STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT

) ss
COUNTY 0F ALLEN ) CAUSE NO. 02D09-2109-PL-000366

CHRIS and NATALIE FORBING, on behalf of two

)))))))))))))))))))))))))))))))))
minor children, MIKE BELL, on behalf of three minor
children, JACQUELYN and ERIC CHRISTMAN, on
behalf of four minor children, ANDREW FRISINGER,
on behalf of three minor children,

ORDER
Plaintims),
VS.

GOVERNOR ERIC HOLCOMB, in his official capacity

as Governor of the State of Indiana, INDIANA STATE
DEPARTMENT OF HEALTH, KRISTINA BOX, M.D., in
her official capacity as Commissioner of the Indiana
State Department of Health, ALLEN COUNTY
DEPARTMENT OF HEALTH, MATTHEW SUTTER,
M.D., in his official capacity as Commissioner of the
Allen County Department of Health, NORTHWEST
ALLEN COUNTY SCHOOLS, CHRIS HIMSEL, Ph.D., in
his official capacity as Superintendent of the
Northwest Allen County Schools, TANA PICKETT, in
her official capacity as Assistant Principal of Carroll
High School, NORTHWEST ALLEN COUNTY SCHOOLS
BOARD OF TRUSTEES, ELIZABETH HATHAWAY, in
her official capacity as Vice President of the Northwest
Allen County Schools Board of Trustees, KRISTI
SCHLATTER, in her official capacity as Secretary of
the Northwest Allen County Schools Board of
Trustees, and RONALD FELGER, in his official
capacity as member of the Northwest Allen County
Schools Board of Trustees,

Defendant(s) .

The Court, having taken under advisement:

1. A Motion to Dismiss filed by the Defendants, Allen County Department of Health

and Matthew Sutter, M.D., in his official capacity as Commissioner of the Allen
County Department of Health (collectively referred to as “County Defendants”);
and,

2. A Motion to Dismiss filed by the Defendants, Northwest Allen

County Schools,
Chris Himsel, Ph.D., in his ofiicial capacity as Superintendent of the Northwest
Allen County Schools, Tanya Pickett, in her oflicial capacity as Assistant
of Carroll High School, Northwest Allen County Schools Board of
Principal
Trustees,
Elizabeth Hathaway, in her omcial capacity as Vice President of the Northwest
Allen County Schools Board of Trustees, Kristi Schlatter, in her official
capacity
 as Secretary of the Northwest Allen County Schools Board of Trustees, and
Ronald Felger, in his ofiicial capacity as member of the Northwest Allen County
Schools Board of Trustees (collectively referred to as “School Defendants”),

and having considered the legal memoranda and arguments of counsel now issues its
decision. ~

Backgound
Six parents, representing four family units, (collectively referred to as “Plaintifls”) have
minor children who attend schools in the Northwest Allen County School Corporation
(“NACS”). During the school-years, 2019-2020, 2020-2021 and 2021-2022, the COVID—
19 pandemic has affected the manner in which the NACS operates. For a period of time
during the current school year, 2021-2022, the NACS mandated the use of masks and
adopted a policy of enforcing rules concerning contact tracing and quarantine of
students that have been diagnosed with COVID- 19, experiencing COVID—like symptoms
or had been exposed to someone who had, or was presumed to have had, COVID-19.

On September 13, 2021, the Plaintifls filed a Complaint initiating this case. The
Complaint is framed in ten (10) counts.
Count 1 — Violation of Emergency Disaster Management Law, I.C. 10-14-3-1 et
seq.
Count 2 — Violation of Distribution of Powers Clause
Count 3 — Due Course of Law — Masks
Count 4 — Violation of Religious Exemption Statute - I.C. 20-34-3-2
Count 5 — Violation of Indiana Quarantine Laws — I.C. 16-41-9- 1.5 et seq.
Count 6 — Due Course of Law — Quarantines and Contact Tracing
Count 7 — Vaccine Passport Law - I.C. 16-39-1-1 et seq.
Count 8 — Illegal Search and Seizure
Count 9 — Equal Privileges and Immunities
Count 10 — 42 U.S.C. § 1983 (Dr. Box and Dr. Sutter, in their oficial capacities)

On October 4, 2021, Plaintifis filed a Motion for Summary Judgment and supporting
documentation.

On October 8, 202 1, School Defendants and County Defendants each filed a Motion to
Dismiss pursuant to Trial Rule 12(B) (6).

On December 10, 202 1 , Plaintifl's filed a response to each of the Motions to Dismiss filed
by the County Defendants and by the School Defendants.
On December 20, 2021, the School Defendants and the County Defendants each filed a
reply.

On December 22, 2021, a hearing was conducted on the Motions to Dismiss. The Court
took the two motions under advisement.
 Discussion

Beginning in March 2020, Defendant, Governor Eric Holcomb (“Govemor”) issued a

series of executive orders declaring a public health
emergency as a result of the COVID
outbreak/ pandemic with the efi‘ective dates of the latest executive orders issued
covering the date that the Plaintiffs’ filed their Complaint in September 2021.
(Complaint, para. 20).

On July 1, 2021, the Governor authorized local school boards to implement “whatever
measures and restrictions deemed necessary and prudent” to address COVID. The
Governor encouraged school boards to “follow CDC guidance and
any guidance to be
issued by the Indiana Departments of Health and Education.”
(Complaint, para. 40).
The State Board of Health recommended extensive
masking, social distancing, and
quarantining for the beg'nning of the 2021-2022 school year. Vaccination status was a
factor to be considered in the need for masking, social

.
distancing, and quarantining
(Complaint, para. 41).
In July2021 in preparation for the 2021-2022 school year, the NACS
approved a
COVID-Mitigation Procedures manual which contained NACS’s policies for masking,
contact tracing, quarantining and social distancing. (Complaint, Exh.

..
.
G).
On August 30, 2021, a majority of the NACS school board
adopted a policy requiring
the use of masks in the classroom. (Complaint, para.
58-60).
In their Complaint, Plaintiffs contend that two specific incidents occurred in which
the
some of the individual Plaintiffs were personally afi'ected
by policies for masking, contact
tracing, and / or quarantining:
o On August 16, 2021, Plaintifi‘, Joyce Christman (“Mother
Christman”) notified the
elementary school that her youngest child was staying at home due to a “slight”
fever. NACS administrators notified Mother Christman that the child
and her siblings were to be quarantined until each provided a youngest
negative COVID
test, or, an alternative diagnosis fi'om a medical provider, or, proof of vaccination.
(Complaint, para. 49 - 57). It is unclear fiom the allegations in the Complaint
whether the Christman children, or any number of them, missed classes due to
'

the quarantine policy.

o On September 1, 2021, Plaintifi', Natalie Forbing (“Mother

Forbing”) presented to
Defendant, Tanya Pickett, Assistant Principal at Carroll High School a written
request that her two children be exempted fi'om having to wear a mask due to
Mother Forbing’s religious beliefs. Mother Forbing’s
request was denied;
consequently, her one child was excluded from attending school for two days and
the other child was informed that the failure to wear a mask would bar the child
from participating in extracurricular activities. It is unhiown whether the one
child was barred from any exn‘acurriculaI activity. (Complaint, para. 6 1- 63; Exh
J).
Other than the two foregoing instances, the Plaintifi‘s claim that:
 The Governor has acted without legal authority to “mandate medical treatment
or interventions, including face masks”. (Complaint, para. 72).

The Governor has acted Without legal authority to “mandate quarantines to

exclude healthy students”. (Complaint, para. 73).

The Governor has acted without legal authority to “mandate invasive contact-
tracing procedures as a condition of attending K- 12 schools” and “requiring K-12
educational institutions to perform contact-tracing and report all ‘known positive
COVID cases’ to state and local health departments.” (Complaint, para. 74, 76).

Requiring mandatory masking violates Article 1, Section 12 of the Indiana

Constitution. (Complaint, para. 100).

Requiring mandatory masking without recognizing an exemption for relig'ous

grounds is in violation of I.C. 20-34-3-2. (Complaint, para. 120-126).

The NACS policy and practice of requiring a mandatory quarantine of students

with COVID like-symptoms or based on exposure to the COVID violates the
provisions of I.C. 16-41-9-1.5 et seq. (Complaint, para. 128, 137, 142, 143).

The policy and practice of requiring a mandatory quarantine of students with

COVID-like symptoms or based on exposure to the COVID and the policy of
contact tracing of students with COVID-like symptoms or based on exposure to
the COVID violates Article 1, Section 12 of the Indiana Constitution. (Complaint,
para. 147, 166, 170).

The policy of restricting K-12 students from attending school in-person unless
the student undergoes medical testing or treatment or proof of vaccination
without recognizing a relig'ous exemption violates I.C. 16-39-1-1 et seq.
(Complaint, para. 177, 178, 191).

The policy of contact tracing violates Article 1, Section 11 of the Indiana

Constitution. (Complaint, para. 193, 200).

The Governor by imposing mOre restrictions on schools and students than on the
general public has violated Article 1, Section 23 of the Indiana Constitution.
(Complaint, para. 204, 208).

The policy of quarantine and contact tracing imposed by Defendants, Kristina

Box, M.D. and Matthew Sutter, MD., in their oficial capacities, violates the
Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983.
(Complaint, para. 210, 217—218).
In their Complaint, the Plaintiffs request that the Court:

Issue a declaratory judgment declaring that:

 o The Defendants have exceeded their authority under the
Emergency
Management and Disaster Law.
o The Emergency Management and Disaster Law violates Article
3, Section
1 of the Indiana Constitution.
o The mask, contract tracing and quarantine
policies in efiect at the time of
the filing of the Complaint violate Indiana law and the Indiana
Constitution.
o The policy of providing NACS students an
exemption from certain
quarantine requirements based upon vaccination status violates the
Indiana Vaccine Passport Ban.
o NACS and Assistant Principal Pickett violated Indiana law
by refusing to
grant an exemption from the mandatory masking policy due to Mother
Forbing’s religious beliefs.
o NACS and Superintendent Chris Himsel violated the
quarantine statute
by excluding the Christman children from school.
o The quarantine and contact
tracing policies implemented by Dr. Box and
Dr. Sutter at the time of the filing of the
Complaint violate the Constitution
of the United States.
o Issue an injunction to the Defendants to refrain from
Constitution and the Constitution of the United Sates. violating the Indiana
o Award attomey’s fees and expenses pursuant to 42 U.S.C. 1983
§ and § 1988.
The County Defendants and the School Defendants each have filed
a Motion to Dismiss
pursuant to Trial Rule 12(B) (6) of the Indiana Rules of Trial Procedure.

Legal Standard
A T.R. 12(B)(6) Motion to Dismiss addresses the
legal sufiiciency of the claim and does
not require determinations of fact. Elliot v. Rush Memorial
Hosp, 928 N.E.2d 639
(Ind. Ct. App. 2010). When reviewing a motion to dismiss, the Court should 634,
review the
pleadings in the light most favorable to the non-moving party, with
inference drawn in the non-moving every reasonable
party’s favor. Caesars Riverboat Casino, LLC v.
Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). A
failure to state a claim upon which relief can be complaint may not be dismissed for
granted unless it is clear on the face of
the complaint that the
complaining party is not entitled to relief. City of New Haven v.
Reichhart, 748 N .E.2d 374, 377 (Ind. 2001). A motion to dismiss is
is apparent that the complaint states a set of facts and proper only when it
circumstances, which if true,
would not support the relief requested. Time Warner Entm’t Co. u.
Whiteman, 741 N .E.2d
1265, 1270 (Ind. Ct. App. 2001).

School Defendants’ Motion to Dismiss

The School Defendants contend that Counts 1, 2, 9 and 10 should
be dismissed because
they do not pertain to the School Defendants.

As to Count 1, the Plaintifi's allege that the School Defendants

“rely on authority
delegated from the Governor” (Complaint, para. 79) and that the Governor has issued
executive orders exceeding his authority under the
Emergency Management and
Disaster Law (“EMDL”). (Complaint, para. 78). Subsequently, the Plaintifl‘s contend that
the executive order, or orders, issued by the Governor authorizing the School
Defendants to establish and enforce policies for the mandatory use of masks, contact
tracing and the quarantining of students are invalid and of no legal eflect.
The Plaintiffs request that the Court issue a declaratory judgment declaring that the
Governor lacks authority to issue orders to local omcials to establish and enforce
policies for the mandatory use of masks, establish contact tracing and quarantine
students, and as such, the policies being established and enforced by School Defendants
are invalid. (Complaint, para. 80).

The Plaintiffs further request that the Court issue an injunction prohibiting the
implementation and enforcement of the said policies. (Complaint, para. 231). Count 1
requests relief from the actions of all of those Defendants who base their actions on the
Governor’s executive orders, including the School Defendants.

Accordingly, as to Count 1, the Court finds that School Defendants have failed to
demonstrate the School Defendants are entitled to the dismissal of Count 1 on the basis
that the allegations in Count l do not pertain to the School Defendants.

Count 2

Plaintiffs contend that the EMDL violates Article 3, Section 1 of the Indiana Constitution,
the “Distribution of Powers Clause”.

The School Defendants claim that Count 2 of the Complaint does not pertain to the
School Defendants.

Paragraph 94 of the Complaint claims that to the extent that the Governor has been
conferred the authority to establish and enforce policies for the mandatory use of
masks,
establishing contact tracing and the quarantining of students pursuant to the
provisions of the EMDL, the Governor’s directives are unconstitutional. Since the
Complaint specifically requests the Court enjoin the School Defendants from complying
with the Governor’s directives issued pursuant to the EMDL, the Court
disagees with
School Defendants’ argument that Count 2 does not implicate School Defendants.

Accordingly, as to Count 2, the Court finds that School Defendants have failed to
demonstrate the School Defendants are entitled to the dismissal of Count 2 on the basis
that the allegations in Count 2 do not pertain to the School Defendants.

Count 9
The School Defendants claim that the allegations of Count 9 do not pertain to the School
Defendants.

Count 9 appears to be similar to Plaintiffs’ claim in Count 2 questioning the

constitutionality of the Governor’s directives to public health ofiicials and school officials
authorizing them to establish and enforce policies for the mandatory use of masks,
establishing contact tracing and the quarantining of students. Count 2 addresses the
constitutionality of the EMDL; however, Count 9 addresses the manner in which the
 Governor applies the EMDL. Plaintifi's allege in Count 9 that the Governor violates Article
l, Section 23 of the Indiana Constitution by placing greater restrictions on schools than
the restrictions the Governor has imposed on non-educational settings. Paragaph 207
makes reference to “Defendants”, which includes the School Defendants, and as with
Count 2, Plaintifl’s Complaint requests the Court enjoin the School Defendants from
complying with the Governor’s directives issued pursuant to the EMDL. (Complaint,
para. 23 1).

Accordingly, as to Count 9, the Court finds that School Defendants have failed to
demonstrate the School Defendants are entitled to the dismissal of Count 9 on the basis
that the allegations in Count 9 do not pertain to the School Defendants.

Count 10
The School Defendants claim that the allegations of Count 10 do not pertain to the
School Defendants.

Paragraphs 211 through Paragaph 215 alleges that NACS and Defendant,
Superintendent Himsel acted to quarantine the Christman children in such a manner
so as to violate their rights guaranteed under the Constitution of the United States and
in violation of 42 U.S.C. § 1983. The Plaintifls requests injunctive relief against NACS
and Superintendent Himsel and an award of attorney’s fees incurred by the Plainfifis.

Accordingly, as to Count 10, the Court finds that School Defendants, NACS and
Superintendent Chris Himsel, have failed to demonstrate the School Defendants are
entitled to the dismissal of Count 10 on the basis that the allegations in Count 10 do
not pertain to the School Defendants, NACS and Superintendent Chris Himsel.

However, other than NACS and Superintendent Chris Himsel, Count 10 does not
contain allegations identifying any other School Defendants
regarding the 42 U.S.C. §
1983 claim. Thus, the remaining School Defendants, Tanya Pickett, in her ofiicial
capacity as Assistant Principal of Carroll High School, Northwest Allen County Schools
Board of Trustees, Elizabeth Hathaway, in her official capacity as Vice President of the
Northwest Allen County Schools Board of Trustees, Kristi Schlatter, in her official
capacity as Secretary of the Northwest Allen County Schools Board of Trustees, and
Ronald Felger, in his official capacity as member of the Northwest Allen
County Schools
Board of Trustees, are entitled to dismissal because given the present
language of Count
10, Count 10 does not pertain to these individual defendants.

Count 3
The School Defendants claim that Count 3 should be dismissed because a
policy of
mandatory masking does not violate the Due Course of Law Clause of the Indiana
Constitution. School Defendants cite a number of decisions issued by federal courts
l
holding that there is no fundamental constitutional right to not wear a mask.‘

'
Plaintiffs and School Defendants concede that the same analysis is applicable to claims made under the
Due Course of Law Clause of the Indiana Constitution and the Due Process Clause of the United States
Constitution.
In Klaassen v. Trustees of Indiana Univ., 2021 U.S. Dist. LEXIS 133300 (N.D. Ind. July
18, 2021) eight students of Indiana University sought to enjoin the University fi'om
implementing and enforcing a policy of requiring vaccines in order to be involved in on-
campus activities. The trial court denied the students motion for preliminary
injunction? Most of the plaintifi's also objected to the University’s policy of mandatory
masldng contending that mandatory masking violated their fundamental constitutional
right of liberty to refrain from having to wear a mask. The trial court, citing numerous
federal decisions, held that there is no fundamental constitutional right to not wear a
mask. Id. *104.

Plaintifis’ response to the School Defendants’ Motion to Dismiss Count 3 fails to cite any
case law in support of Plaintifis’ claim that mandatory mashng violates the Plaintifl‘s’
fundamental liberty interests.

Accordingly, the Court finds that Plaintiffs’ Count 3, by alleg'ng that the School
Defendants’ policy of requiring that students wear masks while attending classes and
other school activities violates Aru'cle l, Section 12 of the Indiana Constitution, Count
3 fails to state a claim for which relief may be granted.

Plaintiffs also allege in Count 3 that the requirement of wearing a mask violates their
fundamental constitutional right to refuse unwanted medical treatment. This was also
an argument advanced by the Plaintiffs’ in Klaassen as to why they should not be
required to be vaccinated in order to participate in on-campus activities. Id. at *59. The
District Court acknowledged the constitutional right of an individual to refuse unwanted
medical treatment. However, the District Court determined that while the right to refuse
a vaccine is a sigiificant liberty under the Fourteenth Amendment it is a right that is
subject to regulation as a matter of public health using rational basis review. Id. at *62.
“A vaccine is implemented as a matter of public health, and historically hasn’t been
constitutionally deterred from state mandate.” (Citations omitted). Id. at *62.
Accordingly, the court in Klaassen, determined that the University’s requirement to be
vaccinated did not violate the students’ constitutional right to refuse unwanted medical
treatment. “Given over a century’s worth of rulings saying there is no greater right to
refuse a vaccination than what the Constitution recognizes as a significant liberty, the
court declines the students’ invitation to extend substantive due process to recognize
more than what already and historically exists. (Citations omitted). Id. at *63.

If Indiana University’s vaccine mandate is not considered a violation of its students’

substantive due process right to refuse medical treatment during a public health crisis,
it is unlikely that a mask mandate would be considered to be a violation of the students’
right to refuse medical treatment.3

2The District Court’s decision to deny the request for injunctive relief was upheld by the Seventh Circuit.
Klassen u. Trustees of Indiana Univ., 7 F. 4th 592 (71h Cir. 2021). On August l2, 2021, the United States
Supreme Court refused Plaintiffs’ application to issue an injunction. Klassen v. Trustees of Indiana Univ.,
2021 U.S. LEXIS 3677. This Court is appreciative of the comprehensive and well-written opinion by Judge
Leichty.
3This Court is assuming for purpose of argument sake that requiring a mask constitutes “treatment”.
Consequently, the Court does not address the merits of the parties’ arguments as to whether the
requirement of wearing a mask constitutes medical treatment. It is unnecessary to do so.
 Plaintifis’ response to the School Defendants’ Motion to Dismiss Count 3 fails to cite any
case law in support of Plaintifi's’ claim that mandatory mashng violates the Plaintifl's’
right to refuse unwanted medical treatment during a public health crisis.

Accordingly, the Court finds that Plaintifls’ Count 3, alleging that the School Defendants’
policy of requiring that students wear masks while attending classes and other school
activities violates Article 1, Section 12 of the Indiana Constitution because it
unconstitutionally impinges on the students’ right to refuse medical treatment, fails to
state a claim for which relief may be granted and therefore Count 3 should be dismissed
as to the School Defendants.

Count 4
Plaintifls’ Count 4 alleges that pursuant to I.C. 20-34-3-2 students “have a
right to a
religious exemption from medical treatment” (Complaint, para. 117,126) and that
mandatory masking constitutes medical treatment that is subject to the provisions of
I.C. 20-34-3-2 (Complaint, para. 118-122).

The School Defendants contend that Count 4 should be dismissed because I.C. 20-34- 3

3-2 doesn’t apply to NACS’s mask mandate. ‘.

I.C. 20-34-3-2(a) states that “[e]xcept as otherwise provided, a student

may not be
required to undergo any testing, examination, immunization, or treatment reguired
under this chapter or IC 20-34-4 when the child’s parent objects on
religious gounds.”
(Emphasis supplied).
The School Defendants argue that requiring the use of face masks does not constitute
treatment and therefore I.C. 20-34-3-2 (a) is inapplicable. (School Deft’s Memo in
Support, p. 10).
In their response, the Plaintiffs ofler no explanation how I.C.
20-34-3-2(a) applies to the
facts and circumstances of this case. Rather, Plaintiffs argue that the Indiana
Relig'ous
Freedom Restoration Act, I.C. 34-13-9-1 et seq. applies in this case.4

The operative wording of I.C. 20-34-3-2(a) is “required under this chapter or I.C. 20-34-
4”. Plaintiff’s Count 4 fails to allege that NACS’s policy of mandatory
masking constitutes
an activity that is, or would be, governed by I.C. 20-34-3 or I.C. 20-34-4.
by

Accordingly, the Court finds that Count 4 fails to state a claim for which relief may be
ganted to the Plaintifls because of the NACS’s policy mandating the use of masks.
Count 5

4 The Court agrees with the School Defendants’ reply to the Plaintiffs’ response to the effect that Plainu'ffs
did not allege a violation of I.C. 34-13-9-1 or any of the provisions of the Indiana
Religious Freedom
Restoration Act in Count 4. Consequently, the Court limits its review of the merits of the School
Defendants Motion to Dismiss Count 4 to Plaintiffs’ allegation that the School Defendants’ refusal to
grant
the Forbing Plaintiffs a religious exemption violated the provisions of I.C. 20-34-3-2. Pursuant to Trial
Rule 12(B), Plaintiffs have the opportunity to amend the Complaint at which time the Plaintiffs
may make
a claim based upon I.C. 34-13-9.
Count 5 alleges that the School' Defendants, relying upon guidance from State
Defendants and/ or County Defendants, impose mandatory quarantines excluding
students from school. Plaintiffs maintain that NACS lacks authority to exclude students
from attending on-campus schooling and activities because the State Defendants
and / or the County Defendants are violating I.C. 16-41-9 et seq.

The School Defendants argue that I.C. 16-41-9-1.5 applies only to court—ordered
exclusions/ quarantine and not to exclusions /quarantim'ng ordered by school
authorities. School Defendants maintain that any quarantine of students excluding
them from class is governed by I.C. 16-41-2 (and 410 I.A.C. 1-2.5—60), not by I.C. l6-
41-9.

The School Defendants’ arguments about which statute is applicable requires the Court
to deny the Trial Rule 12(B)(6) Motion to Dismiss because the Court cannot make that
determination on the face of the pleadings. Instead, the Court will need to determine
from the facts of the case, which of the two statutory provisions, if either, are
applicable
to the facts in this case. Facially, it is clear from the
language of the statutes that I.C.
16-41-2-1 applies to the State Defendants, Indiana State Department of Health and or
/
Dr. Box while I.C.16-41-9 applies to public health authorities, which would
apply to the
State Defendants and the County Defendants.

In order to be entitled to a dismissal on a Trial Rule 12(B)(6) Motion to Dismiss, the

~
School Defendants have the burden to prove that it is clear on the face of the
pleadings

"av—H
that the complaining party is not enfitled to relief. The School Defendants have not
carried that burden as to Count 5.

Accordingly, the Court finds that the School Defendants’ Motion to Dismiss Count 5
should be denied.

m
Count 6
In Count 6, Plaintifis allege that “the Defendants’ quarantine policies” lack
legal
authority and are unlawful. Specifically, Plaintiffs contend that “state imposed,
mandatory quarantines of healthy students” and the contact-tracing program are
unlawful and unconstitutional. (Complaint, para. 163-167). Further, Plaintiffs allege
that contact tracing and quarantining of students suspected of having or being exposed
to COVID is based on “pure speculation” and that the contact
tracing program fails to
provide adequate notice and the opportunity for a hearing before imposing restrictions
on a student. (Complaint, para. 160-161,169).

School Defendants argue that Count 6 should be dismissed because even

assuming if
there is a protectable interest at stake, “the School Defendants had a rational basis to
exclude students pursuant to IDOH’s Chapter 2 Quarantine rules.” (School Defts’
Response, p.15). The review utilized for a Trial Rule 12(B)(6) motion requires the Court
review the pleadings in a light most favorable to the non-moving party, with
every
reasonable inference drawn in the non-moving party’s favor. In reviewing the pleadings,
this Court cannot conclude that “the School Defendants had a rational basis to exclude
students pursuant to IDOH’s Chapter 2 Quarantine rules.” The Plaintiffs allege that the
Christman students and other students were excluded from attending school based
upon speculation, while the School Defendants contend that the students’ exclusion
fi'om school is based on a policy in which the policymaker, or policymakers, had a
rational basis for preventing the afiected student, or students, from exercising their right
to receive an education in an in-person setting.

At this stage of the litigation, the Court has not received any evidence concerning how
the School Defendants determined that the Christman children should be quarantined.
The Court has not been provided the evidence to explain the rational basis claimed by
the State Defendants, County Defendants and or the School Defendants to justify the
quarantine of the Christman children. In their memorandum in support of the Motion
to Dismiss, the School Defendants relate that “[e]ven though H.C. undisputedly had a
COVID symptom (a fever), the School Defendants allowed all the Christman children to
return to school out of a spirit of cooperation.” (School Defts’ Memo in Support, p. l8).
This information is not contained in the pleadings and therefore the Court cannot
consider this information in determining the merits of the Motion to Dismiss.

The School Defendants have the burden to prove that it is clear on the face of the
pleadings that the complaining party is not entitled to relief. The School Defendants
have not carried that burden as to Count 6. Accordingly, the Court must deny the
Motion to Dismiss as to Count 6.

Count 7

In Count 7 the Plaintifi‘s allege that the School Defendants’ policy of excluding a
student who is a “close contact” of an actual or presumed COVID case unless that
student undergoes “medical testing or treatment” or provides “proof of vaccination”
violates I.C. 16-39-1-1 et seq. (Complaint, para. 176). Plaintiffs contend that the policy
“creates a two-tier system favoring Vaccinated students' over fimvaccinated students’.”
(Complaint, para. 180). In addition, Plaintiffs contend that the above said policy
violates their right to relig'ous and/ or medical exemption under I.C. 20-34-3-2 and
I.C. 20-34-2—3. (Complaint, para. 178-179, 186-187).

As to Plaintifis’ claim that the School Defendants’ policy of excluding a student who is
a “close contact” of an actual or presumed COVID case unless the student undergoes
“medical testing or treatment” or provides “proof of vaccination” violates I.C. 16-39-1-1
et seq., the School Defendants respond that I.C. 16—39-11—5 does not apply to the
policy of excluding a student who is in close contact of an actual or presumed COVID
case unless the student undergoes medical testing or treatment or provides proof of
vaccination.

LC. 16-39- 11-5(a) states, in relevant part: “[elxcept as provided in subsection (b), the
state or a local unit may not issue or require an immunization passport.” Plaintiffs do
not allege that the School Defendants issued some type of immunization passport. Nor
is it alleged that the School Defendants require an immunization passport to attend
school. It does not logically follow that creating an exemption to the exclusion from in—
person learning based upon providing proof of vaccination equates to a policy of
requiring a student to be vaccinated.

Plaintiffs’ argument that the School Defendants’ policy of exclusion from in-person
education violates the Vaccine Passport Ban (LC. 16-39-11-5(a)) would be more
 compelling if the School Defendants simply had a policy of requiring proof of
vaccination in order to avoid being quarantined after being exposed to an actual or
presumed case of COVID. However, in this case, a student may also avoid exclusion by
undergoing testing or medical evaluation, if the result is negative for COVID.5

Accordingly, as to Plaintifls’ claim in Count 7 that the School Defendants’ policy of

exclusion from in-person education violates the Vaccine Passport Ban, the Court
would find that the said policy does not violate LC. 16-39-11-5(a) and therefore School
Defendants would be entitled to a dismissal of Count 7.

If the Plaintiffs chose to amend Count 7 of their Complaint, as they are entitled to do
so under Trial Rule 12(B), Plaintifi's may want to pursue their claim more on the basis
of Plaintifi's’ relig'ous freedoms. (Refer to foomote 4).

Count 8
In Count 8, Plaintifls allege that the policy of excluding a student from
in-person
school for l4 days if the student presents with COVID-like symptoms violates Article
l, Section ll of the Indiana Constitution. (Complaint, para. 193). Plaintiffs argue that
requiring the student to provide otherwise private information, i.e. proof of
vaccination, proof of another diag‘losis, in order to be able to attend school in-person
violates the student’s fundamental right of privacy. (Complaint, para. 195- 196, 200.)

The School Defendants respond that Plaintifls’ claim fails to state a claim for which
relief may be granted because the students are not required to obtain a COVID test or
provide proof of having been vaccinated. (School Defts’ Memo in Support, p. 19).
However, the School Defendants’ response fails to acknowledge that a student will be
excluded from in—person learning for a period of 14 days if the student refuses to
provide personal information about their medical condition, medical testing or medical
treatment (vaccination). In other words, a student must choose between being
excluded from in-person learning and having to provide rather personal information
about the student’s medical condition, medical treatment and / or medical testing.

It may be that there exists a rational basis for excluding a student from the in-person
learning; however, that is a determination to be made only after considering evidence.
The Court finds that the School Defendants have not met their burden to prove that on
the face of the pleadings the complaining party is not entitled to relief on Count 8.

Accordingly, the Court must deny the Motion to Dismiss as to Count 8.

5
The Court is uncertain as to what is the actual policy for exclusion of that student who has been in close contact
with someone with COVID or presumed to have COVID. In paragraph 176 of the
Complaint, Plaintiffs state that a
student must be excluded “unless they undergo compelled testing or evaluation, or
‘voluntarily’ present proof of
vaccination”. In paragraphs 177 and 188, the language used is “involuntary testing or treatment”. The word
“evaluation” is dropped and the word “treatment” is used. The Court sees a significant difference between an
evaluation and treatment especially given Plaintiffs’ argument that policy of exclusion unless vaccinated or
being
treated violates the Plaintiffs’ right to religious and /or medical exemptions. The Court considers evaluation to
contemplate a process involving something more diagnostic rather than a course of treatment.
 Conny Defendants Motion to Dismiss
The County Defendants contend that they should be dismissed on Counts l, 2, 4, 5, 8
and 9 because these Counts are “mainly directed to the State Defendants, and
only
implicate the County Defendants if the decisions, orders and policies of the State
Defendants are unconstitutional.” (County Defts’ Memo in Support, p. 4). As to Counts
1, 2 and 9, the County Defendants’ contentions are similar to the School Defendants’
claim that Counts 1, 2 and 9 do not pertain to the School Defendants.

As to Count 1, the Plaintifi‘s allege that the County Defendants “rely on

authority
delegated from the Governor” (Complaint, para. 79) and that the Governor has issued
executive orders exceeding his authority under the Emergency
Management and
Disaster Law (“EMDL”). (Complaint, para. 78). Subsequently, the Plaintiffs contend that
the executive order, or orders, issued by the Governor
authorizing the County
Defendants to establish and enforce policies for the mandatory use of masks, establish
contact tracing and quarantine students are invalid and of no legal efiect.

The Plaintifls request that the Court issue a declaratory

judgnent declaring that the
Governor lacks authority to issue orders to local officials to establish and enforce
policies for the mandatory use of masks, establish contact tracing and quarantine
students, and as such, the policies being established and enforced by
Defendants are invalid. The Plaintifis further request that the Court issue an County
injunction
prohibiting the implementation and enforcement of the said policies. Count l requests
relief from the actions of all of those Defendants who base their actions on
the

'....;.-‘—-.-— m-
Governor’s executive orders, including the County Defendants.

‘
Accordingly, as to Count 1, the Court finds that County Defendants have failed to
demonstrate the County Defendants are entitled to the dismissal of Count 1 on the basis
that Count 1 is mainly directed to the State Defendants, and
only implicates the County
Defendants if the decisions, orders and policies of the State Defendants are
unconstitutional. County Defendants have failed to show that Plaintiffs are not entitled
to the relief requested.

Count 2
Plaintifl's contend that the EMDL violates Article 3, Secfion 1 of the Indiana Constitution,
the “Distribution of Powers Clause”.

Paragaph 94 of the Complaint claims that to the extent that the Governor has been
conferred the authority to establish and enforce policies for the
mandatory use of masks,
establishing contact tracing and the quarantining of students pursuant to the
provisions of the EMDL, the Governor’s directives are unconstitutional. Since the
Complaint specifically requests the Court enjoin the County Defendants from complying
with the Governor’s directives issued pursuant to the EMDL, the Court
the County Defendants’ argument that Count 2 is disagrees with
only directed to the State Defendants.
While it’s true that Count 2 is addressing the
constitutionality of the EMDL and that
the State Defendants will likely take the lead in
addressing the issue, Count 2 still
involves and impacts the County Defendants.
 Accordingly, as to Count 2, the Court finds that County Defendants have failed to
demonstrate the County Defendants are entitled to the dismissal of Count 2 on the basis
that Count 2 is mainly directed to the State Defendants, and only implicate the
County
Defendants if the decisions, orders and policies of the State Defendants are
unconstitutional. County Defendants have failed to show that Plaintifi's are not entitled
to the relief requested.

COIJM 3

The County Defendants claim that Count 3 should be dismissed as to the

County
Defendants because the policies being complained of are those of NACS and those
policies don’t implicate the County Defendants. (County Defts’ Memo in Support, p. 4).
In addition, the County Defendants contend that as to Plaintiffs’ claims that the
policy
of mandatory masldng violates Article l, Section 12 of the Indiana
Constitution, Count
3 fails to state a claim for which relief may be granted because
(l) a rational basis exists
for enforcing the policy of mandatory masking, and the
(2) County Defendants are vested
with the authority to implement a policy of mandatory masking pursuant to I.C. 16-20-
1—24 (Indiana Epidemic Statute).

The Court incorporates by reference its opinion in School Defendants’ Count 3 in which
the Court finds that Plaintiffs’ allegation in Count 3 that the School Defendants’
policy
of requiring that students wear masks while attending classes and other school activities
violates Article l, Section 12 of the Indiana Constitution, fails to state a claim for which
relief may be granted.

The Court also incorporates by reference its opinion in School Defendants’ Count that
3,
Plaintiffs’ allegation that the School Defendants’ policy of

.
requiring that students wear
masks while attending classes and other school activities violates Article
of the Indiana Constitution because it
l, Section l2
unconstitutionally impinges on the students’ right
to refuse medical treatment, fails to state a claim for which relief
may be granted.
Accordingly, as to the County Defendants, Count 3 should be dismissed because it fails
to state a claim for which relief may be ganted as to the
County Defendants, as well as
the School Defendants. The Court does not address the merits of
County Defendants’
contention that the County Defendants are vested with the
authority to implement a
policy of mandatory masking pursuant to I.C. 16-20-1-24 (Indiana Epidemic Statute).

Count 4
Plaintiffs’ Count 4 alleges that pursuant to I.C. 20-34—3-2 students “have a
right to a
religious exemption from medical treatment” (Complaint, para. l 17,126) and that
mandatory masldng constitutes medical treatment that is subject to the provisions of
I.C. 20-34-3-2 (Complaint, para. 118-122).

The County Defendants claim that Count 4 should be dismissed as to the

Defendants because the policies being complained of are those of NACS andCounty those
policies don’t implicate the County Defendants. (County Defts’ Memo in Support, p. 4).
In addition, the County Defendants contend that as to Plaintiffs’ claims that the
of mandatory masking violates Article 1, Section l2 of the Indiana policy
Constitution, Count
4 fails to state a claim for which relief may be granted because ( 1) a rational basis em’sts
for enforcing the policy of mandatory masldng, and (2) the County Defendants are vested
with the authority to implement a policy of mandatory masking pursuant to I.C. 16-20-
1-24 (Indiana Epidemic Statute). The County Defendants do not specifically address the
Plaintifls’ claim that the policy of mandatory masking in the schools violates I.C. 20-34-
3-2(a).
The Court incorporates by reference its opinion in School Defendants’ Count 4 in which
the Court finds that Plaintifl’s Count 4 fails to state a claim for which relief may be
granted because I.C. 20~34-3 and I.C. 20-34-4 are not applicable to the NACS’s policy
of mandatory masking in NACS schools.

The Court does not address the merits of County Defendants’ contention that that Count
4 should be dismissed as to the County Defendants because the
policies being
complained of are those of NACS and those policies don’t implicate the County
Defendants. (County Defts’ Memo in Support, p. 4), or the County Defendants’
contention that as to Plaintifi's’ claims that the policy of mandatory masking violates
Article 1, Section 12 of the Indiana Constitution, Count 4 fails to state a claim for which
relief may be granted because (1) a rational basis exists for
enforcing the policy of
mandatory masking, and (2) the County Defendants are vested with the authority to
implement a policy of mandatory masking pursuant to I.C. 16-20-1-24 (Indiana
Epidemic Statute).

Count 5
Count 5 alleges that the School Defendants, relying upon guidance from State
Defendants and/ or County Defendants, impose mandatory
quarantines excluding
students from school. Plaintifls maintain that NACS lacks
authority to exclude students
from attending on-campus schooling and activities because the State
Defendants
and/ or the County Defendants are violating I.C. 16-41-9 et seq.
The County Defendants claim that Count 5 should be dismissed as to the
County
Defendants because the policies being complained of are those of NACS and those
policies don’t implicate the County Defendants. (County Defts’ Memo in Support, p. 4).

Paragaphs 128, 129, and 136 of the Complaint allege that County Defendant, Allen
County Health Department (ACHD) and the State Defendants have provided guidance

.;
to NACS that led to the NACS imposing a
policy of mandatory masking. The Plaintiffs
allege that the ACHD provided Verbal instructions to NACS, both in meetings between
local superintendents and ACDH’s Commissioner and additional
guidance on a case-
by-case basis. The NACS administration is efl'ectively operating as an enforcement arm
of ACDH.” (Complaint, para. 136).

In order to be entitled to a dismissal on a Trial Rule 12(B)(6) Motion to

Dismiss, the
County Defendants have the burden to prove that it is clear on the face of the pleadings
that the complaining party is not entitled to relief. The County Defendants have not
carried that burden as to Count 5. County Defendants are not in a
position to counter
..;..

the Plaintiffs’ pleading without ofi'ering evidence.

. ..
Accordingly, the Court finds that the County Defendants’ Mou'on to Dismiss Count 5
should be denied.

Count 6
In Count 6, Plaintiffs allege that “the Defendants’ quarantine
policies” lack legal
authority and are unlawful. Specifically, Plainu'fi's contend that “state imposed,
mandatory quarantines of healthy students” and the contact-tracing program are
unlawful and unconstitutional. (Complaint, para. 163-167). Further, Plaintiffs
allege
that contact tracing and quarantining of students suspected of having or
being exposed
to COVID is based on “pure speculation” and that the contact
tracing progam fails to
provide adequate notice and the opportunity for a hearing before imposing restrictions
on a student. (Complaint, para. l60-161,169).

The County Defendants claim that Count 6 should be dismissed as to the

County
Defendants because the policies being complained of are those of NACS and those
policies don’t implicate the County Defendants. (County Defts’ Memo in Support, p. 4).
In addition, the County Defendants contend that as to Plaintifl's’ claims that the
policy
of quarantining and contact tracing violates Article l, Section 12 of the Indiana
Constitution, Count 6 fails to state a claim for which relief may be gamed because (1)
a rational basis exists for enforcing the policy of quarantining and contact
tracing, and
(2) the County Defendants are vested with the authority to implement a policy of
quarantining and contact tracing pursuant to I.C. 16-20-1-24 (Indiana Epidemic
Statute).

County Defendants argue that Count 6 should be dismissed because the County
Defendants had a rational basis to exclude students. (County Defts’ Memo in Support,
p. 6). The review utilized for a Trial Rule 12(B)(6) motion requires the Court review the
pleadings in a light most favorable to the non-moving party, with every reasonable
inference drawn in the non-moving party’s favor. In reviewing the
pleadings, this Court
cannot conclude that the County Defendants had a rational basis to exclude students.
The Plaintiffs allege that the Christman students and other students were excluded from
attending school based upon speculation, while the County Defendants contend that
the students’ exclusion from school is based on a policy in which the
policymaker, or
policymakers, had a rational basis for preventing the affected student, or students, from
exercising their right to receive an education in an in-person setting.
At this stage of the litigation, the Court has not been provided the evidence to explain
the rational basis claimed by the State Defendants, County Defendants and or the
School Defendants to justify the quarantine of the Christman children.

The County Defendants have the burden to prove that it is clear on the face of the
pleadings that the Plaintifis are not entitled to relief. The County Defendants have not
carried that burden as to Count 6.

Accordingly, the Court must deny the Motion to Dismiss as to Count 6.

 Count 7
In Count 7 the Plaintiffs allege that the School Defendants’ policy of excluding a
student who is a “close contact” of an actual or presumed COVID case unless that
student undergoes “medical testing or treatment” or provides “proof of vaccination”
violates I.C. 16-39-1-1 et seq. (Complaint, para. 176). Plaintiffs contend that the policy
“creates a two-tier system favoring Vaccinated students’ over ‘unvaccinated students’.”
(Complaint, para. 180). In addition, Plaintifls contend that the above said policy
violates their right to religious and / or medical exemption under I.C. 20-34-3-2 and
I.C. 20-34-2-3. (Complaint, para. 178-179, 186-187).

The County Defendants claim that Count 7 should be dismissed as to the County
Defendants because the policies being complained of are those of the NACS and those
policies don’t implicate the County Defendants. (County Defts’ Memo in Support, p. 4).
The Court agrees. The only allegation as to any of the County Defendants is in
Paragaph 190 of the Complaint. That paragraph simply states that the “ACDH, NACS,
and other Defendants cannot enforce a policy that violates the Vaccine Passport Ban.”

Accordingly, the Court finds that the County Defendants’ Motion to Dismiss as to
Count 7 should be granted.

Count 8

In Count 8, Plaintiffs allege that the policy of excluding a student from in-person
school for l4 days if the student presents with COVID-like symptoms violates Article
l, Section 11 of the Indiana Constitution. (Complaint, para. 193). Plaintifl's argue that
requiring the student to provide otherwise private information, i.e. proof of
vaccination, proof of another diagiosis, in order to be able to attend school in-person
violates the student’s fundamental right of privacy. (Complaint, para. 195-196, 200.)

The County Defendants claim that Count 8 should be dismissed as to the County
Defendants because the policies being complained of are those of NACS and those
policies don’t implicate the County Defendants. (County Defts’ Memo in Support, p. 4).

As to the County Defendants, Paragraph 197 of the Complaint alleges that NACS’s policy
concerning contact tracing “relies on guidance from ACDH and the Department of
Health” and the Complaint requests a declaratory judgment and injunctive relief.
Facially, the Complaint states a claim of relief that may be granted.
The Court finds that the County Defendants have not met their burden to prove that
the Plaintifi‘s are not entitled to relief on Count 8. a»

Accordingly, the Court must deny the Motion to Dismiss as to Count 8.

Count 9

The County Defendants claim that the allegations of Count 9 are mainly directed to the
State Defendants and therefore should be dismissed as to the County Defendants.
Count 9 appears to be similar to Plaintifi‘s’ claim in Count 2 questioning the
constitutionality of the Govemor’s directives to public health oflicials and school oflicials
authorizing them to establish and enforce policies for the mandatory use of masks,
establishing contact tracing and the quarantining of students. Count 2 addresses the
constitutionality of the EMDL; however, Count 9 addresses the manner in which the
Governor applies the EMDL. Plaintiffs allege in Count 9 that the Governor violates Article
1, Section 23 of the Indiana Constitution by placing greater restrictions on schools than
the restrictions the Governor has imposed on non-educational settings. Paragraph 207
makes reference to “Defendants”, which includes the County Defendants and the School
Defendants, and like Count 2, Plaintifi’s Complaint requests the Court enjoin both the
County Defendants and the School Defendants from complying with the Governor’s
directives issued pursuant to the EMDL.

Accordingly, as to Count 9, the Court finds that County Defendants have failed to
demonstrate the County Defendants are entitled to the dismissal of Count 9 on the basis
that Count 9 is mainly directed to the State Defendants, and only implicate the County
Defendants if the decisions, orders and policies of the State Defendants are
unconstitutional. County Defendants have failed to show that Plaintiffs are not entitled
to the relief requested.

Count 10

In Count 10 the Plaintifis allege that the contact tracing and quarantine policies imposed
by the Department of Health and the ACDH violate the Fourth Amendment of the United
States Constitution and therefore Plaintiffs are entitled to injunctive relief against
County Defendant, Dr. Sutter, pursuant to 42 U.S.C. § 1983. (Complaint. Para. 2 l6-
2 18).

The County Defendants request that Count 10 be dismissed as to Dr. Matthew Sutter,
because in order to be individually liable for damages, Dr. Sutter must have personal
involvement in the deprivation of the Plaintifis’ constitutional rights. However, in this
case, the Plaintiffs are not seeking damages from Dr. Sutter. The Plaintiffs are seeking
injunctive relief that would affect Dr. Sutter only in his omcial capacity as the
Commissioner of the ACHD.

Count 10 may not be dismissed for failure to state a claim upon which relief can be
ganted unless it is clear on the face of the complaint that the Plaintiffs are not entitled
to relief. It is the burden of Dr. Sutter to prove that Count 10 fails to state a claim for
relief. Dr. Sutter has failed to meet the burden. The Court finds that as to Dr. Sutter,
the Plaintifl's have stated a claim for which relief could be granted.

Accordingly, the Court should deny Dr. Sutter’s Motion to Dismiss Count 10.

WHEREFORE, as to the Defendants, Allen County Department of Health and Matthew

Sutter, M.D., in his oflicial capacity as Commissioner of the Allen County Department
of Health’s Motion to Dismiss, the Court grants, in part, the Motion to Dismiss as to
Counts 3, 4 and 7. The Court denies the Motion to Dismiss as to Counts 1, 2, 5, 6, 8,
9 and 10.
FURTHER, as to the Defendants, Northwest Allen County Schools, Chris Himsel, Ph.D.,
in his official capacity as Superintendent of the Northwest Allen County Schools, Tanya
Pickett, in her official capacity as Assistant Principal of Carroll High School, Northwest
Allen County Schools Board of Trustees, Elizabeth Hathaway, in her official capacity as
Vice President of the Northwest Allen County Schools Board of Trustees, Kristi Schlatter,
in her oflicial capacity as Secretary of the Northwest Allen County Schools Board of
Trustees, and Ronald Felger, in his official capacity as member of the Northwest Allen
County Schools Board of Trustees’ Motion to Dismiss, the Court grants, in part, the
Motion to Dismiss as to Counts 3, 4 and 7. The Court denies the Motion to Dismiss as
to Counts l, 2, 5, 6, 8, and 9.

On Count 10, as to the Defendants, Northwest Allen County Schools and Chris Himsel,
Ph.D., in his ofiicial capacity as Superintendent of the Northwest Allen County Schools
the Court denies the Motion to Dismiss.

DATE: January 12, 2022

J.
ALLEN SUPE