Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

About that First Church of Cannabis case...

The First Church of Cannabis, and members of the Church, filed a lawsuit in July, 2015, under Indiana’s Religious Freedom Restoration Act, to allow members and congregants to use marijuana as a sacrament. The cause number assigned to the case, pending in Marion Circuit Court, is 49C01-1507-MI-022522. I am the attorney who represents the Plaintiffs. The Office of the Indiana Attorney General represents Defendants who are political entities or officials of the State “State Defendants”). The Office of Corporate Counsel represents Defendants who are political entities or officials of the City of Indianapolis or of Marion County (“City Defendants”).
I would ask the reader to note: I am counsel for, not a member of, the Church. Also, argument on the case is set for May 2, 2018.
We filed a Motion for Partial Summary Judgment in March, 2016. In December, 2017, the Indiana Attorney General, Curtis T. Hilll, Jr., made comments, intended for the media and, by extension, the public, about the case the implication of which is adverse. Those statements - as well as the State and City Defendants’ filings in December of 2017 and of March 29 of this year and the comments of others who are neither members of nor affiliated with the Church - are such that, to mitigate the effect of those comments as to public opinion, I believe release of portions of the Defendants’ filings and the filings of the Church is necessary for a better understanding of the case, the issues it raises, and the broader impact of RFRA and other laws.
Three points are important to note: (1) Jury trial was requested by none of the parties, but the adverse comments need to be addressed so the public has a more complete view of the case - Lincoln said “Let the People know the facts and the country will be free”; (2) These are public records accessible by anyone on-line - I will put them in this blog for easier access; and (3) I will remove the full caption and paragraphs that seem to me, for purposes of public discourse, surplusage. As I said, anyone can access the full documents on-line. I also shall endeavor to set out the arguments of the City and State Defendants, in the blogs ahead.
The blog today is from the Memorandum in support of the Motion for Partial Summary Judgment we filed in March, 2016:
I Standard for Determination of partial summary Judgment.
A party may seek summary judgment in her, his or its “favor upon all or any part” of the party’s claim. T.R. 56(A). A trial court should grant a motion for summary judgment only when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.Ct.App. 2012). All facts and reasonable inferences should be construed in favor of the nonmoving party. Id.
II. Both State and City Defendants, as a matter of law, admitted specific issues of fact,
A. [Indiana Trial Rule] 36(A) required Defendants respond to the Request for Admissions.
In regard to responses to Requests for Admissions, T.R. 36(A) provides, in relevant part:
“...The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny or that the inquiry would be unreasonably burdensome. ..”.
“Pursuant to T.R. 36(A) a party may not make such a response without a further statement that a reasonable inquiry has been made or that an inquiry would be unreasonably burdensome.” Such responses are properly deemed admissions and conclusive in the action. Gariup Constr. Co., Inc. v. Foster, 519 N.E.2d 1224, 1231 (Ind. 1988). This is consistent with the essential characteristic of a request for admission, which is to require, by either an admission or denial, an answer that is unambiguous, unequivocal and without the evasion often characteristic of answers to depositions and interrogatories. F.W. Means & Co. v. Carstens,m 428 N.E.2d 251, 256 (Ind.Ct.App. 1981). The purpose of a request for admission is not to “discover” a fact, but to conclusively “establish” that fact. Weldy v. Kline, 652 N.E.2d 107, (Ind.Ct.App. 1995), trans. denied. A party requesting admissions bears the burden of artfully drafting a statement of fact contained in the request for admission in a manner that is precise, unambiguous, and not misleading to the answering party. Id.
B. State Defendants should be deemed to have admitted material issues of fact.
1. State Defendants’ assertion that an inquiry would be nreasonably burdensome is without merit and the matters should be deemed admitted.
As our Supreme Court has held, a party may not respond to a request for admission by stating “it was without knowledge to determine whether a certain request was inaccurate or incorrect. Pursuant to T.R. 36(A) a party may not make such a response without a further statement that reasonable inquiry has been made or that an inquiry would be unreasonably burdensome.” Gariup Constr.,Inc., 519 N.E.2d at 1231.
In the section of their Responses titled “Preliminary Statement,” the State Defendants assert, in relevant part:
“2. To the extent Plaintiffs’ Requests are intended to reach beyond the State Defendants, the requests are overbroad, not reasonably calculated to lead to the discovery of admissible evidence, oppressive, and unreasonably burdensome. State Defendants will make a good faith effort to respond to the Requests using information within the possession, custody, or control of relevant components of the State Defendants.”
(State Defendants’ Responses, Exh. F, p. 2.)
In their Request for Admissions, Plaintiffs specifically stated, in relevant part:
“1. The answers shall specifically admit all matters contained in such request or specifically deny the matter or matters and indicate the reason for denial. The denial shall fairly meet the substance of the requested admission.
2. You may not give lack of information or knowledge as a reason for failure to admit or deny unless you state that you have made a reasonable inquiry and that the information obtainable is insufficient to enable the admission or denial of the requested matter.

3. Failure to admit or deny within thirty (30) days shall be deemed for all purposes to be an admission and may be used as such in a trial of the within cause and may permit Summary Judgment to be entered against you without benefit of hearing. Shaw v. S.S. Kresge Co., 328 N.E.2d 775 (Ind.Ct.App. 1975).”
(Requests for Admissions, Exhibit D, pp. 1-2.)
First, State Defendants do not state they have made any inquiry into the substance of any of the Requests for Admissions propounded by Plaintiffs. As will be set forth below, the State Defendants merely state they are “without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Request Number One and therefore deny said allegations.” (Exh F, p. 7.) Without any qualification, this language is identical to the language the Indiana Supreme Court found to constitute an admission in Gariup Constr., Inc.
Second, State Defendants attempt to qualify their responses in paragraph 2 of their Preliminary Statement by saying to “the extent Plaintiffs’ Requests are intended to reach beyond the State Defendants, the requests are overbroad, not reasonably calculated to lead to the discovery of admissible evidence, oppressive, and unreasonably burdensome.” (Exh. F, p. 2.) There is no claim that State Defendants have undertaken any inquiry.
Third, Indiana’s courts appear not to have specifically ruled on what constitutes a request for admission the inquiry into which would be “unreasonably burdensome.” This is what T.R. 36(A) requires—that the inquiry into the matter would be unreasonably burdensome. Again, State Defendants make no reference to any inquiry. When appropriate, Indiana’s courts will look to a federal decision court decision when interpreting the Indiana counterpart of a federal rule. Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 309 (Ind.Ct.App. 2000). Also, the decisions of the courts of other states are not controlling on Indiana courts, but if the question presented is one of first impression in Indiana’s courts, decisions of other states are instructive. Williams v. State, 873 N.E.2d 144, 148 (Ind.Ct.App. 2007). The United States Court of Claims determined that a plaintiff’s request for admissions were unduly burdensome and cited decisions of other Federal courts that “found requests for admission to be unduly burdensome when they are excessive in number, complicated, or ambiguous.” Smarton Corp. v. United States, 77 Fed.Cl. 10, 19-20( Fed.Ct.Cl. 2007). The Supreme Court of Mississippi found requests for admission unduly burdensome that were “33 pages in length and contain approximately 250 requests for admissions.” Haley v. Harbin, 933 So.2d 261, 262 (Miss. 2005).
The Requests for Admissions propounded to the State Defendants here cover four (4) pages and total thirteen (13) requests for admission. (Exh. D.)
2. State Defendants should be deemed to have admitted Requests for Admission Numbers 1, 3, 9, 12, and 13 under T.R. 36(A).
When a party fails to timely or adequately respond to a request for admission, the matter or matters contained therein are deemed admitted by operation of law. Larson v. Karagan, 979 N.E.2d 655, 660 (Ind.Ct.App. 2012). The party propounding the requests for admissions is not required to resort to seeking sanctions. Clark County State Bank v. Bennett, 166 Ind.App. 471, 479, 336 N.E.2d 663, 668 (1975).
Requests for Admissions Numbers One, Three, Nine, Twelve and Thirteen were propounded to, and Responses to those Requests for Admissions were received from, State Defendants as follows:
“Request Number One: The First Church of Cannabis, Inc., (hereinafter “Church”) through the beliefs and activities of its members and leaders, is an entity that engages in and advances the exercise of religion.
RESPONSE: State Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Request Number One and therefore deny said allegations. ...
Request Number Three: Marijuana (Cannabis sativa) (hereinafter “marijuana”) is regarded as a sacrament of the Church by the members and leaders of the Church.
RESPONSE: State Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Request Number Three and therefore deny said allegations. ...
Request Number Nine: [Individuals named as Plaintiffs] are members of the Church.
RESPONSE: State Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Request Number Nine and therefore deny said allegations. ...
Request Number Twelve: State Defendants’ enforcement of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13 substantially burden Plaintiffs’ exercise of religion.
RESPONSE: State Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Request Number Twelve and therefore deny said allegations.
Request Number Thirteen: Plaintiffs are sincere in their religious beliefs.
RESPONSE; State Defendants are without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Request Number Thirteen and therefore deny said allegations. “
(Exh. F, pp. 7-10.)
The language employed in State Defendants’ Responses is similar to the language our Supreme Court found insufficient in Gariup Constr., Inc., to constitute a denial. 519 N.E.2d at 1231. There is no statement State Defendants have undertaken any inquiry into the matters for which Plaintiffs seek admissions. Consequently, these matters are admitted by operation of law. Larson v. Karagan, 979 N.E.2d 655, 660 (Ind.Ct.App. 2012).
3. State Defendants should be deemed to have admitted Request for Admission 2 as they failed to respond as to what a “sacrament” is, not whether a definition of “sacrament” appears on the internet.

The essential characteristic of a request for admission, which is to require, by either an admission or denial, an answer that is unambiguous, unequivocal and without the evasion often characteristic of answers to depositions and interrogatories. F.W. Means & Co., supra,, 428 N.E.2d at 256. State Defendants had to either: (1) Specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter; (2) If denied, fairly meet the substance of the requested admission, and if good faith required State Defendants to qualify their answer or deny only a part of the matter in Request for Admission Number Two, specify so much of it as was true and qualify or deny the remainder; (3) Claim lack of information or knowledge but only if reasonable inquiry has been made and the information known or readily obtainable by State Defendants is insufficient to enable them to admit or deny or that the inquiry would be unreasonably burdensome, T.R. 36C; (4) Object, T.R. 36(A); or (5) Seek a protective order under T.R. 26C.
Plaintiffs’ Request for Admission Number 2 and State Defendants’ Response were:
“Request Number Two: A ‘sacrament’ is something regarded as possessing a sacred character or mysterious significance.
RESPONSE: State Defendants admit that the above definition is one of six definitions of the word ‘sacrament’ listed on the Internet site Dictionary.com. See ‘Sacrament,’ Dictionary.com, http://dictionary.reference.com/browse/sacrament (Last visited Sept. 30, 2015). State Defendants deny that the above definition is the only definition of the word ‘sacrament.’”
(Exh. F, p. 7.) [FN1: “Rather than refer to the internet, see Random House Webster’s Unabridged Dictionary, 2d ed., 2001, p. 1689: ‘something regarded as possessing a sacred character or mysterious significance.”
Request for Admission Number Two does not ask State Defendants to acknowledge that the matter contained in the Request is one of any number of definitions from any source. The Request asks State Defendants to admit or deny what the Request states a “sacrament” is. Since State Defendants failed to admit or deny that a “sacrament” is as set forth in Request for Admission Number Two, the matter is deemed admitted. Larson, supra, 979 N.E.2d at 660.
4. State Defendants should be deemed to have admitted Request for Admission Numbers 4, 5, 6, and 8.
Requests for admissions may, in addition to addressing evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the case. Larson, supra, 979 N.E.2d at 660.
In this case, Plaintiffs seek injunctive relief in regard to Indiana statutes that restrict possession and use of marijuana. ( .) A matter is “related” to something if it is “[c]onnected in some way; having relationship to or with something else.” Black’s Law Dictionary, 10th ed., 2014, p. 1479. Thus the statutes from which Plaintiffs seek injunctive relief inherently are related to the facts of the case.
Requests for Admissions Numbers Four, Five, Six, Seven, and Eight were
propounded to, and Responses to those Requests for Admissions were received from, State Defendants as follows:
“Request Number Four: Through Indiana Code 35-48-4-11, the possession of marijuana is a criminal offense in the State of Indiana.
RESPONSE: State Defendants admit that Indiana Code section 35-48-11 speaks for itself.
Request Number Five: Through Indiana Code 35-48-4-11, the possession of marijuana is a criminal offense in the County of Marion and the City of Indianapolis.
RESPONSE: State Defendants admit that Indiana Code section 35-48-11 speaks for itself.
Request Number Six: Through Indiana Code 35-48-4-13 a person who knowingly or intentionally visits a building in which the Church holds services, while another person in the building uses marijuana as a sacrament, commits a criminal offense in the State of Indiana.
RESPONSE: State Defendants admit that Indiana Code section 35-48-4-13 speaks for itself.
Request Number Seven: An effect of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13 is punishment of persons who possess marijuana in the State of Indiana.
RESPONSE: State Defendants admit that Indiana Code section 35-48-4-11 and -13 speak for themselves.
Request Number Eight: An effect of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13 is punishment of persons who knowingly or intentionally visit buildings in which other persons possess marijuana in the State of Indiana.
RESPONSE: State Defendants admit that Indiana Code section 35-48-4-11 and -13 speak for themselves.”
(Exh. F, pp. 8-10.)
A party requesting admissions bears the burden of artfully drafting a statement of fact contained in the request for admission in a manner which is precise, unambiguous, and not misleading to the answering party. Weldy v. Kline, 652 N.E.2d 107, 110 (Ind.Ct.App. 1995). The essential characteristic of a request for admission is that a request requires, by either admission or denial, an answer that is unambiguous, unequivocal and without the evasion often characteristic of answers to depositions and interrogatories. F.W. Means & Co., 428 N.E.2d at 256. Plaintiffs’ Requests for Admissions are declarative sentences of relatively short length. These specific Requests for Admission go beyond the statutes to which they refer. State Defendants’ Responses that the statutes speak for themselves do not address the full content of the Requests. Because State Defendants have failed to fully respond, the matter should be deemed admitted. Larson, supra, 979 N.E.2d at 660.
C. State Defendants should be deemed to have admitted material issues of fact.
Plaintiffs propounded Requests for Admission that were nearly identical to the Requests for Admission propounded to the State Defendants. (Exh. E.) In some instances City Defendants’ responses to specific Requests were identical to those of the State Defendants. However, City Defendants provided no introductory comments as did State Defendants.
1. City Defendants’ Response to Request for Admission[#s 1, 3, 9, 12, and 13] are inadequate as a matter of law, and an assertion that a matter “presents an issue for trial” is irrelevant.
As noted, a party may not respond to a request for admission by stating “it was without knowledge to determine whether a certain request was inaccurate or incorrect. Pursuant to T.R. 36(A) a party may not make such a response without a further statement that reasonable inquiry has been made or that an inquiry would be unreasonably burdensome.” Gariup Constr.,Inc., 519 N.E.2d at 1231.
Requests for Admissions [#s 1, 3, 9, 12 and 13] were propounded to, and Responses ... from, City Defendants [were] as follows:
“Request Number One: The First Church of Cannabis, Inc., (hereinafter “Church”) through the beliefs and activities of its members and leaders, is an entity that engages in and advances the exercise of religion.
RESPONSE: City/County Defendants are without sufficient information to admit or deny this Request. At this time discovery is just commencing and neither non-party requests have yet been issued nor depositions conducted by City/County Defendants, and this request cannot be fully answered at this time. Discovery is ongoing and City/County Defendants will supplement as required pursuant to the case management plan and the applicable rules of discovery. Further, this request presents an issue for trial and City/County Defendants deny. ...
Request Number Three: Marijuana (Cannabis sativa) (hereinafter “marijuana”) is regarded as a sacrament of the Church by the members and leaders of the Church.
RESPONSE: City/County Defendants are without sufficient information to admit or deny this Request. At this time discovery is just commencing and neither non-party requests have yet been issued nor depositions conducted by City/County Defendants, and this request cannot be fully answered at this time. Discovery is ongoing and City/County Defendants will supplement as required pursuant to the case management plan and the applicable rules of discovery. Further, this request presents an issue for trial and City/County Defendants deny. ...
Request Number Nine: [Individual] Plaintiffs ... are members of the Church.
RESPONSE: City/County Defendants are without sufficient information to admit or deny this Request. At this time discovery is just commencing and neither non-party requests have yet been issued nor depositions conducted by City/County Defendants, and this request cannot be fully answered at this time. Discovery is ongoing and City/County Defendants will supplement as required pursuant to the case management plan and the applicable rules of discovery. Further, this request presents an issue for trial and City/County Defendants deny. ...
Request Number Twelve: City Defendants’ enforcement of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13 substantially burden Plaintiffs’ exercise of religion.
RESPONSE: City/County Defendants are without sufficient information to admit or deny this Request. At this time discovery is just commencing and neither non-party requests have yet been issued nor depositions conducted by City/County Defendants, and this request cannot be fully answered at this time. Discovery is ongoing and City/County Defendants will supplement as required pursuant to the case management plan and the applicable rules of discovery. Further, this request presents an issue for trial and City/County Defendants deny.
Request Number Thirteen: Plaintiffs are sincere in their religious beliefs.
RESPONSE; City/County Defendants are without sufficient information to admit or deny this Request. At this time discovery is just commencing and neither non-party requests have yet been issued nor depositions conducted by City/County Defendants, and this request cannot be fully answered at this time. Discovery is ongoing and City/County Defendants will supplement as required pursuant to the case management plan and the applicable rules of discovery. Further, this request presents an issue for trial and City/County Defendants deny.”
(Exh. G, pp. 1-5.)
The language employed in City Defendants’ Responses, like that of the State Defendants, is similar to the language our Supreme Court found insufficient in Gariup Constr., Inc., to constitute a denial. 519 N.E.2d at 1231. There is no statement State Defendants have undertaken any inquiry into the matters for which Plaintiffs seek admissions. Consequently, these matters are admitted by operation of law. Larson v. Karagan, 979 N.E.2d 655, 660 (Ind.Ct.App. 2012).
Furthermore, one would infer City Defendants deny based on their assertion the requests present issues “for trial and City/County Defendants deny.” Requests for admissions may, in addition to addressing evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the case. Larson, supra, 979 N.E.2d at 660. Therefore, to the extent City/County Defendants interpose as a basis for denial that the requests seek issues for trial is insufficient as a response and, thus, an admission.
2. City-County Defendants should be deemed to have admitted Request for Admission [#2] as they fail to respond as to what a “sacrament” is, not whether a definition of “sacrament appears on the internet.
As noted, supra, Defendants had to either: (1) Specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter; (2) If denied, fairly meet the substance of the requested admission, and if good faith required State Defendants to qualify their answer or deny only a part of the matter in Request for Admission Number Two, specify so much of it as was true and qualify or deny the remainder; (3) Claim lack of information or knowledge but only if reasonable inquiry has been made and the information known or readily obtainable by State Defendants is insufficient to enable them to admit or deny or that the inquiry would be unreasonably burdensome, T.R. 36C; (4) Object, T.R. 36(A); or (5) Seek a protective order under T.R. 26C.
Plaintiffs’ Request for Admission Number Two was propounded to both State and City/County Defendants. City/County Defendants’ Response substantively was identical to State Defendants’ Response:
“Request Number Two: A ‘sacrament’ is something regarded as possessing a sacred character or mysterious significance.
RESPONSE: State Defendants admit that the above definition is one of six definitions of the word ‘sacrament’ listed on the Internet site Dictionary.com. See ‘Sacrament,’ Dictionary.com, http://dictionary.reference.com/browse/sacrament (Last visited Sept. 30, 2015). State Defendants deny that the above definition is the only definition of the word ‘sacrament.’”
(Exh. G, p. 2.) [Same footnote as previously.]
Request for Admission Number Two does not ask City/County Defendants to acknowledge that the matter contained in the Request is one of any number of definitions from any source. The Request asks State Defendants to admit or deny what the Request states a “sacrament” is. Since State Defendants failed to admit or deny that a “sacrament” is as set forth in Request for Admission Number Two, the matter is deemed admitted. Larson, supra, 979 N.E.2d at 660.
3. City/County Defendants should be deemed to have admitted Request for Admission [#s 4, 5, 6, 7 and 8].
Requests for admissions may, in addition to addressing evidentiary matters, ask for admissions as to legal issues, contentions, and conclusions, if related to the facts of the case. Larson, supra, 979 N.E.2d at 660. As noted previously, the statutes from which Plaintiffs seek injunctive relief inherently are related to the facts of the case.
Requests for Admission [#s 4, 5, 6, 7, and 8] were propounded to, and Responses ... from, City/County Defendants as follows:
“Request Number Four: Through Indiana Code 35-48-4-11, the possession of marijuana is a criminal offense in the State of Indiana.
RESPONSE: City/County Defendants admit that Indiana Code section 35-48-11 speaks for itself.
Request Number Five: Through Indiana Code 35-48-4-11, the possession of marijuana is a criminal offense in the County of Marion and the City of Indianapolis.
RESPONSE: City/County Defendants admit that Indiana Code section 35-48-11 speaks for itself.
Request Number Six: Through Indiana Code 35-48-4-13 a person who knowingly or intentionally visits a building in which the Church holds services, while another person in the building uses marijuana as a sacrament, commits a criminal offense in the State of Indiana.
RESPONSE: City/County Defendants admit that Indiana Code section 35-48-4-13 speaks for itself.
Request Number Seven: An effect of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13 is punishment of persons who possess marijuana in the State of Indiana.
RESPONSE: City/County Defendants admit that Indiana Code section 35-48-4-11 and -13 speak for themselves.
Request Number Eight: An effect of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13 is punishment of persons who knowingly or intentionally visit buildings in which other persons possess marijuana in the State of Indiana.
RESPONSE: City/County Defendants admit that Indiana Code section 35-48-4-11 and -13 speak for themselves.”
(Exh. G, pp. 2-3.)
These responses are substantively identical to those of the State Defendants. For the same reasons as set forth in regard to State Defendants’ inadequate responses to these specific requests for admissions, the matters should be deemed admitted. Larson, supra, 979 N.E.2d at 660.
4. City/County Defendants admit the Chief, IMPD, the Mayor of the City of Indianapolis, and the Marion County Sheriff are responsible for enforcement of the statutes at issue.
Requests for Admission Number Eleven was propounded to, and Responses to those Requests for Admissions were received from, City/County Defendants as follows
“Request Number Eleven: City Defendants are responsible for enforcement of Indiana Code 35-48-4-11 and Indiana Code 35-48-4-13.
RESPONSE: City/County Defendants admit as to Chief ... Indianapolis Mayor ... and Marion County Sheriff John Layton.”
(Exh. G, p. 4.)
III. Plaintiffs have established, without question of material issue of fact, that they are entitled to summary judgment in that: (1) Plaintiffs’ activities, burdened by State and City Defendants’ actions, are an exercise of religion; (2) the State and City/County Defendants’ actions substantially burden Plaintiffs’ exercise of their religion; and therefore (3) the burden shifts to City/County and State Defendants to justify this burden.

A. Plaintiffs’ activities are protected by Indiana’s Religious Freedom Restoration Act (“RFRA”) from actions by the State and the City/County Defendants.
Indiana’s RFRA took effect July 1, 2015. I.C. § 34-13-9, et seq. I.C. § 34-13-9-8(a) provides that “a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.”
1. A three-part test generally has been applied to RFRA cases.
“Once a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny.”
Korte v. Sebelius, 735 F.3d 654, 673 (7th Cir. 2013), citing Gonzales v. O Centro Espiritia Benficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006).
Other States either have adopted statutes similar to Indiana’s RFRA or amended their constitution to address concerns some felt after the United States Supreme Court issued its decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Congress enacted the Religious Freedom Restoration Act, and noted in Smith, the “‘Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.’” 42 U.S.C. § 2000bb(a)(4), cited in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1067 (9th Cir. 2008). See Alabama, AL CONST Art. I, § 3.01; Arizona, ARS § 41-1493.01; Connecticut, C.G.S.A. § 52-571b; Florida, F.S.A. § 761.01, et seq.; Idaho, I.C. § 73-402; Illinois, IL ST CH 775 § 35/20, et seq.; Kansas, K.S.A. 60-5301, et seq.; Kentucky, KRS § 446.350; Louisiana, LSA-R.S. 13 § 5231, et seq.; Mississippi, Miss. Code Ann. § 11-61-1; Missouri, V.A.M.S. 1.302; New Mexico, N.M.S.A. § 28-22-1, et seq.; Oklahoma, 51 Okl.St.Ann. § 251, et seq.; Pennsylvania, 71 P.S. § 2401, et seq.; Rhode Island, Gen. Laws 1956, § 42-80-1-1, et seq.; South Carolina, SC Code 1976 § 1-32-10, et seq.; Tennessee, T.C.A. § 4-1-407; Texas, V.T.C.A. § 110.001, et seq.; Virginia, Va.C.A. § 57-1, et seq.
Where no Indiana case adequately addresses issues involved in a case, decisions of other jurisdictions may be instructive. Kuehne v. United Parcel Service, Inc., 868 N.E.2d 870, 874 (Ind.Ct.App. 2007). We consider cases of other states as persuasive authority. Williams v. State, 873 N.E.2d 144, 148 (Ind.Ct.App. 2007). A matter is “applicable” if it is “applying or capable of being applied; relevant; suitable; appropriate...” Random House Webster’s Unabridged Dictionary, 2d ed., 2001, p. 102. It is appropriate, under proper circumstances, to look to decisions of other jurisdictions. Steiner v. State, 763 N.E.2d 1024, 1027 (Ind.Ct.App. 2002).
The Federal statute, 42 U.S.C. § 2000bb, et seq., was held, by the United States Supreme Court, to be inapplicable to the States. City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 2172, 138 L.Ed.2d 624, 649 (1997). Interpretation of the Federal statute is instructive, although not controlling, as is the case law of Indiana’s sister States. “Once a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny.” Korte, supra, 735 F.3d at 673 (7th Cir. 2013), citing O Centro Espiritia, 546 U.S. at 428, 126 S.Ct. 1211.
State appellate courts have adopted this construction in application of the state statute in question. “Once the claimant establishes a religious belief that is sincerely held and substantially burdened, the burden shifts to the state to demonstrate that its action furthers a ‘compelling governmental interest’ and is ‘[t]he least restrictive means of furthering that compelling governmental interest.’” State v. Hardesty, 222 Ariz. 363, 366, 214 P.3d 1004, 1007 (2009). Accord, State v. Cordingley, 154 Idaho 762, 765, 302 P.3d 730, 733 (2013).
2. Plaintiffs have met the first two (2) parts of the RFRA test and the burden now shifts to State and City/County defendants.
There is no issue of material fact that Plaintiffs have met the first two (2) prongs of the RFRA test and, therefore, are entitled to partial summary judgment as a matter of law.
a. Plaintiffs are engaged in exercise of their religion.
The First Amendment of the United States Constitution provides that government make no law “prohibiting the free exercise” of religion. Government cannot determine what religious beliefs are to be protected:
The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.
United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 887, 88 L.Ed. 1148 (1944). Also in Ballard, the Court held that sincerity of one’s belief is not a proper area for government to invade. In dissent, Justice Jackson noted “any inquiry into intellectual honesty in religion raises profound psychological problems.” 322 U.S. at 93, 64 S.Ct. at 889.
Our State’s Constitution provides: “No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.” Ind.Cont. Art. 1 § 3. Also: “No preference shall be given, by law, to any creed, religious society, or mode of worship...” Ind.Const. Art. 1, § 4.
I.C. § 34-13-9-5 defines “Exercise of religion”:
“As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
The United States Supreme Court has recognized “communion by drinking a sacramental tea, brewed from plants ... that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government” as protected by the Federal RFRA. O Centro Espirita, 546 U.S. at 423.
As noted above, State Defendants and City/County Defendants have admitted, as a result of their Response to Request for Admission Number One, that “the First Church of Cannabis through the beliefs and activities of its members and leaders, is an entity that engages in and advances the exercise of religion.” (Exh. F, p. 7; Exh. G, pp. 1-2.) The Church a not-for-profit corporation organized under the laws of the State of Indiana and a religious society with principal place of business at 3400 South Rural Street, Indianapolis, Marion County, Indiana, and therefore comes within the protection of RFRA. I.C. § 34-13-9-7((2). (Complaint, Exh. A, p. 2; Affidavit of Bill Levin, Exh. H.) The individual Plaintiffs are protected by the statute. I.C. § 34-13-9-7(1).
State Defendants also have admitted, through their lack of Response to Request for Admission Number Nine, that the individual Plaintiffs are members of the First Church of Cannabis. (Exh. F., p. 9.)
Plaintiff Bill Levin states in his Affidavit, in relevant part, that he is “a member, and Grand Poobah, of the First Church of Cannabis (hereinafter ‘Church’)...” (Exh. H, para. 2.) Levin also states he is sincere in his beliefs. (Id.)
Whether one agrees with the beliefs of the Church is irrelevant. The Church is a religious organization engaged in exercise of religion.
b. Defendants have placed a substantial burden on Plaintiffs’ exercise of their religion.
I.C. § 34-13-9-6 defines “governmental entity”:
“As used in this chapter, ‘governmental entity’ includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following:
(1) State government.
(2) A political subdivision (as defined in IC 36-1-2-13).
(3) An instrumentality of a governmental entity described in subdivision (1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.”
In their Answer to Plaintiffs’ Complaint, State Defendants admit Indiana is a governmental entity. (Answer, Exh. C, para. 10.) It should be inferred State Defendants denied any of the named State officials “acted under color or title of State law” as Defendants denied “any remaining allegations set forth in” each of the applicable paragraphs “because they are vague and ambiguous” and the allegation those persons “acted under color or title of State law” lay amongst the “remaining allegations set forth in” each such paragraph. (Answer, Exh. C, para. 10, 11, and 12.) However, State Defendants admit in their Answer to Plaintiffs’ Complaint that “the Office of the Governor is a governmental entity” (Id., para. 10), that the “Office of the Attorney General is a governmental entity” (Id., para. 11), and that “the Indiana State Police is a governmental entity.” (Id.) City/County Defendants admit that the Chief of IMPD, IMPD, the Mayor of Indianapolis, and the Marion County Prosecutor are responsible for enforcement of the laws against possession of marijuana at issue here. (Answer, Exh. B, para. 13, 14.)
Art. 5, § 16 of the Indiana Constitution provides that the “Governor shall take care that the laws are faithfully executed.” “The [Indiana] Attorney General has broad powers in the enforcement of the criminal laws of the state.” 3 I.L.E., Attorney General, §7. I.C. § 10-11-2-6 provides for the appointment of a superintendent of the Indiana state Police by the Governor, and that the Superintendent “is the executive officer ... and has general charge of the work of the department” of the Indiana state Police.
Both State and City/County Defendants should be deemed to have admitted, as a matter of law, Request for Admission Number Twelve: enforcement of the statutes in question substantially burdens Plaintiffs’ exercise of religion. Supra.
Even if Defendants had not admitted this, the matter is fairly obvious. As the United States Supreme Court noted in O Centra Espiritia, 546 U.S. at 426, 126 S.Ct. at 1217, “the Government conceded that the challenged application of the Controlled Substances Act would substantially burden” the exercise of religion of the Christian spiritist sect that brought the action. That the Plaintiffs here face arrest, prosecution, and imprisonment in the event they use the sacrament of the Church would seem to meet the notion of “substantial burden.” Likewise in Hardesty the Arizona Supreme Court noted “the law prohibiting possession of marijuana substantially burdened” Hardesty’s exercise of his religion. 222 Ariz. at 366, 214 P.3d at 1007. In Cordingley, the Idaho Supreme Court examined “substantial burden” under RFRA, in the context of Idaho’s statute:
RFRA case law has yielded three main interpretations of the statute’s substantial burden prong: the compulsion test (limiting the applicability of the RFRA to practices that were mandated or compelled by the claimant’s religion), the centrality test (requiring a claimant to establish the burdened practice interfered with a central tenet of religious doctrine); and the religious motivation test (only requiring a demonstration that the government prevented the claimant from engaging in conduct both important to them and motivated by sincere religious belief). (citations omitted.) By specifically defining “exercise of religion” as conduct “‘substantially motivated’ by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief,’ the Idaho legislature clearly codified the latter of the three interpretations in the FERPA. I.C. § 73-401(2).
154 Idaho at 766, 302 P.3d at 734, n. 3.
Indiana’s statute defines “Exercise of religion” in almost identical terms: “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” I.C. § 34-13-9-5. Our statute does not define “substantially burden.” Scholarly authority defines “substantial” as: “Important, essential, and material; of real worth and importance.” Black’s Law Dictionary, 10th ed., 2014, p. 1656. That same source defines “burden” in what would seem this context as: “Something that hinders or oppresses.” Id., p. 236.
As argued above, State Defendants and City/County Defendants, through failure to adequately respond to Requests for Admission Numbers Two and Three have admitted both that a sacrament “is something regarded as possessing a sacred character or mysterious significance” and that marijuana “is regarded as a sacrament of the Church by the members and leaders of the Church.” (Exh. F, p. 7; Exh. G, p. 2.)
On June 26, 2015, IMPD[’s] ... and [the] Marion County Prosecutor ... held a press conference during which they stated anyone who smoked marijuana at Church services would be arrested under the statutes in question.
Once Plaintiffs have established the first two (2) parts of the RFRA test, the burden shifts to the State, under a standard of strict scrutiny, to justify the substantial burden established. O Centra Espirita, 546 U.S. at 424, 126 S.Ct. 1216.

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