v. Barnes," the Seventh Circuit

held that the city of Gary failed to show how an investigator in the
law department could constitutionally be terminated from his position

due to his political affiliation. 100 The court reasoned that the investigator
was not a policymaking or confidential employee because he had little

authority, he did not supervise anyone, and he was supervised by other

attorneys. 101 There was no area regarding his duties where political

affiliation would affect job performance. 102

Despite Rutan, the Seventh Circuit has refused to afford First

Amendment protection to independent contractors who lose their gov-

decide their procreative destiny. For these women, the Government will have obliterated
the freedom to choose as surely as if it had banned abortions outright." Rust v. Sullivan,

HIS. Ct. 1759, 1785 (1991) (Blackmun, J., dissenting).
96. 110 S. Ct. 2729 (1990).

97. Id. at 2730.

98. Branti v. Finkel, 445 U.S. 507 (1980).

99. 932 F.2d 658 (7th Cir.), cert, denied, 112 S. Ct. 304 (1991).

100. Id. at 665.

101. Id.

102. Id. at 662-65. See also Upton v. Thompson, 930 F.2d 1209, 1217 (7th Cir.
1991), cert, denied, 112 S. Ct. 1262 (1992) (noting that the Seventh Circuit has examined

factors such as '"the specific position of power involved' the 'customary intimacy of

association with the office' and the 'need for mutual trust and confidence'" in determining
whether political affinity is an appropriate job requirement).



1144 INDIANA LAW REVIEW [Vol. 25:1129

ernment contracts because of political affiliation. Prior to Rutan, the

Seventh Circuit, as well as other appellate courts, ruled that the First

Amendment does not protect independent contractors from adverse
decisions based on partisan political reasons because the coerciveness

associated with public employees carries diminished weight when an
independent contractor simply loses one "customer" due to the pa-

tronage practice. 103 The argument is that an independent contractor
normally would feel a lesser sense of dependency, and thus First
Amendment rights are more attenuated and insufficient to justify tam-
pering with political institutions. 104 To the extent that the Seventh
Circuit's position on independent contractors relies on the argument

that loss of one contract is not so significantly penalizing as to trigger

constitutional protection, the Supreme Court's holding in Rutan would
appear to require a critical re-evaluation. If loss of a transfer or

promotion is considered a significant penalty triggering strict scrutiny,

loss of a lucrative government contract should evoke the same analysis.

This conclusion is buttressed by the earlier Supreme Court holding in

Lefkowitz v. Turley, los invalidating a state statute which required public

contractors to waive their Fifth Amendment immunity from self-in-
crimination in any proceeding relating to their government contract or

face a five year ban on doing further business with the government. 106

The Court rejected the argument that there was "a difference of
constitutional magnitude between the threat of job loss to an employee

of the State, and a threat of loss of contracts to a contractor." 107

Unpersuaded by this case precedent, the Seventh Circuit in a recent

decision reaffirmed its position that independent contractors are not

shielded from patronage practices. In Downtown AutoParks, Inc. v.
City of Milwaukee, 108 the court conceded that "the scope of Rutan,

and rationale behind it, seem to be at odds with the [earlier] hold-

103. Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583 (7th Cir. 1989),

cert, denied, 111 S. Ct. 129 (1990). See also Horn v. Kean, 796 F.2d 668, 673-75 (3d

Cir. 1986) (permitting those who hold public office to employ independent contractors
based on political party affiliation provides an effective method to implement the

administration's program that outweighs the lesser burden imposed when it is a contractor

rather than a state employee whose rights are at stake); Sweeney v. Bond, 669 F.2d

542, 545 (8th Cir.), cert, denied, 459 U.S. 878 (1982) (politically motivated dismissal

of Missouri Department of Revenue fee agents, classified as independent contractors,

does not violate the First Amendment).

104. Horn, 796 F.2d at 674-75.

105. 414 U.S. 70 (1973).

106. Id. at 83.

107. Id.

108. 938 F.2d 705 (7th Cir.), cert, denied, 112 S. Ct. 640 (1991).



1992] CONSTITUTIONAL LAW 1145

ing[s]." 109 Rutan rejected the Seventh Circuit's concern that extending

First Amendment protection beyond termination decisions would un-
necessarily flood the federal courts with new patronage claims. Nev-
ertheless, the appellate court decided to limit the Supreme Court case

to its own facts, and therefore, it refused to extend First Amendment
protection beyond the context of government employment. 110 Because

Rutan was a five-four decision, authored by Justice Brennan, his absence

from the Court, coupled with that of Justice Marshall, arguably signals

the end of the expansionist approach to providing First Amendment
protection from political patronage practices, and thus, the Seventh

Circuit's position on independent contractors is likely to remain the

law. 111

B. Freedom of Religion

Proceeding on the premise that the proper position of government

is to maintain a position of neutrality vis-a-vis religion, the Supreme
Court has interpreted the Establishment Clause of the First Amendment
to require that all government programs share three characteristics: (1)
the program must have a secular purpose; (2) the primary effect must

neither advance nor inhibit religion; and (3) the program cannot create

excessive entanglement between church and state." 2 This three-pronged

analysis has been referred to as the Lemon test. Most of the cases
alleging an Establishment Clause violation involve either the grant of

public aid to religious institutions or the injection of religion into the

public sector through prayer or the display of religious symbols by the

government. Both types of cases were brought by Indiana litigants this

past term.

In Center Township v. Coe,m the Indiana Court of Appeals held
that the township trustee could not utilize private religious mission

shelters to provide emergency housing to the homeless because the

religious entities required attendance at religious services as a condition

of being given shelter. 114 As noted earlier, the Indiana Court of Appeals
relied primarily on two sections of Indiana's Bill of Rights—article I,

109. Id. at 709.

110. Id. at 710. The Seventh Circuit noted that the Sixth Circuit in a post-Rutan
case similarly refused to prohibit the government from considering political criteria in
awarding public contracts. Id. at 709 (citing to Lundblad v. Celeste, 874 F.2d 1097,
1102 (6th Cir. 1989), cert, denied, 111 S. Ct. 2889 (1991)).

111. Justice Scalia, dissenting in Rutan, indeed predicted that the unmanageable

flood of litigation that inevitably would be triggered by the new decision would lead
the Court "to reconsider [its] intrusion into this entire field." Rutan v. Republican

Party of 111., 110 S. Ct. 2729, 2758-59 (Scalia, J., dissenting).

112. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
113. 572 N.E.2d 1350 (Ind. Ct. App. 1991).
114. Id. at 1360.



1146 INDIANA LAW REVIEW [Vol. 25:1129

section 6, which prohibits the flow of tax dollars to religious institutions,

and article I, section 4, which provides that no person shall be compelled

to attend any place of worship against his consent. 115 The court thereby
avoided discussion of the federal Establishment Clause. In reaching its

conclusion, however, the court also relied upon the federal free exercise
law which dictates that government cannot condition receipt of a

statutory benefit on mandatory attendance at religious services. 116

As to cases involving the infiltration of religion into the public
sector, the Supreme Court has been especially wary of allowing religious
activity to take place in the public school setting because of the Court's

concern that public school officials not give the impression of endorsing

religion. Nonetheless, in Berger v. Rensselaer Central School Corp., 111

the District Court for the Northern District of Indiana ruled that the

school corporation's policy of allowing the distribution of Gideon Bibles

and other religious literature in classrooms does not violate the First

Amendment. 118 The facts indicated that the Gideons visited the school
corporation annually and distributed Gideon Bibles to fifth graders

during regular school hours after explaining who they were, what their
organization stood for, and that the Bibles would be distributed free

of charge. Although a teacher was present in the classroom, at no

time did the teacher say anything or participate in handing out the

Bibles. The practice dated back at least thirty-five years, and the Bibles
were to be distributed only to fifth graders whose parents consented,

although in recent years permission slips had not been used.

The court applied a modified Lemon test in reaching its decision
that although difficult questions of constitutional law were raised by

the school's practice, the regime under which the materials were made
available to students did not violate the Establishment Clause. 119 The

modification stems from the Supreme Court's assertion in several recent

cases that the most critical question in assessing claims brought under

the Establishment Clause is whether the actual purpose of the gov-

ernment practice is to endorse religion and whether the government

action is likely to be perceived as state endorsement of religion. 120 The

district court reasoned that the purpose for allowing Bible distribution

was not to endorse religion and that because of the large number of

distributions made to students by various groups, it was unlikely that

115. See supra notes 23-26 and accompanying text.

116. Cole, 572 N.E.2d at 1360.

117. 766 F. Supp. 696 (N.D. Ind. 1991).

118. Id. at 707.

119. Id. at 704.

120. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O'Connor, J., con-

curring).



1992] CONSTITUTIONAL LAW 1147

it would be perceived by an objective viewer as an endorsement of

religion. 121 In fact, the court reasoned that disallowing this practice

would send a message of religious hostility to the students. 122 Finally,

the court found that neither the annual nature of the event, the fact

that the principal was the special guest at a Gideon banquet for

cooperating with its representative, nor the fact that the Bibles of

objecting parents were to be returned to the children's teacher, created

"excessive entanglement." 123 The court emphasized the teacher's non-

involvement, the absence of any public funding, and the fact that this

occurred only one time during each school year to support its conclusion

that the involvement with religion was "merely incidental." 124

Although the Supreme Court in recent years has taken a much
more accommodationist approach to Establishment Clause questions,

it is difficult to reconcile the district court's conclusion with Supreme

Court decisions involving religious activity in public schools. In Board

of Education of Westside Community Schools v. Mergens, x2i the Court
upheld the validity of the Equal Access Act which prohibits federally

assisted, public secondary schools from discriminating against any group

on the basis of religion when the school otherwise permits extracurricular
student groups to meet on school premises. 126 Mergens sustained the

right of student religious groups to utilize school facilities for the

purpose of conducting prayer sessions, but the Court emphasized the

fact that the religious speech was entirely student-initiated. 127 In sharp

contrast, in McCollum v. Board of Education, 128 the Court held that
permitting representatives to conduct religious school classes on school

premises had the impermissible effect of advancing religion. 129 The
Court stated, "This is beyond all question a utilization of the tax-

established and tax-supported public school system to aid religious

groups to spread their faith. And it falls squarely under the ban of
the First Amendment . . . ." 13° Other Supreme Court decisions have

121. Berger, 766 F. Supp. at 705-06 ("The defendant's policy offering school

students exposure to the many facets of their local community (including the religious)
does not constitute the school's imprimatur as to each such facet.").

122. Id. at 706.

123. Id.

124. Id. at 706-07.

125. 110 S. Ct. 2356 (1990).

126. Id. at 2373.

127. Id. ("a school that permits a student-initiated and student-led religious club

to meet after school, just as it permits any other student group to do, does not convey

a message of state approval or endorsement of the particular religion").

128. 333 U.S. 203 (1948) (per curiam).

129. Id. at 231.

130. Id. at 210.



1148 INDIANA LAW REVIEW [Vol. 25:1129

similarly stressed that young students are impressionable and particularly

susceptible to indoctrination by adults, that schools are tax-supported

institutions, and that children find themselves captive audiences in these

public institutions because of mandatory attendance laws. 131

The district court's decision in Berger is currently on appeal to
the Seventh Circuit. In determining how much interaction between
church and state is permitted in the school context, the Seventh Circuit

will perhaps be provided with some guidance by the Supreme Court,
which has recently heard argument in the case of Weisman v. Lee. ul

In Weisman, the Court has been asked to decide whether a benediction

delivered by clergy at a public school ceremony has the impermissible

effect of advancing religion. Both lower courts held that the practice

violated all three prongs of the Lemon analysis, but amicus briefs filed
by the Bush administration and others have urged the Court to abandon

Lemon for a more accommodationist approach to the religion clause
which would allow government interaction between church and state

in the absence of government coercion regarding religious liberty. 133

Although the questions of school prayer and Bible distribution are not

identical, in both cases third parties, whose sole function is religious,

are being given the opportunity to deliver their sectarian message to

public school students. On the other hand, in both cases the event
occurs but once a school year and it involves no expenditure of public

dollars, with only nominal participation by school officials. Thus, the

analysis the Court adopts in Lee should prove to be instructive.

C. Procedural and Substantive Due Process Claims

The due process guarantee continues to be one of the most litigated
constitutional provisions, as demonstrated by the large number of state

131. See School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 383 (1985) (in-

validating two programs in which public school employees taught secular subjects to

non-public school students based on the school's concern for the "sensitive relationship

between government and religion in the education of our children"); McCollum, 333

U.S. at 227 (Frankfurter, J., concurring) ("[t]hat a child is offered an alternative may
reduce the constraint; it does not eliminate the operation of influence by the school

. . . [t]he law of imitation operates, and non-conformity is not an outstanding char-

acteristic of children").

132. 908 F.2d 1090 (1st Cir. 1990), cert, granted, 111 S. Ct. 1305 (1991).

133. The coercion test was first formulated by Justice Kennedy in County of

Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989), a case involving
public display of religious symbols. Justice Kennedy stated that the government must

directly compel someone to participate in a religious program, to make significant
government expenditures, or to engage in "an exhortation to religiosity that amounts

to proselytizing" of particular religious beliefs in order to find a violation of the

establishment clause." Id. at 660. See also 60 U.S.L.W. 3351 (U.S. Nov. 12, 1991)

(discussion of oral argument in the Lee case).



1992] CONSTITUTIONAL LAW 1149

and lower federal court decisions that address both procedural and

substantive due process issues. 134 Because the Due Process Clause pro-
tects only against deprivations of life, liberty, or property, analysis

often begins by identifying a liberty or property interest. Federal, state,

or local law, including contract or custom, dictates whether government

has created a liberty or property interest. 135 This aspect of due process

analysis triggered an extensive discussion in the case of Kellogg v. City

of Gary. 136 In an effort to curb crime and violence on the streets, an

agreement was reached between the mayor and the acting chief of
police to no longer make applications for handguns available to the
citizens of Gary. A group of city residents contended that this action
deprived them of a liberty or property interest without due process.

Although rejecting a Second Amendment claim because this guarantee
has never been incorporated into the Fourteenth Amendment and made
applicable to the states, 137 the court found that article I, section 32 of

the Indiana Constitution, entitled "Bearing Arms," created a right to
bear arms on behalf of Indiana citizens. 138 The court described the
interest as one of liberty "to the extent that it enables law-abiding

citizens to be free from the threat and danger of violent crime," as
well as a property interest "at stake ... in protecting one's valuables

when transporting them." 139 Although recognizing that litigants cannot
claim a liberty or property interest in the state's licensing procedure

with regard to handguns, in this case Gary citizens were absolutely
denied a handgun license application form, and thus a substantive right
rooted in the state constitution was adversely affected. 140 The court
concluded that "the framers of the Indiana Constitution gave the

citizens of this state the 'extra' liberty or property interest in bearing

arms for their own self defense and for the defense of their state which

134. Procedural due process dictates the manner in which the government may
proceed when affecting an individual's legal interest or status, while substantive due
process serves as a more general bar against arbitrary government action. Daniels v.

Williams, 474 U.S. 327, 337 (1986).

135. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (a legitimate claim

of entitlement is created and its dimensions defined "by existing rules or understandings
that stem from an independent source such as state law"). See also Woods v. City of
Mich. City, 940 F.2d 275, 281 (7th Cir. 1991) (a state creates a liberty interest by

mandating the outcome to be reached upon a finding that relevant criteria have been
met; thus, the court assumes without deciding that Ind. Code § 9-4-l-131(a) (1988)
creates a liberty interest on behalf of an arrestee charged with a misdemeanor traffic

offense to be released if not taken immediately before a judge).

136. 562 N.E.2d 685 (Ind. 1990).

137. Id. at 692.

138. Id. at 694.

139. Id.

140. Id. at 696-97.



1150 INDIANA LAW REVIEW [Vol. 25:1129

the Due Process Clause of the Fourteenth Amendment will protect." 141

Less successful have been procedural due process claims involving

loss of employment. Most Indiana employees continue to be viewed
as "at-will" workers whose jobs may be terminated without any pro-
cedural protection. Thus, in Phegley v. Indiana Department of High-

ways™2 the Indiana Court of Appeals held that professional engineers
employed by the Department are "demotable for any reason or no
reason whatsoever" because they have no property interest in further
employment. 143 Similarly, in Reed v. Shepard, 144 the Seventh Circuit
held that Reed was a civilian jailer whose employment was "at will"

despite evidence that she was issued and wore a uniform of a sheriff's

deputy and was given a copy of a rules and regulations manual that
governed deputies, whose jobs were protected. 145 The court concluded
that Reed's position as jailer was not intended to be equivalent to that

of a deputy, and thus, she was not entitled to notice and a hearing

prior to her termination.
146

The only federal constitutional recourse for at-will employees seek-
ing procedural protection is through invocation of a "liberty" interest.

The Supreme Court has held that if the government defames an in-
dividual in connection with a termination even from an at-will job,

deprivation of a federally protected liberty interest in pursuing one's

career may be implicated. 147 The Court in Siegert v. Gilley, 14* recently
clarified that in order to avail oneself of this federal guarantee, a

plaintiff must prove contemporaneous loss of current employment and

damage to reputation by the government employer. 149 In Siegert, a

federal employee voluntarily left his job, but was subsequently defamed

in a "recommendation" letter that he requested from his former em-

ployer in order to secure a new position with the federal government.
It was conceded that the letter led to his failure to be "credentialed"

as a qualified psychologist and thus, seriously impaired his future

141. Id. at 695.

142. 564 N.E.2d 291 (Ind. Ct. App. 1990).

143. Id. at 295.

144. 939 F.2d 484 (7th Cir. 1991).

145. Id. at 488.

146. Id. at 489.

147. Board of Regents v. Roth, 408 U.S. 564, 573 (1972). See also Speckman v.

City of Indpls., 540 N.E.2d 1189, 1193-94 (Ind. 1989) (because at the time of Speckman's

discharge, statements made to the press and others indicated that he had been dishonest

or even criminal in handling city funds, the trial court erred in dismissing the claims

without determining whether the alleged defamation was so slanderous as to prevent

Speckman from continuing in the same occupation).

148. HIS. Ct. 1789 (1991).
149. Id. at 1794.



1992] CONSTITUTIONAL LAW 1151

employment prospects. Nonetheless, because "the alleged defamation

was not uttered incident to the termination," the plaintiff failed to

state an actionable "liberty" violation. 150

Once a protected liberty or property interest is identified, consti-

tutionally required procedural safeguards are determined by balancing

the following factors: (1) the private interest affected by the official

action; (2) the risk of an erroneous deprivation through the procedures

used and the probable value of additional procedural safeguards; and

(3) the government's interest.
151 Applying this standard in Kellogg v.

City of Gary, lS2 the Indiana Supreme Court found that the private

interests of Gary residents to be able to apply for and receive a handgun

license in order to protect themselves were important enough to require

additional safeguards. 153 Because termination of the application process

was effectuated by executive decree without any hearing before the city

council, which alone possessed legislative authority to pass ordinances

for the benefit of the city, plaintiffs were deprived of their liberty and

property without due process of law. 154

150. Id.

151. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). The Supreme Court's
most recent application of Mathews is found in Connecticut v. Doehr, 111 S. Ct. 2105

(1991), which invalidated a state statute which authorized prejudgment attachment of

real property upon plaintiff's ex parte assertion of probable cause, without a further

showing of extraordinary circumstances. The Court reasoned that the interests affected

were significant because attachment clouds title, impairs the ability to sell or otherwise

alienate property, taints credit ratings, and may place an existing mortgage in technical
default when there is an insecurity clause. Even though the property owner would not
be deprived of complete physical or permanent use, the encumbrance was deemed

sufficient to merit due process protection. Further, the Court reasoned that the risk of

erroneous deprivation is great when a reviewing judge receives only a one-sided, self-
serving, and conclusory affidavit, and the safeguards provided by the state, namely an

expeditious post-attachment adversary hearing and double damages if the original suit

was commenced without probable cause, did not adequately reduce the risk. Finally,
the state interest was minimal because no allegations were made that the defendant was
about to transfer or encumber the real estate. Note that Indiana's pre-judgment at-

tachment statute is unaffected by Doehr because it permits attachment only in exigent
circumstances. Ind. Code § 34-1-11-4.1 (1988). Cf. Avco Fin. Servs. v. Metro Holding
Co., 563 N.E.2d 1323 (Ind. Ct. App. 1990) (sustaining provisions of Indiana's tax sale

statute which requires notice be given only to holders of a property interest recorded

more than 60 days from the date of sale).

152. 562 N.E.2d 685 (Ind. 1990).

153. Id. at 702.

154. Id. Cf. Smith v. Town of Eaton, 910 F.2d 1469 (7th Cir. 1990), cert, denied,
111 S. Ct. 1587 (1991) (although an employee possessing a property interest in his job

must be given notice and an opportunity to be heard prior to being subjected to final

disciplinary action, the procedure need not be elaborate and can be satisfied with less

than a full evidentiary hearing).



1152 INDIANA LAW REVIEW [Vol. 25:1129

In addition to procedural due process, the Supreme Court continues

to recognize that the Due Process Clause also contains a substantive
component that bars certain arbitrary, wrongful government action
regardless of the fairness of the procedures invoked. 155 However, when
the government action does not affect so-called fundamental rights, 156

the Supreme Court has held that due process is not violated unless

the government's action is totally arbitrary and capricious. 157 The def-
erential approach dictated by this standard is reflected in Stewart v.

Fort Wayne Community Schools, 1 ™ in which the Indiana Supreme Court
held that although a school psychometrist had a property interest in

her status as a tenured teacher, substantive due process was not violated

when she was terminated while nontenured teachers were retained. 159

The court reasoned that the school board had a legitimate justification

because the nontenured teachers who were retained had classroom
teaching certificates and thus could perform dual roles for the school. 160

Although the 1983 employment policy rescinded the dual certification

requirement explicit in the 1981 policy statement, the board's interest

in retaining personnel with dual certification was not irrational. 161

Despite this deferential approach to substantive due process, the

Indiana Supreme Court in Kellogg v. City of Gary found that however

noble the mayor's purpose in suspending the handgun license application
process, his conduct arbitrarily deprived Gary residents of a right

guaranteed them under the Indiana Constitution. 162 The court empha-

sized that the mayor clearly exceeded his authority by suspending the
application process through executive decree, bypassing the city council

which was vested with legislative authority. The conduct "lacked a
reasonable basis," and thus, plaintiffs proved a substantive due process

violation. 163

155. Zinermon v. Burch, 110 S. Ct. 975, 983 (1990).

156. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing a fun-

damental right to marital privacy, which triggered the beginning of modern substantive

due process analysis). This right to privacy has been extended to include the controversial

right to terminate a pregnancy, Roe v. Wade, 410 U.S. 113 (1973), as well as the right

to make basic familial decisions, Moore v. City of East Cleveland, 431 U.S. 494 (1977).
157. Zinermon, 110 S. Ct. at 983. See also Collins v. City of Harbor Heights,

112 S. Ct. 1061, 1070 (1982) (city's alleged failure to train its employees or to warn

them about known risks of harm was not "an omission that can properly be characterized

as arbitrary, or conscience-shocking, in a constitutional sense").

158. 564 N.E.2d 274 (Ind. 1990), cert, denied, 112 S. Ct. 169 (1991).

159. Id. at 279.

160. Id.

161. Id. at 280.

162. Kellogg v. City of Gary, 562 N.E.2d 685, 699 (1990).

163. Id. at 700.



1992] CONSTITUTIONAL LAW 1153

The question of when, if ever, government abuse of power is

sufficiently egregious to support a substantive due process claim has

generated significant discussion and confusion in the lower courts.

Some appellate courts have limited protection to individuals claiming
violation of a federally protected liberty interest or to situations in

which the state fails to provide a remedy for a state-created interest. 164

The Supreme Court last winter agreed to decide whether the arbitrary,

capricious denial of a construction permit to a developer constitutes

a substantive due process claim. In PFZ Properties, Inc. v. Rodriguez,* 65

the First Circuit found that even if government officials engaged in

delaying tactics and refused to issue a permit based on considerations

outside the scope of their jurisdiction under state law, such conduct,

without more, does not rise to the level of a violation of federal law. 166

The Supreme Court's determination of this issue would have been
critical not only to land developers, but also to government employees

and licensees whose jobs or licenses are terminated for arbitrary reasons,
school children who are victims of unduly harsh, arbitrary corporal
punishment, and pretrial detainees who have been subjected to arbitrary,
capricious mistreatment or malicious prosecution.' 67 The Supreme Court,
however, recently dismissed the cert petition as having been improvi-

dently granted. 168

164. Rosalie Levinson, Protection Against Government Abuse of Power: Has the
Court Taken the Substance Out of Substantive Due Process, 16 U. Dayton L. Rev.
313, 345-48 (1991). For recent cases debating the meaning of substantive due process,

see Santiago de Castro v. Morales Medina, 943 F.2d 129, 130-31 (1st Cir. 1991)

(substantive due process violation occurs only when the claim involves a specific property
or liberty interest deeply rooted in fundamental principles or when conduct of government
officials shocks the conscience; federal court should not become embroiled in workplace
disputes when only state-created property interests are implicated); Midnight Sessions,
Ltd. v. City of Philadelphia, 945 F.2d 667, 683-85 (3rd Cir. 1991) (in challenging denial

of a license as contrary to substantive due process guarantee, plaintiff must prove either

that the city's licensing scheme was not rationally related to a legitimate government

interest or that the city's action in denying the application based on community objection
was improperly motivated; city's consideration of public sentiment that reflects legitimate

concerns and has an adequate factual basis cannot be deemed per se arbitrary and
irrational); Temkin v. Frederick County Comm'rs, 945 F.2d 716, 719-723 (4th Cir. 1991)
(although circuits have adopted standards of care ranging from "gross negligence" to
"deliberate indifference" to "recklessness" for substantive due process claims, in a case

involving injury caused by policeman's operation of a vehicle while acting in the line

of duty, the more stringent "shocks the conscience" standard should be utilized).
165. PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28 (1st Cir.), cert, dismissed,

112 S. Ct. 1151 (1992).

166. Id. at 31-32.

167. Levinson, supra note 164 at 353-59.

168. PFZ Properties, 112 S. Ct. 1151 (1992).



1154 INDIANA LAW REVIEW [Vol. 25:1129

The Supreme Court in recent years has imposed significant limi-
tations on the reach of substantive due process by holding that claims
of merely negligent deprivation of liberty or property are no longer

actionable under the Due Process Clause169 and by providing that in
the absence of a "special custodial relationship," the Due Process
Clause imposes no affirmative duty on the part of government to
provide protective services. 170 In Tittle v. Mahan, 111 the estate of a
pretrial detainee who committed suicide in the county jail sued local
officials, alleging violation of the deceased's constitutional rights. Al-

though, in this context, the requisite custodial relationship existed so

as to trigger due process rights, 172 the court held that the plaintiffs

failed to show how the government entity or its officials acted with
"reckless disregard" or "reckless indifference" toward the detainee. 173

It reasoned that prison custodians cannot be guarantors of a prisoner's

safety and that liability should not be imposed for a prison suicide

unless the officers themselves take affirmative action directly leading

to the suicide or prison officials actually knew or should have known
of the suicidal tendencies of the prisoner and failed to take reasonable

precautions to prevent the suicide. 174 Although the deceased had made
a prior suicide attempt, the evidence was undisputed that jail officials

were unaware of this information, and their failure to follow up on

the deceased's psychological history was, at most, negligent. 175 Even if

the jailers failed to monitor the deceased as often as required by their

169. Daniels v. Williams, 474 U.S. 327, 328 (1986) ("[w]e conclude that the Due

Process Clause is simply not implicated by a negligent act of an official causing unintended

loss of or injury to life, liberty, or property").

170. DeShaney v. Winnebago County Dep't of Social Servs., 109 S. Ct. 998 (1989).

The Court rejected a due process claim brought against a county welfare department

for failing to intervene to protect a child against the arguably known risk of violence

at his father's hands, reasoning that the "State's failure to protect . . . against private

violence simply does not constitute a violation of the Due Process Clause." Id. at 1004.
171. 566 N.E.2d 1064 (Ind. Ct. App.), aff'd in part, 582 N.E.2d 796 (Ind. 1991).

172. Id. at 1069.

173. Id. at 1071-72.

174. Id. at 1069-70. See also McGill v. Duckworth, 944 F.2d 344, 349-50 (7th

Cir. 1991) (inmate's claim against Indiana prison officials and prison guards that he

was raped by a fellow inmate fails to state an Eighth Amendment claim absent evidence
that jail officials had actual knowledge of impending harm easily preventable so that

conscious, culpable refusal to prevent the harm could be inferred; ordinary negligence

and even "gross negligence" is insufficient absent evidence that officials put inmate in

segregation unit "because of, rather than in spite of, the risk to him"); Salazar v. City

of Chicago, 940 F.2d 233, 241-42 (7th Cir. 1991) (neither police officers nor paramedics

could be held liable for death of pretrial detainee who died after his arrest for D.W.I,
following a traffic accident where there was no evidence that they exhibited deliberate

indifference to the deceased's serious medical needs).

175. Tittle, 566 N.E.2d at 1071.



1992] CONSTITUTIONAL LAW 1155

own guidelines, this failure also could not be characterized "as anything
more than negligent." 176 To the contrary, the jail officials' concern
about the detainee and his alcohol and drug problems led them "to

place him in isolation, give him medication, and place him under
periodic observation" — all of which negated a finding of deliberate
indifference which is required to impose liability. 177

III. Conclusion

This past year, Indiana litigants presented state and federal courts

with a host of novel federal and state constitutional claims. Several

Indiana litigants, heeding the advice of Chief Justice Shepard, looked

to the Indiana Constitution as a source for such significant civil liberties

as the right to die, the right to religious liberty, the right to bear arms,

the right to just compensation for services performed for the state,

and as a source for several criminal procedural safeguards. In the

federal realm, Indiana's nudity law became the focus of national at-
tention as the United States Supreme Court assessed the expressive
value of nude dancing, as well as the state's right to control this

expressive conduct. Religious activities in public schools, patronage

practices, and speech rights of government employees posed extremely

difficult, controversial questions. Finally, while many due process claims
were resolved under well-established legal doctrine, other cases chal-

lenged traditional doctrine and raised difficult questions regarding the

176. Id.

177. Id. at 1071-72. See also Colburn v. Upper Darby Township, 946 F.2d 1017

(3d Cir. 1991) (in order to impose liability on prison officials, likelihood that pretrial

detainee will commit suicide must be so obvious that a layperson would easily recognize

the necessity for preventive action; jail custodian's knowledge that detainee was intox-

icated, had argued with her boyfriend, tried to ingest pills, and had a bullet in her

pocket did not support an inference of custodian's deliberate indifference to detainee's

welfare); Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990) (failure of officers to remove

belt and shoelaces from detainee who committed suicide and failure to provide him
with medical treatment for his psychological disorder does not rise to the level of

deliberate indifference); Popham v. City of Talladega, 908 F.2d 1561 (11th Cir. 1990)
(failure to prevent suicide does not constitute deliberate indifference where authorities

had no knowledge of detainee's suicidal tendencies). Cf. Simmons v. City of Philadelphia,
947 F.2d 1042, 1074-75 (3d Cir. 1991) (evidence that statistical profiles of detainees

likely to commit suicide were widely available and that police departments commonly
trained officers responsible for detainees to recognize suicide tendencies and to take

preventive measures supported jury's verdict that the need to train officers in suicide

detention and prevention should have been apparent to city policymakers despite the

extremely small number of suicides relative to the large number of intoxicated persons
detained each year).



1156 INDIANA LAW REVIEW [Vol. 25:1129

meaning and breadth of substantive due process as a guarantee against

abuses of government power.