People v. DeJonge, Docket Nos. 134296

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: MARILYN J. KELLY
• Citation: 67 Ed. Law Rep. 1298,470 N.W.2d 433,188 Mich.App. 447
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark DeJONGE and Chris DeJonge, Defendants-Appellants. (On Remand) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John and Sandra BENNETT, Defendants-Appellants. (On Remand) 188 Mich.App. 447, 470 N.W.2d 433, 67 Ed. Law Rep. 1298
• Docket Number: 134297,Docket Nos. 134296
• Decision Date: 15 April 1991

Page 433

470 N.W.2d 433

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark DeJONGE and Chris DeJonge, Defendants-Appellants. (On

Remand)

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John and Sandra BENNETT, Defendants-Appellants. (On

Remand)

Docket Nos. 134296, 134297.

188 Mich.App. 447, 470 N.W.2d 433, 67 Ed. Law Rep. 1298

Court of Appeals of Michigan.

Submitted Oct. 29, 1990, at Lansing.

Decided April 15, 1991, at 9:15 a.m.

Released for Publication June 21, 1991.

[188 MICHAPP 448] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Wesley J. Nykamp, Pros. Atty., and Mark A. Feyen, Asst. Pros. Atty., in Docket No. 134296, and John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Cr. Div., Research Training and Appeals, and Olga Agnello, Asst. Pros. Atty., in Docket No. 134297, for People.

David A. Kallman, Lansing, and Michael P. Farris, and Christopher J. Klicka, Paeonian Springs, Va., of the Home School Legal Defense Ass'n, for defendants.

Mark Brewer, and Paul Denenfeld, of counsel, Detroit, amicus curiae, for ACLU Fund of Michigan.

ON REMAND

Before DOCTOROFF, P.J., and MAHER and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

On remand from our Supreme Court, we have been asked to reconsider our opinion in People v. DeJonge, 179 Mich.App. 225, 449 N.W.2d 899 (1989). People v. DeJonge, 436 Mich. 875, 461 N.W.2d 365 (1990). We have undertaken the reconsideration in light of recent decisions of the United States Supreme Court and our Supreme Court's decision in Dep't of Social Services v. Emmanuel Baptist Preschool, 434 Mich. 380, 455 N.W.2d 1 (1990). We once again affirm defendants' convictions of violating the state compulsory school attendance[188 MICHAPP 449] law. M.C.L. Sec. 380.1561; M.S.A. Sec. 15.41561; M.C.L. Sec. 380.1599; M.S.A. Sec. 15.41599.

At issue is the question whether the state's requirement that nonpublic schools use state certificated teachers violates the DeJonges' right to free exercise of religion. Also at issue is the Bennetts' right to direct the education of their children.

In our previous opinion we concluded that the burden imposed on the religious beliefs of Mrs. DeJonge was minimal. Mrs. DeJonge did not believe that her religion prohibited her from hiring certificated teachers, and she failed to show she could not hire a certificated teacher who met her qualifications. DeJonge, 179 Mich.App. at 235, 449 N.W.2d 899. In addition, this state has a compelling interest in the quality of the education of its citizens which justifies the burden imposed on Mrs. DeJonge's religious beliefs.

We held, also, that the burden imposed on Mr. DeJonge's religious beliefs is much greater, as he believes it sinful to submit to state authority and employ certificated teachers. However, the state's compelling interest in the education of children raised within its boundaries justifies the burden imposed. We also concluded that the certification requirement was the least obtrusive means of achieving the state's interest. Since Mr. DeJonge believes that all state authority is a sin, there is no alternative for the state that would be less obtrusive. DeJonge at 235, 237, 449 N.W.2d 899.

The most recent United States Supreme Court case involving the Free Exercise Clause of the First Amendment is Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, 885-887 (1990). The majority there held that criminal laws which effectively burden a particular religious practice need not be [188 MICHAPP 450] justified by a compelling state interest if they are generally applicable and religion-neutral. The rule may not apply where constitutional protections in addition to the Free Exercise Clause are involved. Id. at ----, 110 S.Ct. at 1601, 108 L.Ed.2d at 887.

The instant case falls within the exception to the rule. It involves both the right of parents to direct the education of their children and the free exercise of religion. Thus, Employment Div. is not applicable and does not alter our prior holding that the burden in this case must be justified by some compelling state interest.

We consider next our Supreme Court's memorandum opinion in Emmanuel. There, the Court required the state not to enforce licensure requirements of the childcare organization act upon the program director of a preschool. M.C.L. Sec. 722.111 et seq.; M.S.A. Sec. 25.358(11) et seq. The Court held that the regulatory requirements violated the free exercise of defendants' religious beliefs. Emmanuel, 434 Mich. at 388-389, 455 N.W.2d 1.

The defendants in Emmanuel challenged the state's requirement that a program director complete classes in child development, child psychology or early childhood education and graduate from an accredited institution. Defendants' director did not meet the requirements. It was defendants' practice to select their preschool program director from a fundamentalist Christian college, because such colleges teach a philosophy of education based on the Bible. Some of these colleges forgo accreditation because of religious beliefs. Emmanuel, at 443, 455 N.W.2d 1.

In his concurring opinion, Justice Cavanagh stated that the regulation imposed a burden on the defendants' exercise of their religious beliefs. He assumed the state had a compelling interest in imposing minimal educational standards on preschool[188 MICHAPP 451] teachers. However he concluded that the regulation was not the least restrictive means of accomplishing the state's interest. The evidence suggested that the Department of Social Services had developed an alternative test to determine the sufficiency of a program director's educational credentials. On that basis, he found the regulation violated the free exercise of defendants' religious beliefs. Emmanuel, at 415-417, 455 N.W.2d 1.

Justice Griffin wrote a concurring opinion joined by Justices Riley and Levin. They concluded that the DSS had failed to show a...