ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
KENNETH J. FALK STEVE CARTER
Indiana Civil Liberties Union Attorney General of Indiana
THOMAS M. FISHER
Deputy Attorney General
ATTORNEYS FOR AMICI CURIAE:
American Family Association of Indiana:
Jensen & Associates
Senators John Waterman and R. Michael Young
and Representative Woody Burton:
MICHAEL J. CORK
Bamberger, Foreman, Oswald & Hahn, LLP
COURT OF APPEALS OF INDIANA
JANA CORNELL, )
vs. ) No. 49A02-0208-CV-635
JOHN HAMILTON, in his official )
capacity as Secretary of the Indiana Family )
and Social Services Administration, and )
D. SUE ROBERSON, in her official capacity )
as State Personnel Director, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cynthia Ayres, Judge
Cause No. 49D04-0002-CP-180
July 8, 2003
OPINION - FOR PUBLICATION
Jana Cornell appeals the trial courts decision to grant the motion for summary
judgment filed by John Hamilton and D. Sue Roberson (the State) and to
deny her motion for summary judgment in her suit against them. She
raises the following issue for review:
Whether the States funeral leave policy, under which an employee may be granted
funeral leave upon the death of a qualified relative, the death of a
spouses qualified relative, or the death of a member of an employees household,
but homosexuals, who are prohibited by law from marrying their domestic partners, are
not granted funeral leave for the death of qualified relatives of their domestic
partners, violates the Privileges and Immunities Clause of the Indiana Constitution as applied
FACTS AND PROCEDURAL HISTORY
This case was decided on stipulated facts, including the following: Jana Cornell
is a state employee. She is also a lesbian in a committed,
five-year relationship with a woman who will be referred to as her domestic
partner. Cornell and her domestic partner hold themselves out to the community
as a committed couple and generally share their lives with one another.
Cornell would marry her domestic partner if she were able, but by state
law, marriage between two women is prohibited. See IC 31-11-1-1.
In 1999, the father of Cornells domestic partner died. The States policy
regarding paid leave in the event of a persons death provides:
The appointing authority may allow leave with pay, not to exceed the employees
next three (3) regularly scheduled work days, in the event of the death
of any relative specified in this section. . . . Such leave may
be granted upon the death of a husband, wife, father, mother, son, daughter,
brother, sister, grandparent, grandchild, or the spouse of any of these, or a
person living in the same household with the employee. For a married
employee, these members of the spouses family are included.
31 IAC 1-9-7(B). Under this policy, Cornell requested three days of funeral
leave, and her immediate supervisor, who was aware of Cornells personal situation, approved
the request. However, the State personnel department eventually denied the request because
Cornells domestic partner was not her spouse, and it therefore concluded that she
was not eligible for funeral leave under the circumstances. Cornell used three
vacation days to receive compensation for the three days in question.
Cornell brought suit against the State alleging that the funeral leave policy violated
the Privileges and Immunities Clause of the Indiana Constitution. The State argued
that she failed to exhaust her administrative remedies. The trial court agreed
and dismissed Cornells case. She appealed, and a panel of this court
reversed the trial courts decision and remanded the case to the trial court
for further proceedings.
See Cornell v. Humphries, No. 49A02-0008-CV-515 (Ind. Ct. App.
Feb. 27, 2001), trans. denied.
On remand, the parties entered stipulated facts, and both parties filed motions for
summary judgment. The trial court denied Cornells motion and granted the States
motion, finding that the funeral leave policy did not violate the Privileges and
Immunities Clause because it treated all unmarried persons the same. Cornell appeals.
DISCUSSION AND DECISION
Cornell appeals from the trial courts ruling on cross motions for summary judgment.
The fact that the parties file cross motions for summary judgment does not
alter our standard of review. KPMG, Peat Marwick, LLP v. Carmel Financial
Corp., Inc., 784 N.E.2d 1057, 1060 (Ind. Ct. App. 2003). When reviewing
the grant or denial of a summary judgment motion, this court applies the
same legal standard as the trial court, i.e., summary judgment is appropriate when
no designated genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law. Indiana Ins. Co. v.
Am. Cmty. Servs., Inc., 718 N.E.2d 1147, 1152 (Ind. Ct. App. 1999); May
v. Frauhiger, 716 N.E.2d 591, 594 (Ind. Ct. App. 1999) (citing Ind. Trial
Rule 56(C)); Birrell v. Indiana Auto Sales & Repair, 698 N.E.2d 6, 7
(Ind. Ct. App. 1998), trans. denied. This court may not search the
entire record but may only consider the evidence that has been specifically designated.
Indiana Ins. Co., 718 N.E.2d at 1152; Birrell, 698 N.E.2d at 7.
All pleadings, affidavits, and testimony are construed liberally and in the light
most favorable to the nonmoving party. May, 716 N.E.2d at 594.
The parties agree that the applicable law is
Article I, Section 23 of
the Indiana Constitution, the Privileges and Immunities Clause, which provides: The General Assembly
shall not grant to any citizen, or class of citizens, privileges or immunities,
which, upon the same terms, shall not equally belong to all citizens.
Privileges and immunities claims brought under Article I, Section 23 are analyzed separately
from claims brought under the equal protection clause of the Fourteenth Amendment to
the United States Constitution. Collins v. Day, 644 N.E.2d 72, 80 (Ind.
In Collins, our supreme court faced the issue of whether the exclusion of
agricultural employers from the compulsory scope of the Workers Compensation Act violated the
Privileges and Immunities Clause. In doing so, it announced the appropriate test
to determine whether Article I, Section 23 has been violated. After reviewing
the historical underpinnings of the provision, it examined the body of case law
interpreting the provision and discovered recurrent themes, which it distilled into a two
step test for determining whether a challenged classification violates the Privileges and Immunities
where the legislature singles out one person or class of persons to receive
a privilege or immunity not equally provided to others, such classification must be
based upon distinctive, inherent characteristics which rationally distinguish the unequally treated class, and
the disparate treatment must be reasonably related to such distinguishing characteristics.
Id. at 78-79. The court explained that this requirement addresses the concern
that legislative classifications be just and reasonable, not arbitrary or capricious. Thus,
the differential statutory treatment must be reasonably related to inherent characteristics that distinguish
the unequally treated class. Ben-Yisrayl v. State, 753 N.E.2d 649, 656 (Ind.
2001), cert. denied, 122 S. Ct. 2382, 153 L. Ed. 2d 201 (2002);
Conrad v. State, 747 N.E.2d 575, 584 (Ind. Ct. App. 2001), trans. denied;
Schulz v. State, 731 N.E.2d 1041, 1045 (Ind. Ct. App. 2000), trans. denied.
Collins court addressed the need for uniformity and equal availability of the
preferential treatment for all persons similarly situated in the second prong of the
test. Thus, any privileged classification must be open to any and all
persons who share the inherent characteristics which distinguish and justify the classification, with
the special treatment accorded to any particular classification extended equally to all such
persons. Id. at 79. See also Ben-Yisrayl, 753 N.E.2d at 656;
Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 696 (Ind. 2000); Conrad, 747
N.E.2d at 584. Courts must employ this standard while giving substantial deference
to the legislature. Boggs, 730 N.E.2d at 696; Collins, 644 N.E.2d at
80; Schulz, 731 N.E.2d at 1045. That is, [l]egislative classification becomes a
judicial question only where the lines drawn appear arbitrary or manifestly unreasonable.
Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701,
310 N.E.2d 867, 869 (1974)).
While the court in Collins explained that there are two types of statutes
-- those that create special privileges and those that impose special burdens --
it also recognized that implicit in an enactment that imposes an unequal burden
is the grant of a special privilege or immunity to persons or classes
exempted from the new burden. Id. at 77. It concluded that a
Section 23 analysis applied regardless of which type of enactment is at issue.
In applying the test, the
Collins court determined that the agricultural employer exclusion
created the classification of agricultural employers and as distinguished from other employers.
It next concluded that there were characteristics of agricultural employers that were reasonably
related to the classification. Finally, applying the second prong of its announced
test, it explained within the classification of agricultural employers, the exemption from workers
compensation coverage for employees is uniformly applicable and equally available to all persons
who are or may become agricultural employers. Id. at 81. Thus,
the court focused on the distribution of the privilege within the privileged class.
Later cases also followed this analysis. See, e.g., Gambill v. State,
675 N.E.2d 668, 677 (Ind. 1996) (privilege of verdict equally available to all
persons who are found guilty but mentally ill at the time the person
commits the offense).
Collins, our supreme court decided Martin v. Richey, 711 N.E.2d 1273,
1279-82 (Ind. 1999), upon which Cornell relies and in which our supreme court
held that, as applied to the plaintiff, the medical malpractice statute of limitations
violated the Privileges and Immunities Clause because it was not uniformly applicable to
all medical malpractice victims. The court found that the statute precluded the
plaintiff from pursuing a claim against her doctor because she had a disease
which has a long latency period and which may not manifest symptoms until
several years after the asserted malpractice.
Martin, the plaintiff argued that the statute treated victims of medical malpractice
differently than other tort victims with regard to the manner in which the
two-year statute of limitations was construed and applied, and nothing warranted this differing
treatment. The court explained that IC 34-11-1-1, the general tort statute of
limitations, provides that a tort claim must be filed within two years from
the date the cause of action accrues, which occurs when the plaintiff knew
or, in the exercise of ordinary diligence, could have discovered that an injury
had been sustained as a result of the tortious act of another.
By comparison, courts have interpreted IC 34-18-7-1(b), the medical malpractice statute of limitations,
as beginning to run at the time of the act of malpractice rather
than from the date on which the malpractice is discovered. Thus, the
plaintiff asserted that while most tort victims could avail themselves of the more
liberal discovery rule, victims of medical malpractice were required to file a claim
within two years of the act of malpractice, regardless of whether they had
discovered the malpractice. The defendant argued that the relevant classification was not
malpractice victims and all other tort victims, but rather health care providers and
all other tortfeasors and that the statute was rationally related to the legitimate
legislative goal of maintaining access to medical treatment and controlling medical malpractice insurance
costs. The trial court granted the defendants motion for summary judgment, and
the Court of Appeals reversed, finding the statute unconstitutional.
On transfer, our supreme court reviewed its decision in
Collins. It reiterated
that a statute that either grants unequal privileges or imposes unequal burdens may
be the subject of a claim under Section 23 and laid out the
Collins test. The court noted that it had held in previous cases
that the disparate treatment accorded by the medical malpractice statute of limitations was
reasonably related to the inherent characteristics that distinguish the unequally treated classes and
declined to address the issue again. See, e.g., Johnson v. St. Vincents
Hospital, 273 Ind. 374, 379-80, 404 N.E.2d 585, 604 (1980).
The court then examined the second prong of the
Collins test. It
noted that the treatment was not uniformly applicable to all malpractice victims as
required under Collins, but concluded that it was not necessary to strike down
the statute to administer the justice required by the Indiana Constitution. It
explained that the second prong of the Collins test does not address only
the facial validity of the statute. Rather, where the language of the
relevant statutory provision creates the primary classifications, but does not by its terms
expressly create the assertedly unfair or disadvantaged subclassification, the question presented by the
second prong of Collins is whether the statute is unconstitutional as applied. The
court then concluded that under the circumstances, Section 23 does not permit an
application of the statute of limitations that would deprive the plaintiff of the
two-year statutory period for identifying and pursuing a claim against her doctor simply
because she had a disease which may not manifest symptoms until several years
after the initial diagnosis or misdiagnosis. It stated that consistent with Section
23, the plaintiff could not be foreclosed from bringing her malpractice suit when,
unlike many other medical malpractice plaintiffs, she could not reasonably be expected to
discover the asserted malpractice and resulting injury within the two-year period given the
nature of the asserted malpractice and of her medical condition. It therefore
concluded that under Section 23, the medical malpractice statute of limitations was unconstitutional
as applied to the plaintiff. Id. at 1282.
This holding was somewhat of a departure from
Collins in that the plaintiff
was not a member of the privileged class, that is, those tort victims
to whom the discovery rule had been applied.
Rather than be concerned
with the distribution of benefits in the privileged class, the court focused on
those individuals in the other class. The court explained that within that
class, a statute may in effect create an unfair or disadvantaged subclass within
the burdened class even when uniformly applicable. In such cases, the court
explained that the question presented by the second prong of Collins is whether
the statute is unconstitutional as applied. Id. at 1281. That is,
rather than focusing on the distribution of the privileges in the privileged class,
the court examined the distribution of the burden in the burdened class.
Furthermore, even though the burden appeared evenly distributed by the statutes terms, the
court found the Privileges and Immunities Clause violated because the burden was uneven
In this case, we initially conclude that the States personnel paid leave policy
does create a classification because it extends a privilege only to married employees,
creating the classes of married and unmarried employees. Thus, the policy must
Collins test to comply with the Privileges and Immunities Clause.
The States brief is filled with proffered justifications for the policy; many are
connected with promoting marriage and encouraging procreation, others are concerned with the difficulty
of determining who would qualify for benefits if same-sex domestic partners were included.
We find these justifications unpersuasive in light of the fact that, as
was discussed at oral argument, many of the largest employers in this country
and this state, including its two largest universities, now provide benefits to same-sex
domestic partners. Moreover, an examination of the policy itself undermines the States
assertion because it allows for leave time upon the death of a member
of an employees household, without regard for whether the two were legally related.
Instead, the policy exists to strengthen family relationships, and families are different today
than they once were. For instance, for many years, marriages between persons
of different races were also prohibited. Now such marriages are commonplace.
In the same vein, while society formerly regarded childrearing as exclusively the province
of couples consisting of one man and one woman, that too has now
See In re the Adoption of M.M.G.C., H.H.C., & K.E.A.C., 785
N.E.2d 267 (Ind. Ct. App. 2003) (two women may adopt same children).
[P]referential legislative treatment for a classification which was proper when enacted may later
cease to satisfy the requirements of Section 23 because of intervening changes in
social or economic conditions. Collins, 644 N.E.2d at 81. Curiously, however,
Cornell concedes that the policy is rationally related to marriage. See Appellants
Brief at 13 (Assuming that the funeral leave policy satisfies the first prong
of the Collins test . . .). Therefore, based on Cornells framing
of the issue, we are not faced with the close question of whether,
in this age of changing family relationships, the policys distinction based on marital
status is rational, but whether the privilege is equally available to all persons
Martin, Cornell argues that the States funeral leave policy is unconstitutional as
applied to her because she cannot reasonably be expected to bring herself within
the favored class of employees just as the plaintiff in Martin could not
reasonably be expected to bring herself within the favored class of malpractice victims.
Martin the court focused on the disfavored group because the statute
at issue there was a burden case -- that is, a right that
the tort victim previously had was barred by the medical malpractice statute of
limitations. By contrast, this case involves the granting of a privilege --
funeral leave. Thus, following our supreme courts direction in Collins, we focus
on the distribution of the privilege within the privileged class. As the
Collins court itself noted, this distinction between benefits and burdens is somewhat illusory,
however, because one persons benefit is necessarily anothers burden. Nonetheless, our reading
of Collins and Martin leaves us with no other means of reconciling the
shift in the focus of the analysis.
Accordingly, here, within the class of married employees (i.e., the privileged class), all
persons are treated the same. Cornell has not alleged that any members
of the class have been treated unequally. Her complaint, rather, is that
she has not been included in the class.
We recognize that IC
31-11-1-1 prevents her from attaining privileged class status by prohibiting her from marrying
her chosen partner even though other members of the non-privileged class may do
so. However, as in Collins, another privilege case, we do not inquire
as to whether an individual may join the privileged class, but whether the
privilege is distributed equally within it. Simply put, Cornell is not similarly
situated to other married employees in the privileged class. Thus, Cornells claim
fails and whether she or other individuals can make themselves part of the
favored class is irrelevant.
But for the legal act of marriage, we cannot discern how Cornells situation
is different from that of other state employees involved in committed relationships.
However, she concedes that a distinction based on marriage is rational. Accordingly,
the designated evidence does not demonstrate the existence of a genuine issue of
material fact that precludes summary judgment. The trial court did not err.
SULLIVAN, J., and SHARPNACK, J., concur.
An alternate privileged class might also be identified -- health
care providers, who gain the benefit of the stricter statute of limitations.
Our supreme court found that the classification met the first prong of the
Collins test because the extension of a privilege to health care providers furthered
the goal of reducing health care costs and addressing a crisis in the
health care system. See Johnson, 273 Ind. at 379-80, 404 N.E.2d at
589-90. However, in Martin, the court explained that the same classification scheme
could be explained in alternate ways as a classification scheme which distinguishes between
victims of medical malpractice and victims of other torts, or viewed from another
perspective, between health care providers and other tortfeasors . . . .
Martin, 711 N.E.2d at 1273. For purposes of its analysis of the
plaintiffs claim on the second prong of the Collins test, the court focused
on the malpractice victim/all other tort victims classification.
Using the classification identified under the first prong analysis, the plaintiff in Martin
was a member of neither class, and the classification appears to extend a
privilege, thus fitting squarely within Collins. However, under the alternate classification scheme
identified in Martin, she was clearly a member of the burdened class, and
the courts analysis proceeded from this premise.