Charlynn G. Hulse v. Indiana State Fair Board

FILED
Feb 28 2018, 7:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
William Bock, III Curtis T. Hill, Jr.
Christopher H. Park Attorney General of Indiana
Kroger, Gardis & Regas, LLP Frances H. Barrow
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charlynn G. Hulse, February 28, 2018
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1611-PL-2654
v. Appeal from the Marion Superior
Court
Indiana State Fair Board, The Honorable Gary L. Miller,
Appellee-Defendant. Judge
Trial Court Cause No.
49D03-1511-PL-37702
Pyle, Judge.
Statement of the Case
[1] Charlynn G. Hulse (“Hulse”) appeals the trial court’s grant of summary
judgment in favor of the Indiana State Fair Board (“Fair Board”) on her
complaint for declaratory and injunctive relief. She argues that the trial court
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erred when it granted summary judgment in favor of the Fair Board because a
condition for participating in the State Fair’s china painting competition
violates her First Amendment right to free speech. Because we conclude that
Hulse does not have standing to raise her First Amendment claim and does not
have a ripe overbreadth claim, we affirm the trial court’s grant of summary
judgment.
[2] We affirm.
Issue
Whether the trial court erred when it granted summary judgment
in favor of the Fair Board.
Facts
[3] The Fair Board administers Indiana’s annual State Fair, including the fair’s
Home and Family Arts Department’s fine arts competitions. In order to exhibit
at the State Fair and compete in the fine arts competitions, participants must
agree to the “General Terms and Conditions” (“Terms and Conditions”) listed
in the fair’s entry book and follow the individual rules for each competition.
(App. Vol. 2 at 24). General Principle number 6 (“General Principle 6”) of the
Terms and Conditions states that “No exhibitor may take exception to the
decisions of an official and/or judge in an unprofessional and/or public manner
nor shall any exhibitor or person representing the exhibitor interfere with or
show disrespect to any judge or show official.” (App. Vol. 2 at 26). An
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exhibitor that takes exception to the decisions of an official or judge must,
instead, follow the fair’s established procedure for filing a grievance.1
[4] Hulse regularly exhibited in the State Fair’s fine arts competitions for several
years. During this time, she believed that she witnessed several exhibitors
violate the fair’s china painting competition rules by entering copied, rather
than original, work and by violating the rules in other respects. In 2014, Hulse
discussed these violations with Fair Board member Douglas W. Huntsinger
(“Huntsinger”). However, she did not file a written grievance or pay the $500
filing fee required for an official grievance; nor did Huntsinger act on her
complaints.
[5] Subsequently, Hulse saw the following statement in the Indiana World
Organization of China Painters’ (“IWOCP”) September 27, 2014 meeting
minutes:
The person in charge of the china [p]ainting exhibit at the State
Fair had a complaint from an individual that some of the china
painting exhibits were copies. The complaint was dismissed
because of insufficient evidence. The State Fair people are going
to document future complaints and this particular individual may
be banned from the State Fair if the complaints become a
nuisance. The rules for non-professional pieces are more lenient.
Regina reported that the State Fair exhibit and demonstrations
went well.
1
Among other requirements, an official grievance must be “presented in writing” and “accompanied by a
$500 cash or money order made out to the Indiana State Fair.” (App. Vol. 2 at 27).
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(App. Vol. 2 at 124). Hulse filed a public record request asking for
documentation of “[a]ny grievances, complaints, or other similar documents,
filed or attempted to be filed,” in the 2014 State Fair china painting
competitions. (App. Vol. 2 at 148). She received a response that no records
matched her request because no grievances had been filed in 2014.
[6] In the summer of 2015, Hulse again participated in the State Fair and again
thought she witnessed several china painting competition rule violations, as
well as unethical judging practices. As a result, she filed an official written
grievance with the Fair Board on August 21, 2015. Huntsinger responded to
the grievance, telling her that he refused to accept it because it was untimely.
Over the next month, Hulse exhausted her administrative appeal remedies and
then filed a petition for judicial review.
[7] While her petition for judicial review in that cause was pending, Hulse filed a
complaint in the instant cause seeking a declaratory judgment that General
Principle 6 of the Terms and Conditions is unconstitutional. She also sought
preliminary and permanent injunctions preventing the State Board from
enforcing General Principle 6. In her complaint, Hulse argued that General
Principle 6 is a content-based restriction on her right to free speech that is
unconstitutional under the First Amendment of the United States Constitution
because it is not narrowly tailored to serve a compelling government interest.
[8] On December 30, 2015, Hulse filed a motion for summary judgment on her
complaint. In support of this motion, Hulse designated an affidavit in which
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she averred that, when she had discussed her grievances with Huntsinger in
2014, he had told her not to pay the $500 filing fee required for a formal
grievance and that he would handle the issues she had raised. She believed that
this discussion with Huntsinger was the complaint mentioned in the IWOCP
minutes because her public records request had revealed that no one else had
filed any grievances regarding the china painting competitions in 2014. As a
result, she claimed that the IWOCP’s minutes demonstrated that she faced the
prospect of being banned from participation in the State Fair if she exercised her
right to free speech by criticizing the judging in the china painting competitions.
[9] On March 23, 2016, the Fair Board filed a response in opposition to Hulse’s
motion for summary judgment, as well as a cross-motion for summary
judgment. The Board argued, in relevant part, that General Principle 6 does
not violate the First Amendment because it is content-neutral and narrowly
tailored to serve a compelling state interest.
[10] In support of its cross-motion for summary judgment, the Fair Board
designated an affidavit from Huntsinger. In the affidavit, Huntsinger averred
that he had not been “required” to act on Hulse’s attempted 2014 grievance
because she had never filed a formal, written grievance. (App. Vol. 2 at 171).
He said that Hulse had “led [him] to believe that she would put her suggested
edits to the rules in writing and send them to [him]” but had not done so in
spite of “multiple” follow-up requests. (App. Vol. 2 at 171-72). As for the
IWOCP’s minutes, Huntsinger “strongly refuted” that any State Fair staff or
Board members had made any comments to the IWOCP about a person filing a
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complaint during the 2014 state fair. (App. Vol. 2 at 172). Further, Huntsinger
averred that the State Fair had never directly or indirectly threatened to ban
Hulse from exhibiting at the fair.
[11] On November 6, 2016, the trial court entered an order granting summary
judgment in favor of the Fair Board. The trial court concluded that Hulse had
waived her constitutional rights by agreeing to be bound by the Terms and
Conditions when she entered the china painting competitions. In addition, the
trial court also addressed the merits of Hulse’s claim and concluded that
General Principle 6 does not violate the First Amendment because it is content-
neutral and narrowly tailored to serve a compelling state interest. Hulse now
appeals.
Decision
[12] On appeal, Hulse argues that the trial court erred in granting summary
judgment in favor of the Fair Board. She requested in her motion for summary
judgment for the trial court to issue a declaratory judgment that General
Principle 6 is unconstitutional, and the Fair Board filed a cross-motion for
summary judgment arguing that it was entitled to judgment as a matter of law
because Hulse had waived her constitutional rights and because General
Principle 6 is not unconstitutional. Now, Hulse contends that the Fair Board
failed to prove that it was entitled to judgment as a matter of law. In response,
the Fair Board argues, among other arguments, that the trial court did not err in
concluding that it was entitled to judgment as a matter of law because Hulse
lacked standing to raise her claim.
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[13] We review an order for summary judgment de novo, which is the same
standard of review applied by the trial court. Miller v. Town Bd. of Sellersburg, 88
N.E.3d 217, 218 (Ind. Ct. App. 2017). The moving party must “‘affirmatively
negate an opponent’s claim’ by demonstrating that the designated evidence
raises no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Id. (quoting Ind. Restorative Dentistry, P.C. v. Laven
Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015)). The burden then shifts to the
nonmoving party to demonstrate a genuine issue of material fact. Id.[14] Preliminarily, we will address the Fair Board’s argument that Hulse lacked
standing. While the trial court did not address the issue of standing in its order,
we may affirm the entry of summary judgment on any grounds supported by
the designated evidentiary materials. Bragg v. Kittle’s Home Furnishings, Inc., 52
N.E.3d 908, 919 (Ind. Ct. App. 2016), reh’g denied, trans. denied. Further, as a
matter of jurisprudence, “we do not decide cases upon constitutional grounds
when they can be decided upon other grounds.” Superior Const. Co. v. Carr, 564
N.E.2d 281, 284 (Ind. 1990).
[15] “‘The doctrine of standing focuses on whether the complaining party is the
proper person to invoke the Court’s power.’” Bd. of Trustees of Purdue Univ. v.
Einstein, 87 N.E.3d 481, 503 (Ind. Ct. App. 2017) (quoting Barnette v. U.S.
Architects, LLP, 15 N.E.3d 1, 11 (Ind. Ct. App. 2014), reh’g denied). “‘The
standing requirement restrains the judiciary to resolving only those cases and
controversies in which the complaining party has a demonstrable injury.’” Id.(quoting Barnette, 15 N.E.3d at 11) (emphasis added). Whether a party has
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standing is a pure question of law that we review de novo. Bellows v. Bd. of
Comm’rs of Cty. of Elkhart, 926 N.E.2d 96, 113 (Ind. Ct. App. 2010).
[16] Although Indiana has very little precedent regarding the issue of standing in the
context of the First Amendment, we find federal holdings on the subject
dispositive. Federal cases reveal that a plaintiff must show evidence of three
elements to establish standing: (1) the plaintiff has suffered an “injury in
fact”—an invasion of a legally protected interest that is “concrete and
particularized” and “‘actual or imminent, not ‘conjectural’ or ‘hypothetical,’”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)); (2) there is a causal connection between the
injury and the conduct complained of; and (3) it is “‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”
Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)).
[17] Hulse argues that she has suffered and will suffer an “injury in fact” because the
Fair Board may ban her from exhibiting at a fine arts competition under
General Principle 6 if she expresses disagreement with the china competition
results. She also argues that fear of being banned has “chilled” her speech on
the issue. (Hulse’s Reply Br. 9).
[18] As for Hulse’s argument that General Principle 6 has “chilled” her speech, we
note that “[c]hilled speech is, unquestionably, an injury supporting standing.”
Bell v. Keating, 697 F.3d 445, 453 (7th Cir. 2012). However, “‘allegations of a
subjective chill [are] not an adequate substitute for a claim of specific present
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objective harm or a threat of specific future harm.’” Id. at 454 (quoting Laird v.
Tatum, 408 U.S.1, 13-14 (1972), reh’g denied). Hulse has failed to show an
objective harm here as Hulse continued to file a grievance and lawsuit after she
read the IWOCP’s minutes and perceived a threat of being banned. Her actions
demonstrate that her exercise of her right to free speech has not been chilled.
[19] As for Hulse’s argument that it is likely she might be banned from participating
in the fair in the future, we note that an allegation of a potential future injury
“‘may suffice” to establish standing “if the threatened injury is certainly
impending, or there is a substantial risk that the harm will occur.’” Kiser v.
Reitz, 765 F.3d 601, 607-08 (6th Cir. 2014) (quoting Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2341 (2014)). A plaintiff satisfies this requirement
when she alleges “an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979). This threat need not be criminal
in nature; “[a]dministrative action, like arrest or prosecution, may give rise to
harm sufficient to justify pre-enforcement review.” Susan B. Anthony List, 134
S.Ct. at 2345.
[20] Here, Hulse has not established that she will imminently suffer an injury in fact
because her intended conduct is not “proscribed by statute.” See Babbitt, 442
U.S. at 298. Hulse asserts that she might be banned from the china painting
contest as a result of filing a grievance regarding the competition’s judging, but
the Terms and Conditions do not proscribe the filing of grievances. In fact,
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they explicitly authorize a procedure for filing grievances and specify that all
persons submitting grievances shall have due process rights. See (App. Vol. 2 at
27) (“Within twenty-four (24) hours of observing any suspected infraction,
Exhibitors competing in an Open Class competition shall personally present a
Grievance Form (found at page 9) to the Entry Office in the Communications
building . . . . The person(s) submitting the grievance shall have the due process
rights set forth in the Due Process section . . . .”).2 The Terms and Conditions
also allow exhibitors to appeal the decisions of judges “when it is charged that
the award has been made in violation of the terms and conditions governing the
exhibit.” (App. Vol. 2 at 28).
[21] Additionally, Hulse has not shown that she faces a credible threat of
prosecution. See Babbitt, 442 U.S. at 298. She claims that the IWOCP minutes
indicated that the Fair Board had considered banning her in the past. However,
regardless of whether the statements mentioned in the IWOCP minutes can be
attributed to the Fair Board, the Board has not shown any indications of
invoking General Principle 6 in response to Hulse’s grievances. To the
contrary, as stated above, Hulse filed further grievances in 2015 after the
IWOCP released its minutes, yet she was allowed to continue participating in
the fair in 2016. In light of these factors, we conclude that Hulse has not
2
These due process rights include notice of a penalty and the right to appeal.
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asserted an imminent injury in fact necessary to acquire standing to challenge
General Principle 6 as it applies to her.
[22] Nevertheless, Hulse notes that, in the First Amendment context, plaintiffs
generally have standing to raise claims on behalf of others, even if they do not
have standing themselves. See Dream Palace v. Cty. of Maricopa, 384 F.3d 990,
999 (9th Cir. 2004). This exception applies in cases where a statute is overly
broad. See id. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984), abrogated on
other grounds, which noted that the overbreadth doctrine functions as an
exception to “‘the general prohibition on a litigant’s raising another person’s
legal rights’”). In such cases, the doctrine “‘serves to overcome what would
otherwise be a plaintiff’s lack of standing.’” 4805 Convoy, Inc. v. City of San
Diego, 183 F.3d 1108, 1112 (9th Cir. 1999) (quoting Nunez v. City of San Diego,
114 F.3d 935, 949 (9th Cir. 1997)). The reason for this special rule in First
Amendment cases is that “[a]n overbroad statute might serve to chill protected
speech.” See Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977), reh’g denied.
[23] However, we conclude that Hulse’s overbreadth claim is not ripe. While the
overbreadth doctrine provides exceptions to the general rules on standing, it
does not establish ripeness. Hallandale Professional Fire Fighters Local 2238 v. City
of Hallandale, 922 F.2d 756, 760 n. 4 (11th Cir. 1991) (clarifying that the
overbreadth doctrine addresses “the standing aspect of justiciability, not
ripeness”) (emphasis in original). In other words, the doctrine does not “stand
for the proposition that no actual or impending injury is necessary; instead [it]
say[s] that this plaintiff may be allowed to launch the attack even though he is
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not, or will not be, the one suffering the actual or impending injury.” Id. Even
in an overbreadth claim, plaintiffs must “‘demonstrate an injury in fact,” as
required under the ripeness doctrine, “to invoke a . . . court’s jurisdiction.’” Id.(quoting 4805 Convoy, Inc., 183 F.3d at 1112).
[24] Hulse has not designated any evidence that any other potential plaintiff has
suffered or will suffer an imminent injury in fact as a result of General Principle
6. As a result, we conclude that her claim that she may challenge General
Principle 6 as being overly broad is not ripe for our review.
[25] Because Hulse lacked standing to raise her “as applied” challenge to General
Principle 6 and her overbreadth challenge is not yet ripe, we conclude that the
Fair Board was entitled to judgment as a matter of law. See Prasco, LLC v.
Medicis Pharmaceutical Corp., 537 F.3d 1329, 1336 (Fed. Cir. 2008) (noting that
standing and ripeness are the “absolute constitutional minimum for a justiciable
controversy”). Therefore, the trial court did not err in granting summary
judgment in the Fair Board’s favor.
[26] Affirmed.
May, J., and Brown, J., concur.
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