State v. Burckhard

• Court: North Dakota Supreme Court
• Writing for the Court: SANDSTROM; VANDE WALLE; MESCHKE
• Citation: State v. Burckhard, 579 N.W.2d 194, 1998 ND 121 (N.D. 1998)
• Decision Date: 04 June 1998
• Docket Number: No. 970275,970275
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Leonard Wayne BURCKHARD, Defendant and Appellee. Criminal

Page 194

579 N.W.2d 194

1998 ND 121

STATE of North Dakota, Plaintiff and Appellant, v. Leonard Wayne BURCKHARD, Defendant and Appellee.

Criminal No. 970275.

Supreme Court of North Dakota.

June 4, 1998.

Robin Huseby, State's Attorney, Valley City, for plaintiff and appellant.

Robert G. Hoy, West Fargo, for defendant and appellee.

SANDSTROM, Justice.

¶1 The State appealed from a district court order dismissing for lack of subject matter jurisdiction a criminal complaint against Father Leonard Burckhard. We hold the court's exercise of jurisdiction over prosecution of theft charges against Burckhard does not require excessive government entanglement in religious affairs in violation of the First Amendment of the United States Constitution or Article I, Section 3, of the North Dakota Constitution. We, therefore, reverse and remand for a trial on the merits.

I

¶2 Burckhard was a parish priest for St. Catherine's Church in Valley City. The church is within the Fargo Diocese of the Roman Catholic Church. St. Catherine's Church is a "juridic person" under the canon law of the Roman Catholic Church and is also a North Dakota corporation. The State filed a criminal information against Burckhard, alleging he committed theft of property, a class B felony, in violation of N.D.C.C. §§ 12.1-23-02(1) and 12.1-23-05(1). The complaint alleges Burckhard "knowingly took and exercised unauthorized control over money in excess of $100,000.00 belonging" to the church and "did spend money on personal matters including, for example, the payment of personal credit cards, payments to various personal stock brokers, payments for unauthorized personal bills, payments for sporting equipment, payments to relatives, and payments for fishing trips, all with intent to deprive St. Catherine['s] Church of said money."

¶3 Burckhard moved to dismiss the complaint under N.D.R.Crim.P. 12(b), alleging: (1) the court did not have subject matter jurisdiction, because assumption of jurisdiction would involve excessive entanglement in religious affairs in violation of the Establishment Clause and N.D. Const. Art. I, § 3; (2) Burckhard had legal authority of the funds at issue under the regulations and canons of the Roman Catholic Church; and (3) the criminal prosecution was inappropriate under State v. Brakke, 474 N.W.2d 878, 882 (N.D.1991).

¶4 The district court dismissed the complaint for lack of subject matter jurisdiction, explaining:

"One of the principles upon which this country was founded was separation of church and state....

"Because of the unique position that churches and religious organizations have in this country the courts have refused to exercise jurisdiction in matters involving theological controversy, church discipline, and ecclesiastical government. The courts have left those matters to the church to resolve.

* * * * * *

"In any theft case one of the issues that has to be resolved is the authority of the person charged. In order to do that the relationship between the victim of the alleged crime and the person charged has to be examined.....

"In the Roman Catholic Church, the authority that a priest has and the relationship that the priest has with the church is defined by the code of cannon [sic] law....

* * * * * *

"This type of determination, requiring interpretation of cannon [sic] law, is the kind that the North Dakota Supreme Court and the United States Supreme Court has said civil courts should abstain from. Matters of theological controversy, church discipline, and ecclesiastical government are best left to the church to resolve...."

¶5 The State appealed from the order dismissing the criminal complaint.

¶6 The district court had apparent jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. §§ 29-01-12 and 29-28-07.

II

¶7 On appeal, the State asserts the district court erred in dismissing the criminal complaint, because prosecution of the charges against Burckhard does not require excessive entanglement in religious affairs in violation of the federal or state constitutions.

A

¶8 N.D.R.Crim.P. 12(b) provides: "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." We described the purpose and limitations of motions to dismiss under this rule in State v. Howe, 247 N.W.2d 647, 652 (N.D.1976):

"[T]he purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered. The court is obliged to confine itself to the face of the information. Further, for purposes of the motion, all well-pleaded facts are taken to be true." (Citations omitted.)

The criminal complaint alleged Burckhard exercised unauthorized control of church funds. A motion to dismiss is not a proper procedural vehicle to determine the factual questions regarding Burckhard's authority to expend church funds or whether he made unauthorized expenditures with the funds.

¶9 Burckhard's jurisdictional claim, however, does not seek to resolve these factual questions. Burckhard argues the federal and state constitutions deprive the court of subject matter jurisdiction to resolve these factual issues, because their resolution would involve impermissible excessive entanglement of government in religious affairs. This issue of whether the federal or state constitutions deprive the court of subject matter jurisdiction is a question of law. Basich v. Board of Pensions (ELCA), 540 N.W.2d 82, 85 (Minn.App.1995), cert. denied, --- U.S. ----, 117 S.Ct. 55, 136 L.Ed.2d 18 (1996). We conclude it is, therefore, an appropriate issue for resolution under N.D.R.Crim.P. 12(b).

B

¶10 The First Amendment to the United States Constitution provides, in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The First Amendment was made applicable to the states through the Fourteen Amendment in Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); and Everson v. Board of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). The Establishment Clause was intended to erect "a wall of separation between church and State." Reynolds v. United States, 98 U.S. (8 Otto) 145, 164, 25 L.Ed. 244 (1878). Similarly, N.D. Const. Art. I, § 3, provides, in part: "[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state...." This provision affords protections similar to those provided by the Establishment Clause. Bendewald v. Ley, 39 N.D. 272, 168 N.W. 693, 696 (1917) (the First Amendment and this provision of the North Dakota Constitution are "to the same effect").

¶11 In Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted), the United States Supreme Court outlined a three-prong test for determining whether a policy or statute violates the Establishment Clause: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ....; finally, the statute must not foster 'an excessive government entanglement with religion.' "

¶12 Burckhard does not argue the criminal theft statute has no secular legislative purpose, nor does he argue the statute has a primary effect of either advancing or inhibiting religion. Rather, Burckhard claims prosecution of the charges brought against him under this statute involves questions about his authority over church monies which, in resolving, would require excessive entanglement by the courts into the affairs of the church in violation of this third prong for testing state action under the Establishment Clause. Burckhard's argument relies upon several United States Supreme Court civil cases, dealing with separation of church and state and defining limitations imposed by the Establishment Clause.

C

¶13 The seminal case regarding separation of church and state is Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871). In Watson members of a local Presbyterian church in Louisville, Kentucky, became involved in a dispute over the issue of slavery and divided into two distinct bodies, each claiming the exclusive right to the church property. The Court announced a rule of deference by the civil courts when the religious congregation holding disputed property is a subordinate member of a hierarchical church organization: ¹

"In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them."

Watson, 80 U.S. at 727. Applying these principles, the Court concluded the group which had wholly separated itself from the church organization and now denied its authority and denounced its actions had no right to the church property. The Court did not declare civil courts were without jurisdiction to resolve church property disputes. Instead, it admonished the courts, under separation of church and state principles, to decide church property disputes by paying homage to the pronouncements and decisions of the highest church authority or tribunal.

¶14 These principles were adhered to and further explained in Gonzalez v. Roman Catholic Archbishop of...