                                                                        FILED
                                                                   Feb 28 2018, 7:38 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William Bock, III                                          Curtis T. Hill, Jr.
      Christopher H. Park                                        Attorney General of Indiana
      Kroger, Gardis & Regas, LLP                                Frances H. Barrow
      Indianapolis, Indiana                                      Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Charlynn G. Hulse,                                         February 28, 2018
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A05-1611-PL-2654
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Indiana State Fair Board,                                  The Honorable Gary L. Miller,
      Appellee-Defendant.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49D03-1511-PL-37702



      Pyle, Judge.


                                        Statement of the Case
[1]   Charlynn G. Hulse (“Hulse”) appeals the trial court’s grant of summary

      judgment in favor of the Indiana State Fair Board (“Fair Board”) on her

      complaint for declaratory and injunctive relief. She argues that the trial court


      Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018             Page 1 of 12
      erred when it granted summary judgment in favor of the Fair Board because a

      condition for participating in the State Fair’s china painting competition

      violates her First Amendment right to free speech. Because we conclude that

      Hulse does not have standing to raise her First Amendment claim and does not

      have a ripe overbreadth claim, we affirm the trial court’s grant of summary

      judgment.


[2]   We affirm.


                                                       Issue
              Whether the trial court erred when it granted summary judgment
              in favor of the Fair Board.

                                                       Facts
[3]   The Fair Board administers Indiana’s annual State Fair, including the fair’s

      Home and Family Arts Department’s fine arts competitions. In order to exhibit

      at the State Fair and compete in the fine arts competitions, participants must

      agree to the “General Terms and Conditions” (“Terms and Conditions”) listed

      in the fair’s entry book and follow the individual rules for each competition.

      (App. Vol. 2 at 24). General Principle number 6 (“General Principle 6”) of the

      Terms and Conditions states that “No exhibitor may take exception to the

      decisions of an official and/or judge in an unprofessional and/or public manner

      nor shall any exhibitor or person representing the exhibitor interfere with or

      show disrespect to any judge or show official.” (App. Vol. 2 at 26). An




      Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 2 of 12
      exhibitor that takes exception to the decisions of an official or judge must,

      instead, follow the fair’s established procedure for filing a grievance.1


[4]   Hulse regularly exhibited in the State Fair’s fine arts competitions for several

      years. During this time, she believed that she witnessed several exhibitors

      violate the fair’s china painting competition rules by entering copied, rather

      than original, work and by violating the rules in other respects. In 2014, Hulse

      discussed these violations with Fair Board member Douglas W. Huntsinger

      (“Huntsinger”). However, she did not file a written grievance or pay the $500

      filing fee required for an official grievance; nor did Huntsinger act on her

      complaints.


[5]   Subsequently, Hulse saw the following statement in the Indiana World

      Organization of China Painters’ (“IWOCP”) September 27, 2014 meeting

      minutes:


              The person in charge of the china [p]ainting exhibit at the State
              Fair had a complaint from an individual that some of the china
              painting exhibits were copies. The complaint was dismissed
              because of insufficient evidence. The State Fair people are going
              to document future complaints and this particular individual may
              be banned from the State Fair if the complaints become a
              nuisance. The rules for non-professional pieces are more lenient.
              Regina reported that the State Fair exhibit and demonstrations
              went well.




      1
       Among other requirements, an official grievance must be “presented in writing” and “accompanied by a
      $500 cash or money order made out to the Indiana State Fair.” (App. Vol. 2 at 27).

      Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018                 Page 3 of 12
      (App. Vol. 2 at 124). Hulse filed a public record request asking for

      documentation of “[a]ny grievances, complaints, or other similar documents,

      filed or attempted to be filed,” in the 2014 State Fair china painting

      competitions. (App. Vol. 2 at 148). She received a response that no records

      matched her request because no grievances had been filed in 2014.


[6]   In the summer of 2015, Hulse again participated in the State Fair and again

      thought she witnessed several china painting competition rule violations, as

      well as unethical judging practices. As a result, she filed an official written

      grievance with the Fair Board on August 21, 2015. Huntsinger responded to

      the grievance, telling her that he refused to accept it because it was untimely.

      Over the next month, Hulse exhausted her administrative appeal remedies and

      then filed a petition for judicial review.


[7]   While her petition for judicial review in that cause was pending, Hulse filed a

      complaint in the instant cause seeking a declaratory judgment that General

      Principle 6 of the Terms and Conditions is unconstitutional. She also sought

      preliminary and permanent injunctions preventing the State Board from

      enforcing General Principle 6. In her complaint, Hulse argued that General

      Principle 6 is a content-based restriction on her right to free speech that is

      unconstitutional under the First Amendment of the United States Constitution

      because it is not narrowly tailored to serve a compelling government interest.


[8]   On December 30, 2015, Hulse filed a motion for summary judgment on her

      complaint. In support of this motion, Hulse designated an affidavit in which


      Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 4 of 12
       she averred that, when she had discussed her grievances with Huntsinger in

       2014, he had told her not to pay the $500 filing fee required for a formal

       grievance and that he would handle the issues she had raised. She believed that

       this discussion with Huntsinger was the complaint mentioned in the IWOCP

       minutes because her public records request had revealed that no one else had

       filed any grievances regarding the china painting competitions in 2014. As a

       result, she claimed that the IWOCP’s minutes demonstrated that she faced the

       prospect of being banned from participation in the State Fair if she exercised her

       right to free speech by criticizing the judging in the china painting competitions.


[9]    On March 23, 2016, the Fair Board filed a response in opposition to Hulse’s

       motion for summary judgment, as well as a cross-motion for summary

       judgment. The Board argued, in relevant part, that General Principle 6 does

       not violate the First Amendment because it is content-neutral and narrowly

       tailored to serve a compelling state interest.


[10]   In support of its cross-motion for summary judgment, the Fair Board

       designated an affidavit from Huntsinger. In the affidavit, Huntsinger averred

       that he had not been “required” to act on Hulse’s attempted 2014 grievance

       because she had never filed a formal, written grievance. (App. Vol. 2 at 171).

       He said that Hulse had “led [him] to believe that she would put her suggested

       edits to the rules in writing and send them to [him]” but had not done so in

       spite of “multiple” follow-up requests. (App. Vol. 2 at 171-72). As for the

       IWOCP’s minutes, Huntsinger “strongly refuted” that any State Fair staff or

       Board members had made any comments to the IWOCP about a person filing a

       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 5 of 12
       complaint during the 2014 state fair. (App. Vol. 2 at 172). Further, Huntsinger

       averred that the State Fair had never directly or indirectly threatened to ban

       Hulse from exhibiting at the fair.


[11]   On November 6, 2016, the trial court entered an order granting summary

       judgment in favor of the Fair Board. The trial court concluded that Hulse had

       waived her constitutional rights by agreeing to be bound by the Terms and

       Conditions when she entered the china painting competitions. In addition, the

       trial court also addressed the merits of Hulse’s claim and concluded that

       General Principle 6 does not violate the First Amendment because it is content-

       neutral and narrowly tailored to serve a compelling state interest. Hulse now

       appeals.


                                                     Decision
[12]   On appeal, Hulse argues that the trial court erred in granting summary

       judgment in favor of the Fair Board. She requested in her motion for summary

       judgment for the trial court to issue a declaratory judgment that General

       Principle 6 is unconstitutional, and the Fair Board filed a cross-motion for

       summary judgment arguing that it was entitled to judgment as a matter of law

       because Hulse had waived her constitutional rights and because General

       Principle 6 is not unconstitutional. Now, Hulse contends that the Fair Board

       failed to prove that it was entitled to judgment as a matter of law. In response,

       the Fair Board argues, among other arguments, that the trial court did not err in

       concluding that it was entitled to judgment as a matter of law because Hulse

       lacked standing to raise her claim.
       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 6 of 12
[13]   We review an order for summary judgment de novo, which is the same

       standard of review applied by the trial court. Miller v. Town Bd. of Sellersburg, 88

       N.E.3d 217, 218 (Ind. Ct. App. 2017). The moving party must “‘affirmatively

       negate an opponent’s claim’ by demonstrating that the designated evidence

       raises no genuine issue of material fact and that the moving party is entitled to

       judgment as a matter of law.” Id. (quoting Ind. Restorative Dentistry, P.C. v. Laven

       Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015)). The burden then shifts to the

       nonmoving party to demonstrate a genuine issue of material fact. Id.


[14]   Preliminarily, we will address the Fair Board’s argument that Hulse lacked

       standing. While the trial court did not address the issue of standing in its order,

       we may affirm the entry of summary judgment on any grounds supported by

       the designated evidentiary materials. Bragg v. Kittle’s Home Furnishings, Inc., 52

       N.E.3d 908, 919 (Ind. Ct. App. 2016), reh’g denied, trans. denied. Further, as a

       matter of jurisprudence, “we do not decide cases upon constitutional grounds

       when they can be decided upon other grounds.” Superior Const. Co. v. Carr, 564

       N.E.2d 281, 284 (Ind. 1990).


[15]   “‘The doctrine of standing focuses on whether the complaining party is the

       proper person to invoke the Court’s power.’” Bd. of Trustees of Purdue Univ. v.

       Einstein, 87 N.E.3d 481, 503 (Ind. Ct. App. 2017) (quoting Barnette v. U.S.

       Architects, LLP, 15 N.E.3d 1, 11 (Ind. Ct. App. 2014), reh’g denied). “‘The

       standing requirement restrains the judiciary to resolving only those cases and

       controversies in which the complaining party has a demonstrable injury.’” Id.

       (quoting Barnette, 15 N.E.3d at 11) (emphasis added). Whether a party has

       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 7 of 12
       standing is a pure question of law that we review de novo. Bellows v. Bd. of

       Comm’rs of Cty. of Elkhart, 926 N.E.2d 96, 113 (Ind. Ct. App. 2010).


[16]   Although Indiana has very little precedent regarding the issue of standing in the

       context of the First Amendment, we find federal holdings on the subject

       dispositive. Federal cases reveal that a plaintiff must show evidence of three

       elements to establish standing: (1) the plaintiff has suffered an “injury in

       fact”—an invasion of a legally protected interest that is “concrete and

       particularized” and “‘actual or imminent, not ‘conjectural’ or ‘hypothetical,’”

       Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v.

       Arkansas, 495 U.S. 149, 155 (1990)); (2) there is a causal connection between the

       injury and the conduct complained of; and (3) it is “‘likely,’ as opposed to

       merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”

       Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)).


[17]   Hulse argues that she has suffered and will suffer an “injury in fact” because the

       Fair Board may ban her from exhibiting at a fine arts competition under

       General Principle 6 if she expresses disagreement with the china competition

       results. She also argues that fear of being banned has “chilled” her speech on

       the issue. (Hulse’s Reply Br. 9).


[18]   As for Hulse’s argument that General Principle 6 has “chilled” her speech, we

       note that “[c]hilled speech is, unquestionably, an injury supporting standing.”

       Bell v. Keating, 697 F.3d 445, 453 (7th Cir. 2012). However, “‘allegations of a

       subjective chill [are] not an adequate substitute for a claim of specific present


       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 8 of 12
       objective harm or a threat of specific future harm.’” Id. at 454 (quoting Laird v.

       Tatum, 408 U.S.1, 13-14 (1972), reh’g denied). Hulse has failed to show an

       objective harm here as Hulse continued to file a grievance and lawsuit after she

       read the IWOCP’s minutes and perceived a threat of being banned. Her actions

       demonstrate that her exercise of her right to free speech has not been chilled.


[19]   As for Hulse’s argument that it is likely she might be banned from participating

       in the fair in the future, we note that an allegation of a potential future injury

       “‘may suffice” to establish standing “if the threatened injury is certainly

       impending, or there is a substantial risk that the harm will occur.’” Kiser v.

       Reitz, 765 F.3d 601, 607-08 (6th Cir. 2014) (quoting Susan B. Anthony List v.

       Driehaus, 134 S.Ct. 2334, 2341 (2014)). A plaintiff satisfies this requirement

       when she alleges “an intention to engage in a course of conduct arguably

       affected with a constitutional interest, but proscribed by a statute, and there

       exists a credible threat of prosecution thereunder.” Babbitt v. United Farm

       Workers Nat’l Union, 442 U.S. 289, 298 (1979). This threat need not be criminal

       in nature; “[a]dministrative action, like arrest or prosecution, may give rise to

       harm sufficient to justify pre-enforcement review.” Susan B. Anthony List, 134

       S.Ct. at 2345.


[20]   Here, Hulse has not established that she will imminently suffer an injury in fact

       because her intended conduct is not “proscribed by statute.” See Babbitt, 442

       U.S. at 298. Hulse asserts that she might be banned from the china painting

       contest as a result of filing a grievance regarding the competition’s judging, but

       the Terms and Conditions do not proscribe the filing of grievances. In fact,

       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 9 of 12
       they explicitly authorize a procedure for filing grievances and specify that all

       persons submitting grievances shall have due process rights. See (App. Vol. 2 at

       27) (“Within twenty-four (24) hours of observing any suspected infraction,

       Exhibitors competing in an Open Class competition shall personally present a

       Grievance Form (found at page 9) to the Entry Office in the Communications

       building . . . . The person(s) submitting the grievance shall have the due process

       rights set forth in the Due Process section . . . .”).2 The Terms and Conditions

       also allow exhibitors to appeal the decisions of judges “when it is charged that

       the award has been made in violation of the terms and conditions governing the

       exhibit.” (App. Vol. 2 at 28).


[21]   Additionally, Hulse has not shown that she faces a credible threat of

       prosecution. See Babbitt, 442 U.S. at 298. She claims that the IWOCP minutes

       indicated that the Fair Board had considered banning her in the past. However,

       regardless of whether the statements mentioned in the IWOCP minutes can be

       attributed to the Fair Board, the Board has not shown any indications of

       invoking General Principle 6 in response to Hulse’s grievances. To the

       contrary, as stated above, Hulse filed further grievances in 2015 after the

       IWOCP released its minutes, yet she was allowed to continue participating in

       the fair in 2016. In light of these factors, we conclude that Hulse has not




       2
           These due process rights include notice of a penalty and the right to appeal.


       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018        Page 10 of 12
       asserted an imminent injury in fact necessary to acquire standing to challenge

       General Principle 6 as it applies to her.


[22]   Nevertheless, Hulse notes that, in the First Amendment context, plaintiffs

       generally have standing to raise claims on behalf of others, even if they do not

       have standing themselves. See Dream Palace v. Cty. of Maricopa, 384 F.3d 990,

       999 (9th Cir. 2004). This exception applies in cases where a statute is overly

       broad. See id. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984), abrogated on

       other grounds, which noted that the overbreadth doctrine functions as an

       exception to “‘the general prohibition on a litigant’s raising another person’s

       legal rights’”). In such cases, the doctrine “‘serves to overcome what would

       otherwise be a plaintiff’s lack of standing.’” 4805 Convoy, Inc. v. City of San

       Diego, 183 F.3d 1108, 1112 (9th Cir. 1999) (quoting Nunez v. City of San Diego,

       114 F.3d 935, 949 (9th Cir. 1997)). The reason for this special rule in First

       Amendment cases is that “[a]n overbroad statute might serve to chill protected

       speech.” See Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977), reh’g denied.


[23]   However, we conclude that Hulse’s overbreadth claim is not ripe. While the

       overbreadth doctrine provides exceptions to the general rules on standing, it

       does not establish ripeness. Hallandale Professional Fire Fighters Local 2238 v. City

       of Hallandale, 922 F.2d 756, 760 n. 4 (11th Cir. 1991) (clarifying that the

       overbreadth doctrine addresses “the standing aspect of justiciability, not

       ripeness”) (emphasis in original). In other words, the doctrine does not “stand

       for the proposition that no actual or impending injury is necessary; instead [it]

       say[s] that this plaintiff may be allowed to launch the attack even though he is

       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 11 of 12
       not, or will not be, the one suffering the actual or impending injury.” Id. Even

       in an overbreadth claim, plaintiffs must “‘demonstrate an injury in fact,” as

       required under the ripeness doctrine, “to invoke a . . . court’s jurisdiction.’” Id.

       (quoting 4805 Convoy, Inc., 183 F.3d at 1112).


[24]   Hulse has not designated any evidence that any other potential plaintiff has

       suffered or will suffer an imminent injury in fact as a result of General Principle

       6. As a result, we conclude that her claim that she may challenge General

       Principle 6 as being overly broad is not ripe for our review.


[25]   Because Hulse lacked standing to raise her “as applied” challenge to General

       Principle 6 and her overbreadth challenge is not yet ripe, we conclude that the

       Fair Board was entitled to judgment as a matter of law. See Prasco, LLC v.

       Medicis Pharmaceutical Corp., 537 F.3d 1329, 1336 (Fed. Cir. 2008) (noting that

       standing and ripeness are the “absolute constitutional minimum for a justiciable

       controversy”). Therefore, the trial court did not err in granting summary

       judgment in the Fair Board’s favor.


[26]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1611-PL-2654 | February 28, 2018   Page 12 of 12
