FOR PUBLICATION

ATTORNEYS FOR APPELLANT:		ATTORNEYS FOR APPELLEES:

RONALD G. SHEFFER				DAVID K. HERZOG

CARL B. BOYD, JR.				BEN W. BLANTON

BRIAN F. HAARA				SCOTT D. HIMSEL

Sheffer - Hoffman					Baker & Daniels

Henderson, Kentucky				Indianapolis, Indiana	

	IN THE

	COURT OF APPEALS OF INDIANA

DR. CARMEL McENROY,	 				)

			 )

	Appellant-Plaintiff,	 )

			 )

		vs.	 )	No.  74A01-9803-CV-123

			 )

ST. MEINRAD SCHOOL OF THEOLOGY,	 )

RT. REVEREND TIMOTHY SWEENEY, O.S.B.,	 )

and REVEREND EUGENE HENSELL, O.S.B.,	 )

			 )

	Appellees-Defendants.	 )

	APPEAL FROM THE SPENCER CIRCUIT COURT

	The Honorable Wayne A. Roell, Judge

	Cause No.  74C01-9705-CP-193

	(HanddownJuneJune 24___, 1999 Date)

	OPINION - FOR PUBLICATION

RUCKER, Judge

	Appellant-Plaintiff Dr. Carmel McEnroy ("Dr. McEnroy") filed an action against St. Meinrad School of Theology, Reverend Timothy Sweeney, and Reverend Eugene Hensell

(collectively referred to as "Defendants"), asserting breach of contract, tortious interference

with contractual relations and breach of an implied covenant of good faith and fair dealing. 

Defendants responded by filing a motion to dismiss for lack of subject matter jurisdiction,

asserting that resolution of this action would excessively entangle the court in religious

matters in violation of the First Amendment.  The trial court granted Defendants' motion. 

Dr. McEnroy raises four issues for our review, which we consolidate and restate as did the

court commit reversible error in so doing.  We affirm.1.  

	The facts giving rise to this appeal are these.  Dr. McEnroy was employed as a

professor of Catholic theology and doctrine at Saint Meinrad School of Theology ("Saint

Meinrad").  Saint Meinrad is a Catholic Seminary which serves to train candidates for the

priesthood and other ministries of the Roman Catholic Church.  At all times relevant to this

action, the archabbot of St. Meinrad Archabbey was Father Timothy Sweeney ("Archabbot

Sweeney").  Father Eugene Hensell ("Father Hensell") was President-Rector of Saint

Meinrad. 	

	In the spring of 1994, Pope John Paul II issued an Apostolic Letter declaring the issue

of the ordination of women as priests resolved and no longer open to debate.  Several months

after the statement was issued, Dr. McEnroy joined 1,500 others in signing an open letter

opposing the Pope's teachings on the subject.  After reading the open letter in the National Catholic Reporter, Archabbot Sweeney determined that Dr. McEnroy had become "seriously deficient" in her duties as a seminary professor by publicly dissenting from the Pope's

teachings, and that the Church's canon law required that he remove her from the faculty at

Saint Meinrad.  Pursuant to his jurisdiction over Saint Meinrad provided by the Statement

of Governance and contained in the Faculty Handbook, Archabbot Sweeney directed Father Hensell to so remove Dr. McEnroy.  He did so and as a result, Dr. McEnroy filed suit against

Defendants, asserting breach of contract, intentional interference with contractual relations,

and breach of an implied covenant of good faith and fair dealing.2  Defendants responded by filing a motion to dismiss pursuant to Ind. Trial Rule 12(B)(1).  The motion argued that the

court lacked subject matter jurisdiction "because [resolution of] these claims would require

the Court to decide religious issues regarding the Church's good faith motivation and

doctrinal basis for removing her under the canon law."  R. at 38.  After a hearing, the trial

court granted the motion.  This appeal ensued in due course. 

	A motion to dismiss for lack of subject matter jurisdiction presents a threshold

question concerning the court's power to act.  Tapia v. Heavner, 648 N.E.2d 1202, 1205 (Ind. Ct. App. 1995).  When confronted with a motion to dismiss based on a lack of subject matter

jurisdiction, the trial court must decide upon the complaint, motion and any affidavits or

other evidence submitted whether it possesses authority to further adjudicate the action. 

Common Council of City of Hammond v. Matonovich, 691 N.E.2d 1326, 1328 (Ind. Ct. App. 1998), trans. denied.  Unlike ruling on a motion for summary judgment, the trial court may weigh evidence and resolve factual disputes when ruling on a motion for subject matter

jurisdiction.  Tapia, 648 N.E.2d at 1205.  Where, as here, the facts are not in dispute, we review the trial court's decision de novo.  Matonovich, 691 N.E.2d at 1328.

	Citing the Supreme Court's decision in Employment Div., Dep't of Human Resources v. Smith, Dr. McEnroy contends the trial court could avoid violating the First Amendment's prohibition against excessive entanglement by applying neutral principles of contract law.

494 U.S. 872, 110 S. Ct. 1595, 108 L.Ed.2d 876 (1990) (civil courts do not inhibit the free

exercise of religion where neutral principle of law may be applied).  Dr. McEnroy premises

this contention on the twin assertions that the contract granting her continuing appointment

status and the Faculty Constitution provide the exclusive circumstances under which she may be dismissed, and that the issue may be resolved without reference to either church law or

doctrine.  Saint Meinrad counters that Dr. McEnroy's contract also incorporated the terms of

the Faculty Handbook, which included the Statement on Governance.  The Statement on Governance in turn "provides that the seminary operates through an hierarchical model in the

administration of justice as specified by the Church's canon law and its Program of Priestly Formation ("PPF"), and that the Archabbot retains direct jurisdiction over Saint Meinrad within that model," including the authority to remove a seminary professor who is

determined to be seriously deficient.  R. at 434. 

	The Supreme Court has long held that the First Amendment requires civil courts to

refrain from interfering in matters of church discipline, faith, practice and religious law.  Watson v. Jones, 80 U.S. (13 Wall) 679, 727, 20 L.Ed. 666 (1871).  Thus, civil courts are precluded from resolving disputes involving churches if "resolution of the disputes cannot

be made without extensive inquiry . . . into religious law and polity. . . ."  Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S. Ct. 2372, 2380, 49 L.Ed.2d 151 (1976).  Consequently, the First Amendment proscribes intervention by secular courts into

many employment decisions made by religious organizations based on religious doctrines

or beliefs.  Accordingly, personnel decisions are protected from civil court interference

where review by civil courts would require the courts to interpret and apply religious doctrine

or ecclesiastical law.  Milivojevich, 426 U.S. at 696, 96 S. Ct. at 2372. (review of church's decision to defrock bishop impermissible where resolution required interpretation of internal

church procedures).

	The contract granting Dr. McEnroy continuing appointment stated, in relevant part, 

"[t]he statements on academic freedom and responsibility, on appointment and dismissal

contained in the Faculty Constitution are among the terms of appointment."  R. at 283 (emphasis added).  Use of the term "among" here creates an ambiguity made evident upon

examination of the arguments raised by the parties.  Defendants contend the term implies the

existence of additional terms, specifically the Faculty Handbook and Statement on Governance.  On the other hand, Dr. McEnroy, argued at oral argument before this court Oon the other hand, argues that the contract and Faculty Constitution provide the sole terms of her contract.3  At oral argument before this court, Dr. McEnroy stated that

When questioned about the Pphrase "among otthe ternmsms of appointment," could not refer to adocuments not specifically

mentioned, and therefore refers to the terms of the terms of appointment and tdismissal as set for thth in the Faculty Constutititutiopn.   referes to theose ternmsms as set forhth in the Dr. McEnroy  According to Dr. MCenroy  At oral argument before this court,

Dr. McEnroy When confronted with an ambiguous contract, this court attempts to determine the intent of the parties at the time of formation as disclosed by the language used

to express the parties' respective rights and duties.  Barrington Mgmt. Co., Inc. v. Draper Family Ltd., 695 N.E.2d 135, 140 (Ind. Ct. App. 1998).  Where, as here, the ambiguity arises from the language employed rather than because of extrinsic facts, its construction is a

question of law to be determined by the court.  I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695 N.E.2d 1030, 1034 (Ind. Ct. App. 1998), trans. denied.  We will read the contract as a whole and accept an interpretation which harmonizes and gives effect and

meaning to the contract's words and phrases.  Barrington, 695 N.E.2d at 140. 

	Applying these principles to the contract before us, we find that by declaring the

statement on academic freedom and responsibility contained in the Faculty Constitution to be "among the terms of appointment," the parties intended to signify that additional terms

were also to apply.  The contract does not state what additional terms were intended to apply

or their relation to those contained in the Faculty Constitution.  We observe, however, that the parties agreed before the trial court the Faculty Handbook, which includes among other things the Statement on Governance, was also incorporated into the contract at trial.  In light

of the Statement on Governance, resolution of Dr. McEnroy's claims would require the trial

court to interpret and apply religious doctrine and ecclesiastical law.  At a minimum, the trial

court would have to determine whether:  (1) Archabbot Sweeney properly exercised his

jurisdiction over Saint Meinrad, (2) Dr. McEnroy's conduct constituted public dissent or

caused her to be "seriously deficient," and (3) canon law required Archabbot Sweeney to remove Dr. Sweeney from her teaching position.  Because the trial court would be clearly

and excessively entangled in religious affairs in violation of the First Amendment, we find

no error.

	Judgment affirmed.

DARDEN, J., concurs.

SULLIVAN, J., concurs in result with opinion.

IN THE

COURT OF APPEALS OF INDIANA

DR. CARMEL McENROY,	)

			)

	Appellant-Plaintiff,	)

			)

		vs.	)	No. 74A01-9803-CV-123

			)

ST. MEINRAD SCHOOL OF THEOLOGY,	)

RT. REVEREND TIMOTHY SWEENEY, O.S.B.,	)

and REVEREND EUGENE HENSELL, O.S.B.,	)

			)

	Appellees-Defendants.	)

SULLIVAN, Judge, concurring in result

	While it may be patently discriminatory to terminate a tenured faculty member, who happens to be a Catholic, while not permitting termination of a tenured faculty member who

embraces a different religious faith, such discrimination is constitutionally protected.

	This anomalous and seemingly unjust result is dictated by the interpretation given

over the years to the prohibition against the judiciary from “interfering” in matters of

religious dogma or discipline.  This prohibition would seem to control even where the

discrimination is patent.  It requires us to affirm the finding that a faculty member is rendered

unfit to teach solely by dint of her public disagreement with a particular teaching of the Church.3  In this case, the teaching is that ordination of women is contrary to moral law as interpreted by the papal encyclical.  Furthermore, our decision is compelled whether or not

the divergence of philosophical or theological view is reflected in the classroom.

	Dr. McEnroy was terminated because her signature to the public letter, along with that

of some fifteen hundred others, rendered her, in the opinion of Archabbot Sweeney,

"'seriously deficient' in her duties as a seminary professor."  Slip op. at  3.  I find no evidence

permitting even an inference that Dr. McEnroy, by reason of her personal position on the

issue, had become less efficient or conscientious in her teaching methods or in the

presentation of the classroom subject matter within her duties.  Nevertheless, it was

concluded that the Church’s canon law required her removal.

	Be that as it may, this case rests upon the proposition that the Church may discipline

and sanction its own faithful as it sees fit without regard to concepts of discriminatory

conduct which would otherwise be unlawful.  This is deemed an internal hierarchical

discipline dispute in which the judiciary may not become involved. 

	It is for this reason that we are forbidden to apply common law contractual principles

to the matter of Dr. McEnroy’s tenured employment.  It is for this reason that I am compelled

to concur.