                                                                  FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          Feb 15 2013, 9:20 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                       CLERK
collateral estoppel, or the law of the case.                         of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANTS:                               ATTORNEYS FOR APPELLEES:

LESLIE C. SHIVELY                                      ALLYSON R. BREEDEN
Shively & Associates, P.C.                             KEITH W. VONDERAHE
Evansville, Indiana                                    ROBERT L. BURKART
                                                       Ziemer Stayman Weitzel & Shoulders, LLP
                                                       Evansville, Indiana

                                                       JOHN A. HAMILTON
                                                       Evansville, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

VFW POST 2953, et al,                              )
                                                   )
       Appellants-Plaintiffs,                      )
                                                   )
               vs.                                 )   No. 82A01-1206-PL-255
                                                   )
CITY OF EVANSVILLE AND                             )
EVANSVILLE COMMON COUNCIL,                         )
                                                   )
       Appellees-Defendants.                       )


                 APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                         The Honorable Robert J. Pigman, Judge
                             Cause No. 82C01-0602-PL-86


                                        February 15, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

        VFW Post 2953, American Legion Post 265, Owls Nest #30, River City Eagles 4023,

VFW Post 1114, Amvets Post 84, Riverbend Association, The Council of Clubs, and

Germania Maennechor (collectively, “Fraternal Organizations”) sought injunctive relief and

a declaratory judgment that City of Evansville Ordinance G-2012-1 Amended violates Article

1, Section 231 and Article 1, Section 9 of the Indiana Constitution.2 The trial court denied

relief and Fraternal Organizations appeal. We affirm.

                                                   Issues

        Fraternal Organizations present two issues for review:

        I.       Whether the trial court erred in finding that the Ordinance did not
                 violate Article 1, Section 23 of the Indiana Constitution; and

        II.      Whether the trial court erred in finding that the Ordinance did not
                 violate Article 1, Section 9 of the Indiana Constitution.

                                    Facts and Procedural History


1
 A group of tavern owners who joined Fraternal Organizations in challenging the Ordinance, including Paul
Stieler Enterprises, Inc. d/b/a Harbor Bay, have separately appealed the order and pursued their claim that the
Ordinance violates Article 1, Section 23 of the Indiana Constitution, in Cause No. 82A01-1205-CT-242.
2
  In their Amended Complaint, Fraternal Organizations provided a caption identifying one of their counts as
alleging a violation of the First Amendment to the United States Constitution. The First Amendment provides
that Congress shall make no law abridging the freedom of speech or the right of the people to peaceably
assemble, and has been incorporated into the Fourteenth Amendment and as such applies to all states. Helton
v. State, 624 N.E.2d 499, 505 (Ind. Ct. App. 1993) (citing Near v. Minnesota, 283 U.S. 697 (1931)), trans.
denied.
    The United States Supreme Court has recognized that citizens have a First Amendment right to associate in
two situations: (1) “intimate association,” when individuals “enter into and maintain certain intimate human
relationships,” and (2) “expressive association,” when individuals “associate for the purpose of engaging in
those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances,
and the exercise of religion.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984).
    In the proceedings below, Fraternal Organizations presented argument and authority relative to First
Amendment associational rights. However, on appeal, Fraternal Organizations claim only a violation of Article
1, Section 23 and Article 1, Section 9 of the Indiana Constitution.

                                                      2
        In 2006, the Evansville Common Council (“the Council”) adopted an ordinance that

prohibited smoking in workplaces and other public places in the City of Evansville (“the

City”) but exempted bars, private clubs, and riverboats. On February 13, 2012, the Council

adopted City of Evansville Ordinance G-2012-1 Amended, with an effective date of April 1,

2012 (“the Ordinance”). The Ordinance prohibits smoking in bars and private clubs but

permits smoking on riverboats.3 Casino Aztar is the sole riverboat as defined by the

Ordinance within the corporate limits of the City.

        Fraternal Organizations and a group of tavern owners filed a complaint seeking

preliminary and permanent injunctions against enforcement of the Ordinance and additionally

seeking a declaration of its unconstitutionality. The City filed a motion to dismiss.

        On March 28, 2012, the trial court conducted an evidentiary hearing on the motion for

a preliminary injunction. The court heard evidence that Casino Aztar was the only casino

meeting the definition of riverboat, most of the patrons came from outside the City, Casino

Aztar generated significant income to provide for capital improvements in the City, and

Casino Aztar had installed a major ventilation system. The court also heard testimony that

Fraternal Organizations had voluntary members with common interests, in some cases

functioned as support groups for members, and could expect to lose significant revenue from

the extension of the smoking ban to their premises.

        On March 30, 2012, the trial court entered its findings of fact, conclusions of law, and

3
 The Ordinance defines a riverboat as “a boat on which lawful gambling is authorized pursuant to Indiana
Code 4-33, as amended.” The surrounding restaurants and bars owned and operated by Casino Aztar are not
exempted from the Ordinance.


                                                   3
order denying injunctive relief. The trial court concluded that, although the organizations

and taverns had understandable concerns about a negative impact upon their income, which

might legitimately be presented in a legislative or political arena, the judiciary could not

substitute its opinion for the legislative process, and there was no reasonable likelihood of

success in establishing the unconstitutionality of the Ordinance.

          On May 15, 2012, the trial court entered a final judgment upholding the Ordinance

and denying injunctive relief, incorporating the findings of fact and conclusions of law of the

March 30, 2012 order.4 This appeal ensued.

                                        Discussion and Decision

                                Equal Privileges and Immunities Clause

          Fraternal Organizations claim that the Ordinance violates Section 23 of the Indiana

Constitution, the Equal 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.

When a statute is challenged under the Indiana Constitution, it stands “clothed with the

presumption of constitutionality until clearly overcome by a contrary showing.” Boehm v.

Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996).                         The party challenging the

constitutionality bears the burden of proof, and all doubts will be resolved against that party.

Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009). Municipal ordinances enacted pursuant

to a proper delegation of power are likewise presumptively valid and “stand on the same


4
    By agreement, the trial court dismissed Right of Privacy and Due Process claims brought by Tavern Owners.

                                                       4
footing as acts of the legislature” when subjected to constitutional scrutiny. City of

Indianapolis v. Clint’s Wrecker Serv., Inc., 440 N.E.2d 737, 740 (Ind. Ct. App. 1982).

       “The requirements of Article 1, § 23 govern not only state statutes, but also the

enactments and actions of county, municipal, and other governmental agencies and their

equivalents.” Dvorak v. City of Bloomington, 796 N.E.2d 236, 238 (Ind. 2003). However,

“the question of classification under [Section 23] is primarily a question for the legislature”

and “legislative classification becomes a judicial question only where the lines drawn appear

arbitrary or manifestly unreasonable.” Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d

867, 869 (1974). To overcome the presumption of constitutionality under Section 23, the

challenger bears the burden to negate every conceivable basis which might have supported

the classification. Mahowald v. State, 719 N.E.2d 421, 425 (Ind. Ct. App. 1999).

       A statute may be the subject of a claim under Section 23 when it either grants unequal

privileges or imposes unequal burdens. Martin v. Richey, 711 N.E.2d 1273, 1280 (Ind.

1999). The Ordinance extends to Casino Aztar (and any other riverboat to acquire a gaming

license) a privilege in the form of an exception to the smoking ban that is unavailable to

Fraternal Organizations. Fraternal Organizations claim that the grant of unequal privileges is

arbitrary and manifestly unreasonable.

       Observing that they, like Casino Aztar, face decreased revenues and have patrons who

bear like risks from second-hand smoke, Fraternal Organizations maintain that they are

similarly situated to Casino Aztar. According to Fraternal Organizations, the decision to

exempt riverboats was necessarily motivated by the City’s financial dependence upon casino


                                              5
revenue and this does not provide a rational basis for disparate treatment.

       In Collins v. Day, 644 N.E.2d 72 (Ind. 1994), the Indiana Supreme Court “engaged in

a comprehensive review of the history and purposes animating the adoption of Section 23 as

part of Indiana’s 1851 Constitution and of the subsequent case law[.]” League of Women

Voters of Ind. v. Rokita, 929 N.E.2d 758, 769 (Ind. 2010). “Synthesizing history, text, and

subsequent case law, [the Court] adopted a superseding analytical formulation that, when

statutes grant unequal privileges or immunities to differing persons or classes of persons, the

Equal Privileges and Immunities Clause imposes two requirements[.]” Id. at 769-70. The

formulation provides:

       “First, the disparate treatment accorded by the legislation must be reasonably
       related to inherent characteristics [that] distinguish the unequally treated
       classes. Second, the preferential treatment must be uniformly applicable and
       equally available to all persons similarly situated.” [Collins, 644 N.E.2d] at
       80. In addition, “in determining whether a statute complies with or violates
       Section 23, courts must exercise substantial deference to legislative
       discretion.” Id.

Rokita, 929 N.E.2d at 770. Accordingly, Fraternal Organizations bore the requirement of

showing (1) that the Ordinance’s disparate treatment of riverboats and private clubs is not

reasonably related to their distinguishing inherent characteristics, or (2) the exemption

accorded riverboats is not uniformly applicable and equally available to all those similarly

situated.

       The first Collins factor “involves considering both the nature of the characteristics that

distinguish the classes and the relationship between the disparate treatment and such

characteristics.” Rokita, 929 N.E.2d at 770. A statute may result in different treatment for


                                               6
different classifications of people without offending Section 23 if both (a) the disparately

treated classifications are rationally distinguished by distinctive, inherent characteristics, and

(b) such disparate treatment is reasonably related to such distinguishing characteristics. Id.

(citing Ledbetter v. Hunter, 842 N.E.2d 810, 813 (Ind. 2006) and Collins, 644 N.E.2d at 79).

       As for the inherent characteristics distinguishing the Fraternal Organizations and

Casino Aztar, Fraternal Organizations essentially contend they do not exist. In making this

claim, Fraternal Organizations focus only upon the negative financial impact, insisting that

they would suffer from a smoking prohibition as much or more than Casino Aztar. There

was evidence presented that a ban on smoking would cause Casino Aztar to lose

approximately 30% of its revenue. According to Fraternal Organizations, 70 to 80% of their

members are smokers and they likewise expect to lose significant revenue.

       They do not contest the facts that Casino Aztar tenders $1 of its $3 per patron

admittance fee to the City or that Casino Aztar leases property from the City. Thus, revenue

generated by Casino Aztar brings revenue for the City of Evansville apart from and in

addition to food and beverage taxes. The majority of that revenue is derived from the

operation of slot machines. Accordingly, the casino is in direct competition with other

casinos but not local clubs, which lack slot machines. Casino Aztar is a major employer in

the City.

       Moreover, Fraternal Organizations ignore the evidence that Casino Aztar, a large

multi-level venue, maintains a non-smoking level and has installed a large and modern




                                                7
ventilation system. Also, approximately 87% of the patrons of Casino Aztar are drawn from

areas outside the City.

       As to disparate treatment, Fraternal Organizations argue that the purpose of a smoking

ban is health protection and thus special treatment to one group of patrons does not further

this purpose. However, focus upon a law’s “purpose” is not determinative. Rokita, 929

N.E.2d at 770-71. Collins requires only that the disparate treatment accorded by the

legislation, not the purposes of the legislation, be reasonably related to the inherent

characteristics which distinguish the unequally treated classes. Dvorak, 796 N.E.2d at 239.

       According to the evidence and public commentary presented to the Commission, the

health risks of second-hand smoke to patrons of either social venue is a valid consideration.

However, exact exclusion and inclusion is impractical in legislation. Collins, 644 N.E.2d at

80. “Collins, its precursors, and its progeny all indicate that we look at the Legislature’s

balancing of the competing interests involved” and we accord considerable deference to the

manner in which the legislature has balanced those interests. Humphreys v. Clinic for

Women, Inc., 796 N.E.2d 247, 254-56 (Ind. 2003). We must determine whether the

challenger has negated every conceivable basis which might have supported the

classification. Ledbetter, 842 N.E.2d at 814.

       Judicial inquiry is appropriate only where the lines drawn appear to be either arbitrary

or manifestly unreasonable, and so long as the classification is based upon substantial

distinctions with reference to the subject matter, we do not substitute our judgment for that of

the legislature. Collins, 644 N.E.2d at 80. Nor will we inquire into the legislative motives


                                               8
for such classification. Id. Even so, “fiscal considerations are a legitimate basis for

legislative line-drawing” and we do not substitute our belief as to the wisdom of a particular

statute for that of the Legislature even if a statute was apparently ‘“born of unwise,

undesirable, or ineffectual policies.”’ Mahowald, 719 N.E.2d at 426 (quoting State v.

Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992)).

       Fraternal Organizations and Casino Aztar have different clientele and primary sources

of revenue, differing obligations as to payments due to the City from their revenue, and

distinct differences in their physical premises. Casino Aztar, a larger venue, has a half-

million-dollar ventilation system to partially address the specter of second-hand smoke.

Thus, the classifications are rationally distinguished by distinctive, inherent characteristics.

Fraternal Organizations did not negate every conceivable basis which might have supported

the classification here.

       As for the second Collins factor, Fraternal Organizations do not seem to dispute that

the preferential treatment (an exemption from the smoking ban) is “uniformly applicable and

equally available to all people similarly situated.” Collins, 644 N.E.2d at 80. At this time,

there are no other riverboats with a gaming license within the corporate limits of the City and

the parties appear to be in complete agreement that the exemption from the smoking ban

would be applicable to any other riverboat licensed for gaming in the future.

       Finally, in determining whether Section 23 is violated, courts are to exercise

substantial deference to legislative discretion. Rokita, 929 N.E.2d at 772 (citing Collins, 644

N.E.2d at 80). For example, in Rokita, “the possible absence of precise congruity in


                                               9
application to all voters represent[ed] a legitimate exercise of legislative discretion

warranting our deference.” Id.

          Here, it is true that an individual who patronizes Casino Aztar may smoke or may be

exposed to second-hand smoke although if he or she chooses to patronize a private club in

the City, smoking is banned. Fraternal Organizations observe that smoking in either place

impacts patrons’ health. Clearly, however, Fraternal Organizations’ petition for relief is not

targeted toward expanding the ban such that riverboat patrons are free of second-hand smoke.

    Rather, Fraternal Organizations seek a declaration that the ban is facially unconstitutional.

Arguing that there are pervasive and equal health risks of second-hand smoke does not

advance this position. Nonetheless, when 87% of riverboat patrons are non-city residents,

City legislation has greatly diminished impact on their lifestyle and health choices. In these

circumstances, the absence of precise congruity in legislation is entitled to deference.

          Fraternal Organizations have not satisfied their substantial burden to demonstrate that

the challenged ordinance violates the Equal Privileges and Immunities Clause of the Indiana

Constitution.

                                         Right to Speak Clause5


5
 The City asserts that Fraternal Organizations lack standing to pursue a Section 9 claim on behalf of individual
members, none of whom are a named plaintiff. Relying upon Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 343 (1977), the City refers to “limited circumstances” when an organization can assert constitutional
claims for individuals: (a) members would otherwise have standing to sue in their own right, (b) the interests
the organization seeks to protect are germane to the organizations’ purpose, and (c) neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit. According to the City,
Fraternal Organizations bore the burden of showing no conflict of interest or diversity of views preventing the
organizations from effectively representing the membership. In the proceedings below, there was no timely
challenge to standing leading to the development of a record regarding the existence or absence of any such
circumstances.


                                                      10
       In the Amended Complaint, Fraternal Organizations alleged that the smoking ban

violated the First Amendment of the United States Constitution and Article 1, Section 9 of

the Indiana Constitution, the Right to Speak Clause. Fraternal Organizations made no

specific claim under Article 1, Section 31 of the Indiana Constitution, which guarantees the

right to peaceably assemble.

       In argument before the trial court, Fraternal Organizations claimed that the smoking

ban constitutes an “encroachment” upon a fundamental right of free association; they urged

the trial court to apply a strict scrutiny analysis to the federal constitutional claim and

heightened scrutiny to the state constitutional claim. (Tr. 245.) However, Fraternal

Organizations provided no authority to suggest a violation of Indiana’s Right to Speak

Clause. The trial court proceeded to address the First Amendment challenge.

       In upholding the Ordinance, the trial court concluded that it regulates conduct, there is

no fundamental right to engage in the conduct of smoking, and the smoking ban has only a

remote or incidental impact on the rights of Fraternal Organizations members to freely

associate. Rejecting Fraternal Organizations’ contentions that smoking is a protected activity

or that the smoking ban unduly interferes with rights of association, the trial court relied upon

the reasoning of Fraternal Order of Eagles v. City and Borough of Juneau, 254 P.3d 348

(Alaska 2011).

       The City of Juneau had enacted an ordinance prohibiting smoking in certain places,

and the Fraternal Order of Eagles (“Eagles”) had argued that the ban infringed upon their

freedom of association under the First Amendment to the United States Constitution. Id. at


                                               11
351. Claiming that 85% of their members smoked, the Eagles argued that there was an

undue interference with their right to “intimate association” because the ordinance essentially

directed members to go elsewhere to engage in their associations. Id. at 353.

       The Eagles Court reviewed cases of other jurisdictions, including a case that it found

to be of “the closest factual analogy,” Am. Legion Post # 149 v. Wash. State Dep’t of Health,

164 Wash.2d 570, 192 P.3d 306 (2008):

       Although the Washington Supreme Court considered the relevant factors and
       determined that American Legion Post # 149 was not an intimate association
       because of its large membership, the court indicated that there would be no
       violation of the group’s rights even if it had been deemed an intimate
       association: “Even if the Post were deemed to facilitate intimate human
       relationships, the ban does not directly interfere with such relationships or a
       person’s ability to join the Post. Instead, it merely prohibits smoking in the
       Post’s building when employees are present.”

Eagles, 254 P.3d at 355 (quoting Am. Legion Post # 149). The Eagles Court then concluded:

         We agree with these other courts that an ordinance banning smoking in
       private clubs does not implicate the right to intimate association under the First
       Amendment. Even assuming the Eagles’ relationships are of the highly
       personal type that receive heightened constitutional protection, the ordinance
       does not regulate or interfere with the members’ “choices to enter into and
       maintain” those relationships. The ordinance does not regulate the
       membership of Aerie 4200 or who may associate with whom; it only regulates
       the conduct of members in certain places.
         The Eagles argue that the ordinance unduly interferes with “how, when, and
       where club members choose to partake of their intimate associations.” The
       Eagles essentially urge us (1) to adopt the “association plus” theory in spite of
       the uniform decisions of other courts and (2) to hold that “the right of intimate
       association includes a right to engage in any lawful activities the participants
       may choose.” But the First Amendment protects the ability to choose one’s
       intimate associates freely, not the ability to engage in any conduct in any place
       so long as one is interacting with his or her intimate associates.

Id. (internal citations omitted).


                                              12
       On appeal, Fraternal Organizations concede that their members lack a fundamental

right to smoke “but assert that the smoking ban negatively impacts their constitutionally

protected right to free association.” Appellant’s Brief at 11. Nonetheless, Fraternal

Organizations provide no argument directed to a First Amendment claim. Having abandoned

any First Amendment claim on appeal, they specifically contend that the Ordinance violates

Article 1, Section 9 of the Indiana Constitution, the Right to Speak Clause, which provides:

       No law shall be passed, restraining the free interchange of thought and
       opinion, or restricting the right to speak, write, or print, freely, on any subject
       whatever: but for the abuse of that right, every person shall be responsible.

“Common in state constitutions, this formulation is sometimes called the ‘freedom-and-

responsibility standard,’” according to which a legislature may not impair the flow of ideas

but is to sanction individuals who commit abuse. Price v. State, 622 N.E.2d 954, 958 (Ind.

1993). “The right to speak clause focuses on the restrictive impact of state action on an

individual’s expressive activity.” Whittington v. State, 669 N.E.2d 1363, 1368 (Ind. 1996).

Article 1, Section 9 is implicated when the State imposes a direct and significant burden on a

person’s opportunity “to speak his or her mind, in whatever manner the speaker deems most

appropriate.” Id.

       Accordingly, “the Indiana Constitution more jealously protects freedom of speech

guarantees than does the United States Constitution.” Lach v. Lake Cnty, 621 N.E.2d 357,

358 (Ind. Ct. App. 1993), trans. denied. Article 1, Section 9 claims are addressed under a

two-step analysis: first, we determine whether the state action has restricted a claimant’s

expressive activity and second, if it has, we decide whether the claimant’s restricted activity


                                               13
constituted an “abuse” of the right to speak. Ogden v. Robertson, 962 N.E.2d 134, 141 (Ind.

Ct. App. 2012), trans. denied. The level of scrutiny varies depending upon whether the

expressive activity is political or non-political. Blackman v. State, 868 N.E.2d 579, 585 (Ind.

Ct. App. 2007), trans. denied. Generally, the State’s determination that an expression was an

abuse of the right of free speech under the Indiana Constitution need only be found to be

rational. Id. However, where the claimant successfully demonstrates that his speech was

political (having as its aim to comment on government action), the State must show that it did

not materially burden the claimant’s opportunity to engage in political expression. Id.

       Here, Fraternal Organizations do not point to a particular expression entitled to state

constitutional protection. Fraternal Organizations present the following appellate argument:

         The evidence is without dispute that the purpose of the Fraternal
       Organizations is to provide a facility where veterans can meet and socialize
       sharing common experiences and essentially acting as a support group. This
       purpose is accomplished in the bars of said establishments where seventy to
       eighty percent (70%-80%) of the bar patrons are smokers.
         Undisputed evidence was presented that the smoking ban will reduce the use
       of the bars by the members thus negatively impacting the purposes of the
       Fraternal Organizations and impacting negatively the right to free association.
         The legislative history relative to Ordinance G-2012-A Amended contains no
       evidence justifying an “interest of vital importance justifying said
       encroachment.” Moreover, at trial neither the City nor Council presented any
       evidence to justify said encroachment.
         The trial court [erred] in concluding that Ordinance G-2012-1 Amended did
       not violate Article 1 Section 9 of the Indiana Constitution based [on] its
       determination on [sic] conclusion of law number 55, stating that “there has
       been no authority cited to this court nor can the court find any authority that
       smoking is a fundamental right.”
         The Fraternal Organizations respectfully assert that the trial court
       misconstrues the argument of the Fraternal Organizations. The Fraternal
       Organizations do not assert a fundamental right to smoke but assert that the
       smoking ban negatively impacts their constitutionally protected right to free
       association.

                                              14
Appellant’s Br. at 10-11. Accordingly, while Fraternal Organizations describe their purpose

and in a cursory fashion assert an encroachment upon a right to free association, they stop

short of identifying expressive activity restricted by state action or developing a

corresponding argument. As best we can discern their argument, Fraternal Organizations

contend that the smoking ban unduly interferes with their right of free association by

encouraging members to go elsewhere. In other words, they claim an indirect infringement

upon associational rights guaranteed by the Indiana Constitution.

       Unlike the United States Constitution, the Indiana Constitution contains a separate

provision, apart from the Right to Speak Clause, guaranteeing the right to peaceably

assemble. Article 1, Section 31 provides:

       No law shall restrain any of the inhabitants of the state from assembling
       together in a peaceable manner, to consult for their common good; nor from
       instructing their representative; nor from applying to the General Assembly for
       redress of grievances.

Nonetheless, Fraternal Organizations have made no claim under Article 1, Section 31, the

Rights of Assembly Clause. Moreover, having identified no expressive activity, Fraternal

Organizations have failed to satisfy their burden of demonstrating that the Ordinance violates

Article 1, Section 9 of the Indiana Constitution.

                                        Conclusion

       The Fraternal Organizations did not show that the Ordinance violates Article 1,

Section 23 or Article 1, Section 9 of the Indiana Constitution. The trial court did not err in

denying Fraternal Organizations’ request for a declaratory judgment.


                                             15
      Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                     16
