                                                                  FILED
                                                             Jan 13 2017, 8:10 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Rodney Tyms-Bey,                                           January 13, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1603-CR-439
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Annie Christ-
Appellee-Plaintiff                                         Garcia, Judge
                                                           Trial Court Cause No.
                                                           49G24-1408-FD-38469



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017               Page 1 of 26
[1]   Rodney Tyms-Bey brings this interlocutory appeal of the trial court’s order

      granting the State’s motion to strike his notice of defense under Indiana’s

      Religious Freedom Restoration Act (RFRA).1 Our legislature has carved out a

      statutory exception to RFRA protections when the government’s imposition of

      a burden furthers a compelling interest and is the least restrictive means of

      furthering that interest. We find as a matter of law that the State’s compelling

      interest in a uniform and mandatory taxation system falls into the statutory

      exception such that RFRA affords no relief to Tyms-Bey. Therefore, we affirm

      and remand for further proceedings.


                                                      Facts     2




[2]   On June 24, 2013, the State notified Tyms-Bey that the Department of Revenue

      had determined that he had falsely reported his income and eligible tax

      deductions for the tax year 2012 and that he owes the State $1,042.82. Tyms-

      Bey responded with paperwork “claim[ing] he is a sovereign citizen and

      declar[ing] himself an estate.” Appellant’s App. Vol. II p. 16. Tyms-Bey did

      not subsequently amend his tax return or pay the balance due. On August 6,

      2014, the State charged Tyms-Bey with three counts of class D felony tax

      evasion.




      1
          Ind. Code ch. 34-13-9 et seq.
      2
       We held oral argument in this matter in Indianapolis on November 21, 2016. We thank counsel for both
      parties for their outstanding oral advocacy.

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                  Page 2 of 26
[3]   On July 1, 2015, the date Indiana’s RFRA statute took effect, Tyms-Bey filed a

      notice of defense of religious freedom. The State moved to strike the defense.

      On January 6, 2016, the trial court held a hearing on the motion to strike. At

      the hearing, Tyms-Bey refused to identify what religious practice or belief was

      burdened by the State’s actions and stated that he believed he was entitled to

      present his defense to a jury and would provide all evidence at trial. The State

      argued that a defense of religious freedom is unavailable as a defense to failure

      to pay taxes. The trial court granted the State’s motion to strike, and Tyms-Bey

      now brings this interlocutory appeal.


                                    Discussion and Decision
[4]   Matters of statutory interpretation present a pure question of law to which we

      apply a de novo standard of review. E.g., Study v. State, 24 N.E.3d 947, 950

      (Ind. 2015).


[5]   Indiana Code section 34-13-9-8, the heart of Indiana’s RFRA, provides as

      follows:


              (a)      Except as provided in subsection (b), a governmental
                       entity may not substantially burden a person’s exercise of
                       religion, even if the burden results from a rule of general
                       applicability.


              (b)      A governmental entity may substantially burden a person’s
                       exercise of religion only if the governmental entity
                       demonstrates that application of the burden to the person:




      Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017     Page 3 of 26
                       (1)      is in furtherance of a compelling governmental
                                interest; and


                       (2)      is the least restrictive means of furthering that
                                compelling governmental interest.


      Initially, we note that the State concedes that RFRA applies to criminal

      proceedings. Appellee’s Br. p. 14. And indeed, it plainly does: “This chapter

      applies to all governmental entity statutes, ordinances, resolutions, executive or

      administrative orders, regulations, customs, and usages, including the

      implementation or application thereof, regardless of whether they were enacted,

      adopted, or initiated before, on, or after July 1, 2015.” I.C. § 34-13-9-1.

      Moreover, a person “may assert the violation or impending violation [of the

      chapter] as a claim or defense in a judicial or administrative proceeding . . . .”

      I.C. § 34-13-9-9. There are no general exemptions relevant to criminal

      prosecutions to be found in the text of RFRA. Therefore, as a general matter,

      we hold that defendants may raise a RFRA claim in a criminal prosecution.


[6]   Tyms-Bey invites us to address a number of broad issues surrounding RFRA

      and its application to criminal cases. But this case can be disposed of on much

      narrower grounds. We will assume solely for argument’s sake that Tyms-Bey

      pleaded a RFRA defense properly and met his burden of showing that this

      prosecution substantially burdens his exercise of religion. Having made those

      assumptions, we need decide only whether—as a matter of law—the State’s

      enforcement of its income tax laws is in furtherance of a compelling interest and

      is the least restrictive means of furthering that compelling interest. In other

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017    Page 4 of 26
      words, we must determine whether, viewing the situation in a light most

      favorable to a defendant facing criminal income tax penalties, that defendant

      could ever raise a successful RFRA defense. We hold that he could not.


[7]   The United States Supreme Court has recognized the compelling interest in the

      collection of taxes and the absolute necessity of uniform and mandatory

      participation in the tax system. United States v. Lee, 455 U.S. 252, 258-61 (1982)

      (holding that exception to social security tax sought by Amish employer would

      undermine the fiscal vitality of the system that necessitates uniform application

      to all employers); see also Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680,

      700 (1989) (holding that the reasoning of Lee applies equally to federal income

      tax). The Lee Court recognized that the nature of tax systems is such that they

      “must be uniformly applicable to all, except as Congress provides explicitly

      otherwise.” 455 U.S. at 261. More specifically, “[t]he tax system could not

      function if denominations were allowed to challenge the tax system because tax

      payments were spent in a manner that violates their religious belief.” Id. at 260.

      As a result, the Court held that “[b]ecause the broad public interest in

      maintaining a sound tax system is of such a high order, religious belief in

      conflict with the payment of taxes affords no basis for resisting the tax.” Id.3




      3
        Lee was not decided in the context of the federal RFRA, but multiple federal courts have applied the same
      reasoning to reach the same conclusion under that statute. E.g., United States v. Indianapolis Baptist Temple,
      224 F.3d 627, 730 (7th Cir. 2000) (holding church not entitled to exemption from federal tax laws because
      “the difficulties inherent in administering a tax system riddled with judicial exceptions for religious
      employers make a uniformly applicable tax system the least restrictive means of furthering that interest”);
      Adams v. Commissioner of Internal Revenue, 170 F.3d 173, 179 (3rd Cir. 1999) (observing that the Lee holding

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                         Page 5 of 26
[8]   In Indiana, our General Assembly has carved out a statutory exception to the

      protections of RFRA. Specifically, the government may substantially burden a

      person’s exercise of religion if the government’s imposition of the burden furthers

      a compelling governmental interest and is the least restrictive means of furthering

      that interest. I.C. § 34-13-9-8(b). As noted above, it has already been held, in a

      variety of contexts by a variety of courts, that the uniform collection of income

      tax satisfies both of these requirements.


[9]   At oral argument, counsel for Tyms-Bey argued that the imposition of a criminal

      penalty to someone who has evaded their income tax payment is not the least

      restrictive means to further the State’s compelling interest. But the relevant

      “means,” for purposes of RFRA, is the “burden” the party hopes to avoid, not

      the sanction imposed for ignoring that burden. Here, the “burden” that Tyms-

      Bey is seeking to avoid—that burden that he claims violates his religious

      freedom—is the uniform and mandatory obligation to pay taxes (or the lack of a

      religious exemption from that obligation), not the specific enforcement

      mechanism chosen by the state. See, e.g., Adams, 170 F.3d at 179 (framing the

      “compelling interest” as the collection of taxes and framing the “means” of

      furthering that interest as mandatory participation in the tax system—that is, a

      system with no (or limited) exceptions).




      has turned the “least restrictive means inquiry into a rhetorical question” when it comes to collection of
      income tax, which must be done in a uniform, mandatory manner).



      Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                         Page 6 of 26
[10]   We find United States v. Christie, 825 F.3d 1048 (9th Cir. 2016), particularly

       instructive.      In responding to a criminal defendant’s RFRA argument that

       prosecution under a particular statute was not the least restrictive means of

       furthering the relevant governmental interest, the Christie Court explicitly

       disagreed with that framing of the issue:

               The Christies next assert that a less restrictive alternative would
               have been for the government to bring these prosecutions under a
               less punitive provision of the [Controlled Substances Act], ideally
               a provision that would not have triggered statutory mandatory
               minimum penalties. The Christies cite nothing for the
               proposition that a (potentially) less punitive charging decision
               qualifies as a “less restrictive” alternative.


               We find such lack of authority unsurprising, for at least two
               reasons. First, when the government exposed the Christies to the
               threat of a mandatory minimum, it did not restrict their religion
               to a greater degree than if the government had forgone such
               charges, for either prosecution would trigger an outright ban on
               their ability to use and to distribute cannabis. Such alternative
               prosecutions are equally restrictive of religion, even if they might
               not be equally punitive. Cf. [Burwell v. Hobby Lobby Stores, Inc., 134
               S.Ct. 2751, 2782 n.40 (2014)] (explaining that to qualify as a less
               restrictive means, a proposed alternative must “accommodate[ ]
               the religious beliefs asserted in these cases”). Second, given the
               broad array of charges prosecutors can choose to bring or not to
               bring in any given case, recognizing the Christies’ theory would
               plunge courts far too deep into the business of reviewing the most
               basic exercises of prosecutorial discretion.


       Id. at 1061-62 (emphases original); see also U.S. v. Wilgus, 638 F.3d 1272, 1288-

       95 (10th Cir. 2011) (analyzing whether, under RFRA, banning the possession of


       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 7 of 26
       eagle feathers, not whether criminal enforcement of that ban, is the least

       restrictive means of furthering the compelling governmental interest in

       protecting eagles).


[11]   In other words, in the case at hand, regardless of the State’s chosen enforcement

       mechanism, the “burden” that Tyms-Bey wants to avoid is the same—the

       requirement that he pay taxes. The fact that the State has both civil and criminal

       enforcement options is beside the point. We find that the uniform and mandatory

       tax system as a whole, which incorporates the criminal penalties at issue here, is

       the least restrictive means of furthering the government’s compelling interest in

       collecting revenue.


[12]   We adopt the analysis of the Lee Court and hold as a matter of law that, in the

       context of Indiana’s RFRA, there is a compelling governmental interest in

       collecting income tax revenue. Moreover, we hold as a matter of law that the

       least restrictive means of furthering that compelling interest is uniform and

       mandatory participation in the income tax system. There are no facts that Tyms-

       Bey could proffer with respect to his exercise of religion that would not be

       overcome by the State’s compelling interest and the means used by the State in

       furthering that interest. In other words, as a matter of law, Indiana’s RFRA offers




       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 8 of 26
       no protection for the allegedly criminal nonpayment of income taxes by Tyms-

       Bey, and the trial court did not err by denying his request to assert the defense. 4


[13]   The judgment of the trial court is affirmed and remanded for further proceedings.


       Vaidik, C.J., concurs.


       Najam, J., dissents with a separate opinion.




       4
         We leave for another day and another case the broader arguments and procedural questions raised by
       Tyms-Bey about the application of RFRA to criminal prosecutions, including those concerning the proper
       role of the trial court judge, both before and during trial, under Indiana Code section 34-13-9-10.

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                   Page 9 of 26
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Rodney Tyms-Bey,                                           Court of Appeals Case No.
                                                                  49A05-1603-CR-439
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Najam, Judge, dissenting.


[14]   I respectfully dissent. Tyms-Bey’s alleged RFRA defense may ultimately not

       succeed, but he is entitled to his day in court. The majority’s holding that, in

       effect, Tyms-Bey has not stated a claim under RFRA and that he is not even

       entitled to present evidence in support of his alleged defense is too quick to

       dispose of Tyms-Bey’s claim and denies him the particularized adjudication

       that is expressly afforded to him by Indiana’s RFRA. Moreover, in enacting

       Indiana’s RFRA, our legislature explicitly reserved to itself, and withheld from

       our judiciary, the right to declare categorical exemptions from RFRA’s


       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017             Page 10 of 26
       application. The majority’s holding disregards that command and categorically

       removes tax-based actions from RFRA’s application. The majority’s analysis

       further misunderstands the least restrictive means test under RFRA and denies

       Tyms-Bey his right under Article 1, Section 19 of the Indiana Constitution.

       And the majority’s selective use of federal authority fails to consider federal

       cases in which religious exemptions from facially neutral tax laws have been

       permitted, and, in any event, the authority relied on by the majority is readily

       distinguishable.


                                                      Overview

[15]   Indiana’s RFRA represents a new paradigm in Indiana law concerning

       exercise-of-religion claims and defenses. Federal and state legislatures have

       enacted RFRA laws following the United States Supreme Court’s decision in

       Employment Division v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that

       the Free Exercise Clause of the First Amendment “does not require judges to

       engage in a case-by-case assessment of the religious burdens imposed by facially

       constitutional laws.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

       546 U.S. 418, 424 (2006) (discussing Smith, 494 U.S. at 883-90). By rejecting

       Smith and enacting Indiana’s RFRA, the General Assembly now requires

       claims of religious exemptions from laws of general applicability to be

       determined on a case-by-case basis using a strict scrutiny analysis. Ind. Code §

       34-13-9-8 (2016).


[16]   But, contrary to the majority’s assessment, Indiana’s new religious-freedom

       paradigm goes further than merely reinstating pre-Smith free exercise cases. As
       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 11 of 26
       with its identically worded federal counterpart, by its plain terms Indiana’s

       RFRA is “an obvious effort” by the General Assembly “to effect a complete

       separation from First Amendment case law.” Burwell v. Hobby Lobby Stores, Inc.,

       134 S. Ct. 2751, 2761-62 (2014). For example, Indiana’s RFRA, like the federal

       version, defines “exercise of religion” more broadly than First Amendment case

       law defines it, and our RFRA also provides a broader definition of the

       “person[s]” who may bring RFRA claims or defenses than does either First

       Amendment case law or the federal RFRA. See id. at 2772, 2775; see also I.C. §

       34-13-9-5 (defining “exercise of religion”); I.C. § 34-13-9-7 (defining “person”).


[17]   And there is good reason for the General Assembly to have sought that

       complete separation. It is widely recognized that the “least restrictive means

       requirement” under RFRA “was not used in the pre-Smith jurisprudence.” City

       of Boerne v. Flores, 521 U.S. 507, 535 (1997). Rather, the pre-Smith case law, in

       which the Supreme Court routinely sided with the government, 5 “indicates that

       [the Court] was not applying a genuine ‘compelling’ interest test.” James E.

       Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment,

       78 Va. L. Rev. 1407, 1413-15 (1992) (specifically identifying United States v. Lee

       as one such decision); see also United States v. Lee, 455 U.S. 252, 262 (1982)

       (Stevens, J., concurring in judgment) (concluding that the government’s




       5
         In the seventeen cases between 1963 and 1990 in which the United States Supreme Court considered
       religious exemptions under the strict scrutiny test, in thirteen the Court sided with the government. James E.
       Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1413-14
       (1992).

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                       Page 12 of 26
       argument in Lee did not pass strict scrutiny and that the majority’s opinion was

       better understood using the test the Court later adopted in Smith).6 Thus,

       RFRA is unmistakably “broader” than that case law. City of Boerne, 521 U.S. at

       535. The Court’s decision in Smith was simply the last straw, which caused

       legislatures throughout the nation to enact statutory protections for claimants of

       religious exemptions.


[18]   Rather than following Burwell, the majority instead concludes that Lee, a pre-

       Smith case, and its progeny more accurately reflect our legislature’s intent when

       it enacted RFRA. I cannot agree and must conclude that the majority’s

       assessment that Indiana’s RFRA adds nothing to pre-Smith jurisprudence is

       contrary to RFRA. As the Burwell Court recognized, Lee is “a free exercise, not

       a RFRA, case.” Burwell, 134 S. Ct. at 2784. Indeed, the Burwell Court

       expressly concluded that the reasoning in Lee is “squarely inconsistent with the

       plain meaning of RFRA.” Id. at 2784 n.43 (discussing Lee, 455 U.S. at 261).

       Our legislature enacted RFRA less than nine months after the Court’s opinion

       in Burwell, which was the impetus for our legislature’s decision. Moreover,

       Indiana’s RFRA contains the exact same language that the Court in Burwell,

       considering the federal RFRA, held to provide broader protection to the




       6
         Indeed, the Smith Court quoted Justice Stevens’ concurring opinion in Lee with approval. Smith, 494 U.S.
       at 879.

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                    Page 13 of 26
       exercise of religion than Lee and its progeny, and Indiana’s RFRA expressly

       codifies and expands upon the holding in Burwell.7 See I.C. §§ 34-13-9-5, -7.


[19]   Accordingly, I would hold that Burwell, not Lee, best reflects the intent of our

       legislature in enacting RFRA. And this is significant here because, as Burwell

       explains, RFRA demands a fact-sensitive, “particularized” assessment of the

       claimed religious exemption, while Lee does not. Burwell, 134 S. Ct. at 2779-80,

       2783-85.




       7
         Indeed, I agree with the majority and the State’s concession that, by its plain terms, Indiana’s RFRA may
       be raised as a defense to any criminal prosecution, which includes the State’s prosecution of Tyms-Bey for
       tax evasion. See Appellee’s Br. at 14. In this respect, Indiana’s RFRA is broader than several other states’
       RFRA laws, which have numerous, various exemptions from coverage. For example, Florida prohibits its
       RFRA from being used as a defense to a drug-related criminal allegation. Fla. Stat. Ann. § 761.05(4) (West
       2016). Indiana’s RFRA, by comparison, only exempts certain allegations of discrimination and certain
       claims against private employers from its coverage, I.C. §§ 34-13-9-0.7, -11, and it applies in all other
       circumstances, see I.C. §§ 34-13-9-1, -2.
       The State also notes that “RFRA is not a defense to criminal conduct only and . . . can be brought proactively
       for an actual or likely burden on a person’s religious exercise and to obtain declaratory or injunctive relief to
       prevent that burden . . . .” Appellee’s Br. at 10; see I.C. § 34-13-9-9. Taken in conjunction with its concession
       that RFRA applies to criminal proceedings, it is clear that the State concedes that Hoosiers need not
       proactively assert, in a declaratory judgment proceeding or otherwise, their rights to religious exercise to be
       able to assert those rights as a defense in a criminal proceeding. By comparison, other states with RFRA
       laws do require certain procedures to be followed before an individual may later raise RFRA as a defense.
       E.g., Tex. Civ. Prac. & Remedies Code Ann. § 110.006 (West 2015).
       Taken together, and especially in light of their more restrictive counterparts in foreign jurisdictions, those
       provisions evince our legislature’s intent to make RFRA rights broadly available absent explicit direction
       from the General Assembly otherwise. Indeed, those provisions of Indiana’s RFRA, along with the
       expansive definition of “person” in Indiana Code Section 34-13-9-7 and the express permission under
       Indiana Code Section 34-13-9-9 to invoke RFRA in proceedings that involve only private parties, make
       Indiana’s RFRA more broadly available than the federal RFRA. Again, in Burwell the Court held that Lee
       was not controlling law under the federal RFRA because the federal RFRA provided greater protection than
       the pre-Smith free exercise cases. Burwell, 134 S. Ct. at 2784; see City of Boerne, 521 U.S. at 535. If the federal
       RFRA provides greater protection than the pre-Smith case law, that is only all the more true for Indiana’s
       RFRA.

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                            Page 14 of 26
[20]   With that background in mind, I turn to five reasons for my disagreement with

       the majority on the limited facts of this case.


                               1. Indiana Code Sections 34-13-9-1 and -2

[21]   First, by its plain terms Indiana’s RFRA expressly permits all litigants in

       Indiana in any cause of action, other than actions based on certain claims of

       discrimination or claims against private employers, to assert their exercise of

       religion as a claim or defense against compliance with a statutory mandate.

       I.C. §§ 34-13-9-0.7 to -2, -11. Specifically, Indiana Code Section 34-13-9-1

       unambiguously states that RFRA “applies to all . . . statutes,” and Section 34-

       13-9-2 just as clearly states that “[a] . . . statute . . . may not be construed to be exempt

       from the application of this chapter unless a state statute expressly exempts the

       statute . . . .” (Emphasis added.)


[22]   In other words, the General Assembly expressly reserved to itself the right to

       exempt statutes from RFRA’s application and expressly commanded the

       judiciary to not “construe[]” statutes “to be exempt from th[at] application.” Id.

       Those commands are consistent with the case-by-case, particularized

       adjudications the Burwell Court described as fundamental to RFRA. See 134 S.

       Ct. at 2779-80. And there is no state statute that expressly exempts tax evasion

       prosecutions from the application of RFRA.


[23]   Nonetheless, the majority construes tax evasion prosecutions as exempt from

       RFRA defenses and, in doing so, contravenes those express instructions. See

       I.C. § 34-13-9-2. As the Indiana Supreme Court has made clear, to discern our

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017          Page 15 of 26
       legislature’s intent “we look first to the statutory language and give effect to the

       plain and ordinary meaning of statutory terms. Where the language is clear and

       unambiguous, there is no room for judicial construction.” Jackson v. State, 50

       N.E.3d 767, 772 (Ind. 2016) (citations and quotation marks omitted). Indiana

       Code Sections 34-13-9-1 and -2 leave no room to look elsewhere for interpretive

       authority. The General Assembly has unambiguously declared that the

       judiciary is not to exempt RFRA claims and defenses from any action and that

       such exemptions lie solely within the prerogative of the General Assembly. If

       we disregard that plain language, “the General Assembly might fairly ask if

       we’re listening.” Dye v. State, 972 N.E.2d 853, 862 (Ind. 2012) (Massa, J.,

       dissenting). As a matter of law under RFRA, Tyms-Bey is entitled to present

       facts in support of his alleged RFRA defense to the State’s criminal charges

       against him, and the trial court erred when it preemptively struck his alleged

       defense.


                                      2. Least Restrictive Means Test

[24]   Second, the majority’s analysis misunderstands the least restrictive means test

       as used in RFRA and instead erroneously applies the more permissive

       standards from pre-Smith case law. See City of Boerne, 521 U.S. at 535; Ryan,

       supra, 78 Va. L. Rev. at 1413-15. As explained by the Court in Burwell, the least

       restrictive means test under RFRA is “exceptionally demanding” and requires

       the State to show that “it lacks other means of achieving its desired goal

       without imposing a substantial burden on the exercise of religion by the

       objecting part[y] . . . .” 134 S. Ct. at 2780. This test requires the State to

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 16 of 26
       demonstrate that the “application of the burden to the person” is the least

       restrictive means of furthering the State’s compelling interest. I.C. § 34-13-9-

       8(b) (emphasis added); see Burwell, 134 S. Ct. at 2780 (quoting 42 U.S.C. §

       2000bb-1(a), (b)). And considering “the burden to the person” requires a

       “focused inquiry” that “look[s] beyond broadly formulated interests

       and . . . scrutinize[s] the asserted harm of granting specific exemptions to

       particular religious claimants . . . .” Burwell, 134 S. Ct. at 2779 (quotation

       marks and brackets omitted).


[25]   Here, the absence of facts from either Tyms-Bey or the State is fatal to the

       majority’s argument.8 Rather than rely on any specific facts, the majority

       instead relies exclusively on Lee and its progeny, which concluded under the

       Free Exercise Clause that the government’s need in uniform and mandatory

       participation in the tax scheme necessarily overcomes any individualized

       concerns. Lee, 455 U.S. at 258-61. But this is not a free exercise case.


[26]   Rather, under RFRA, the State cannot rely on such “broadly formulated

       interests” but instead must demonstrate how granting Tyms-Bey his asserted

       exemption would prevent the State from “achieving its desired goal.” See




       8
         In the State’s probable cause affidavit in support of the tax evasion charges, the State asserted that Tyms-
       Bey “claimed he is a sovereign citizen,” “declared himself an estate,” and “den[ied] . . . liability of the tax
       due.” Appellant’s App. Vol. II at 16. But there is no evidence that Tyms-Bey intends to rely on those same
       assertions as the basis for his RFRA defense. Indeed, in its motion to strike Tyms-Bey’s RFRA defense, the
       State acknowledged that he “has not yet identified what religion he belongs to, how the tenets of that religion
       relate to Indiana’s income tax regime[,] or how that tax negatively impacts the practice of his religion.” Id. at
       36.

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                         Page 17 of 26
Burwell, 134 S. Ct. at 2779-80. And without a factual basis in the record for

Tyms-Bey’s asserted exemption, the State cannot satisfy that test. Indeed,

religious exemptions already exist in the tax code. If Tyms-Bey’s RFRA

defense is that he was wrongly denied such exemptions, the State would be

hard pressed under the least restrictive means test to demonstrate how granting

him an already established exemption would prevent the State from achieving

its goals. See, e.g., Lee, 455 U.S. at 262 (Stevens, J., concurring in judgment)

(“As a matter of administration it would be a relatively simple matter to

extend” existing religion-based tax exemptions “to the taxes involved in this

case”); see also Burwell, 134 S. Ct. at 2780-82 (holding under the federal RFRA

that a government-established exception for religious nonprofit businesses

would “serve[ the government’s] stated interests equally well” if extended to

some religious for-profit businesses). Accordingly, I cannot say, as a matter of

law, that the State has met the “exceptionally demanding” and “particularized”

strict scrutiny analysis required under RFRA.9 See Burwell, 134 S. Ct. at 2779-

80.




9
  At oral argument, Tyms-Bey’s counsel asserted that the least restrictive means test requires the State to
pursue civil enforcement mechanisms before it may enforce tax delinquencies through criminal proceedings.
Other jurisdictions have agreed and held that, where the law at issue provides for both civil and criminal
enforcement mechanisms, to satisfy the least restrictive means test the governmental entity must demonstrate
that the criminal option is the least restrictive option. See, e.g., State v. J.P., 907 So. 2d 1101, 1119 (Fla. 2004)
(holding that “the imposition of criminal sanctions” for curfew violations is not the least restrictive means to
further local governmental entities’ compelling interests because “[t]he same goals could be achieved by
imposing a civil penalty”); Commonwealth v. Weston W., 913 N.E.2d 832, 846 (Mass. 2009) (holding that the
Commonwealth “failed to meet its burden” under the least restrictive means test “to show that the use of
criminal penalties provides an increased benefit over . . . civil enforcement mechanisms . . . sufficient to offset
their greater intrusion”). Here, in its probable cause affidavit the State asserted that the Department of
Revenue mailed Tyms-Bey “a notice . . . that he owed . . . taxes,” but there is no evidence of any attempts at

Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                            Page 18 of 26
                                               3. Article 1, Section 19

[27]   Third, the majority’s preemptive strike of Tyms-Bey’s RFRA defense denies

       him his right under Article 1, Section 19 to a jury trial on an affirmative

       defense. Although RFRA generally presents a question of law, see I.C. § 34-13-

       9-10,10 in criminal cases, such as here, Article 1, Section 19 of the Indiana

       Constitution requires that a defendant who asserts RFRA as an affirmative

       defense and has not waived his jury trial right be permitted to present evidence

       of that defense to a jury.


[28]   As we have explained:


                The constitution is emphatic that the right of the jury to
                determine the law as well as the facts applies “[i]n all criminal
                cases whatever.” Ind. Const. art. 1, § 19 (emphasis added). “All”
                is defined as “the whole extent or duration of . . . each and every
                one of.” Webster’s Third New International Dictionary 54
                (1976). “Whatever” is defined as “no matter what . . . of any
                kind at all.” Id. at 2600. We believe that the terms “all” and
                “whatever” mean what they say. In interpreting the Indiana
                Constitution, our analysis is controlled by the text itself. Price v.
                State, 622 N.E.2d 954, 957 (Ind. 1993). Article 1, Section 19
                does not speak of verdicts but of “criminal cases.”




       collection by the State prior to the filing of the instant criminal charges or any evidence that such attempts
       would have been ineffective. Appellant’s App. Vol. II at 15-16.
       10
           Indiana Code Section 34-13-9-10 states that a RFRA determination is to be made by “a court or other
       tribunal in which a violation of this chapter is asserted . . . .” That statute further provides that, if a RFRA
       violation is found, “the court or other tribunal shall allow a defense . . . and shall grant appropriate
       relief . . . .” I.C. § 34-13-9-10. That language suggests that the viability of a RFRA claim or defense generally
       is a question of law for the court or other tribunal “in which” the claim or defense is asserted and from which
       the claiming party can obtain “appropriate relief.” See id.

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                          Page 19 of 26
       Seay v. State, 673 N.E.2d 475, 480 (Ind. Ct. App. 1996), adopted, 698 N.E.2d

       732, 733 (Ind. 1998). The General Assembly, having expressly permitted

       RFRA to be raised as an affirmative defense in criminal actions, cannot then

       deny the right to submit that defense to a jury under Article 1, Section 19. Id. at

       479.


[29]   And, despite the State’s argument to the contrary on appeal, there is no serious

       question whether RFRA is an affirmative defense for criminal defendants. A

       criminal defendant who asserts RFRA as a defense contends, in effect, that any

       evidence the State may present of his alleged criminal conduct is a legal nullity

       if the defendant demonstrates that the statute imposes a substantial burden on

       his exercise of religion and the State fails to rebut the defendant’s showing.

       That is plainly an affirmative defense. See, e.g., Melendez v. State, 511 N.E.2d

       454, 457 (Ind. 1987). Further, it is well established that the defendant bears the

       initial burden of proof at trial to demonstrate his affirmative defense by a

       preponderance of the evidence. Lacy v. State, 58 N.E.3d 944, 948 (Ind. Ct. App.

       2016). The burden then shifts to the State to negate the defense beyond a

       reasonable doubt. Id.


[30]   Indiana Code Section 34-13-9-10 can be harmonized with Article 1, Section 19.

       Specifically, if a criminal defendant who has asserted RFRA as an affirmative

       defense to the jury fails to present evidence in the record at trial to support his

       burden on that defense, the trial court may, in its discretion, decline to give a

       jury instruction on the defense. E.g., Cavens v. Zaberdac, 849 N.E.2d 526, 533

       (Ind. 2006). In this manner, RFRA secures both the trial court’s role as a

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 20 of 26
       gatekeeper under Section 34-13-9-10 before the jury and the criminal

       defendant’s jury trial right under Article 1, Section 19.


[31]   Moreover, Tyms-Bey was not required to present evidence in support of his

       affirmative defense to the trial court in a pretrial hearing on the State’s motion

       to strike. Tyms-Bey has no more pretrial burden of proof than any other

       criminal defendant who asserts an affirmative defense, even if a pretrial notice

       of that affirmative defense is required, which such notice is not required for

       RFRA defenses.11 See, e.g., Griffin v. State, 664 N.E.2d 373, 375-76 (Ind. Ct.

       App. 1996). As a courtesy, Tyms-Bey notified the State that he would assert a

       RFRA defense at trial before a jury. That was sufficient, and to hold otherwise

       simply discourages pretrial notices.


[32]   The majority has, in effect, declared that Tyms-Bey has failed to state a claim

       under RFRA. In so holding, the majority has denied Tyms-Bey his

       constitutional right to present evidence of his RFRA affirmative defense to a

       jury. The trial court should have denied the State’s motion to strike under

       Indiana Trial Rule 12(F).




       11
          Nothing in our rules of criminal or trial procedure prohibit the State from seeking discovery regarding any
       potential RFRA defenses to avoid a trial-day surprise.

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                       Page 21 of 26
                                    4. First Amendment Precedent
                                Demonstrates the Need for a Factual Basis

[33]   Fourth, the majority’s reliance on selected federal cases in lieu of the plain text

       of Indiana’s RFRA and Article 1, Section 19 is misplaced. Indeed, Indiana’s

       RFRA aside, the United States Supreme Court has repeatedly recognized that

       some facially neutral tax laws do not withstand strict scrutiny when applied to

       particular individuals. For example, in Murdock v. Pennsylvania, the Court held

       that an otherwise nondiscriminatory tax that, as applied, required “religious

       colporteurs to pay a license tax as a condition to the pursuit of their activities”

       did not pass strict scrutiny. 319 U.S. 105, 110, 63 S. Ct. 870, 873 (1943).

       Likewise, in Follett v. Town of McCormick, the Court held that persons exercising

       their religion “may be subject to general taxation” but that “does not mean that

       they can be required to pay a tax for the exercise of that which the First

       Amendment has made a high constitutional privilege.” 321 U.S. 573, 577-78

       (1944).


[34]   Similarly, in Sherbert v. Verner12 the Supreme Court explained as follows:


                In Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d
                1460, we . . . struck down a condition which limited the
                availability of a tax exemption to those members of the exempted
                class who affirmed their loyalty to the state government granting
                the exemption. While the State was surely under no obligation
                to afford such an exemption, we held that the imposition of such



       12
          The federal RFRA expressly identifies Sherbert as applying an analysis consistent with that statute’s
       intended protection. 42 U.S.C. § 2000bb(b)(1).

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017                        Page 22 of 26
               a condition upon even a gratuitous benefit inevitably deterred or
               discouraged the exercise of First Amendment rights of
               expression . . . . ‘To deny an exemption to claimants who engage
               in certain forms of speech is in effect to penalize them for such
               speech.’ Id., 357 U.S., at 518, 78 S. Ct., at 1338. Likewise, to
               condition the availability of benefits upon this appellant’s willingness to
               violate a cardinal principle of her religious faith effectively penalizes the
               free exercise of her constitutional liberties.


       374 U.S. 398, 405-06 (1963) (emphasis added). In other words, in Sherbert the

       Supreme Court recognized that the government cannot condition tax benefits

       on a claimant’s willingness to violate his faith.


[35]   Because Tyms-Bey has not yet had the opportunity to present facts in support of

       his defense under RFRA, we cannot say that his defense is “insufficient” under

       Indiana Trial Rule 12(F) and must fail as a matter of law. We do not yet know

       the basis for Tyms-Bey’s claimed exemption. We know the State has alleged a

       certain sum of unpaid taxes based on allegedly unreported income, allegedly

       falsely reported rental addresses, and an allegedly falsely claimed credit. But we

       do not know if, as in Murdock and Follett, Tyms-Bey’s religious defense to those

       allegations is aimed particularly at specific provisions of the code as applied to

       him. Nor do we know if, as in Sherbert and Speiser, he believes that the State has

       denied him an exemption or benefit based on his willingness to violate a tenet

       of his faith. Simply, without a factual basis we cannot say that Tyms-Bey has

       no defense under RFRA.




       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017        Page 23 of 26
                                   5. United States v. Lee Is Readily
                               Distinguishable, Even If It Were To Apply

[36]   Fifth, and finally, Lee and its progeny, even if they were to apply under

       Indiana’s RFRA, are not on all fours with Tyms-Bey’s case. Rather, Lee is

       readily distinguishable from Tyms-Bey’s case because, in Lee, there was a

       factual basis established for the claimant’s religious objection. In particular, the

       record in Lee makes clear that the objector, in his role as an employer and

       business owner, failed to withhold Social Security taxes from his employees’

       paychecks and likewise failed to pay the employer’s share of those taxes. He

       argued that his actions were justified because the entirety of the Social Security

       system was contrary to his religious beliefs. The Supreme Court rejected that

       argument as a valid basis for a First Amendment religious exemption. Lee, 455

       U.S. at 261.


[37]   But, again, here we have no idea what the factual basis for Tyms-Bey’s RFRA

       defense may be. And without any evidence we cannot assume the basis for that

       defense. Accordingly, for that additional reason, the majority’s reliance on Lee

       is misplaced.


                                                     Conclusion

[38]   In sum, I respectfully dissent. The majority’s holding that, “as a matter of law,

       Indiana’s RFRA offers no protection for the allegedly criminal nonpayment of

       income taxes,” slip op. at 8-9, is erroneously premised on Lee rather than

       Burwell and, as a result, undermines the broad and particularized protection our

       legislature intended RFRA to have. The majority’s analysis is contrary to the

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 24 of 26
       plain language of Indiana’s RFRA; it does not properly define or apply the least

       restrictive means test implemented by RFRA; and it denies Tyms-Bey his jury

       trial right under Article 1, Section 19. Further, the majority’s reliance on

       selected federal cases is misplaced. The majority’s selection of authorities does

       not account for cases in which particularized religious exemptions from facially

       neutral tax laws have been permitted. Neither is the majority’s reliance on Lee

       persuasive when, unlike Lee, here there is no factual basis in the record for

       Tyms-Bey’s asserted defense.


[39]   The majority’s opinion that there are no facts that Tyms-Bey could offer to

       support his defense is contrary to RFRA’s mandate and is “a pre-emptive strike

       on a matter that deserves further record development.” Citizens Action Coalition

       v. Koch, 51 N.E.3d 236, 243 (Ind. 2016) (Rucker, J., concurring in part and

       dissenting in part). Without question, the majority is concerned, as were the

       dissenters in Burwell, that RFRA will wreck “havoc” on judicial proceedings

       and be a “radical” departure from the status quo. Burwell, 134 S. Ct. at 2787,

       2805 (Ginsburg, J., dissenting). But “[t]he wisdom of [our legislature’s]

       judgment on this matter is not our concern. Our responsibility is to enforce

       RFRA as written, and under the standard that RFRA prescribes . . . .” Id. at

       2785 (majority opinion). And it is certainly not the judiciary’s role to construe

       actions as exempt from RFRA when our legislature has expressly reserved that

       right to itself. See I.C. § 34-13-9-2.


[40]   At the end of the day, Tyms-Bey’s exercise-of-religion defense may not prevail.

       But we cannot say as a matter of law that Tyms-Bey can prove no set of facts in

       Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 25 of 26
support of his RFRA defense that would entitle him to relief. The issue is not

whether a RFRA claimant will ultimately prevail but whether he is entitled to

offer evidence to support his claim. In other words, Tyms-Bey is entitled to his

day in court and to the same due process as any other criminal defendant,

including his right to present his affirmative defense to a jury. Otherwise,

RFRA is for naught and offers no more protection to the exercise of religion

than does the First Amendment. Accordingly, I would reverse the trial court’s

judgment and remand for further proceedings that comply with the

unmistakable commands of RFRA, with Article 1, Section 19, and with the

same criminal trial procedure we follow when, as here, the defendant asserts an

affirmative defense.




Court of Appeals of Indiana | Opinion 49A05-1603-CR-439 | January 13, 2017   Page 26 of 26
