State v. Melin, 870290

• Decision Date: 21 July 1988
• Docket Number: No. 870290,870290
• Citation: 428 N.W.2d 227
• Parties: 48 Ed. Law Rep. 977 STATE of North Dakota, Plaintiff and Appellant, v. Jonathan MELIN, Sr., and Diana Melin, Defendants and Appellees. Crim.
• Court: North Dakota Supreme Court

Page 227

428 N.W.2d 227

48 Ed. Law Rep. 977

STATE of North Dakota, Plaintiff and Appellant, v. Jonathan MELIN, Sr., and Diana Melin, Defendants and Appellees.

Crim. No. 870290.

Supreme Court of North Dakota.

July 21, 1988.

James M. Vukelic, Sol. Gen., Office of Atty. Gen., Bismarck, for plaintiff and appellant.

Michael P. Farris (argued) and J. Michael Smith, Home School Legal Defense Ass'n, Great Falls, Va., and Gregory L. Lange, of Richardson, Isakson & Lange, Hazen, for defendants and appellees.

VANDE WALLE, Justice.

The State appealed from what the trial court termed a "judgment of not guilty," which was entered upon a dismissal of a complaint charging Jonathan and Diana Melin with violating the compulsory school-attendance law, Chapter 15-34.1, N.D.C.C. We reverse.

Jonathan and Diana Melin are the parents of Jonathan Melin, Jr. (Teddy). Teddy was seven years of age at the time the complaint in this case was filed. The complaint charged the Melins with failing to send Teddy to a public school pursuant to Section 15-34.1-01, N.D.C.C., without being excused from that requirement as permitted by the statutory exceptions to Section 15-34.1-01.

The Melins had been educating Teddy in their home using a curriculum provided by the Advanced Training Institute of America. Both of the Melins have bachelor's degrees. Jonathan has a bachelor of arts degree in Bible and pastorology, and Diana has a bachelor of science degree in Bible and nursing. However, neither of these degrees qualified the Melins to teach in North Dakota. See Section 67-02-02-02, N.D.Admin.Code. The Melins therefore were not certified to teach in North Dakota and thus could not comply with the private-school exception to the compulsory school attendance law under Section 15-34.1-03(1), N.D.C.C. ¹

Prior to trial the Melins and the State entered into a stipulation which provided that (1) the Melins resided within Oakes Public School District and that during the 1986-1987 school year the Melins had violated Section 15-34.1-01, (2) the Melins had been advised of their constitutional rights, including the right against self-incrimination, and that they had been advised of the provisions of Title 15-34.1, N.D.C.C., and (3) in return for the State's promise to not subpoena Teddy and its promise to not object to certain transcribed testimony and test results, the Melins stipulated to (1) and (2) above. Also prior to trial the Melins submitted a trial brief to the court in which they argued that, among other issues, the requirement that a teacher be legally certified by the State of North Dakota in order that a private-school exception be permitted infringed upon their right to freely exercise their religion provided by the First Amendment to the United States Constitution.

A trial to the court was held on July 8, 1987. At trial the State offered into evidence the stipulation. The State rested and the Melins then testified about their religious beliefs and the educational routine they utilized for teaching Teddy. The Melins introduced evidence through the testimony of Inge Pohl on the curriculum utilized by the Melins and on the educational progress made by Teddy. The Melins also introduced evidence concerning a study performed by the State Department of Public Instruction which considered possible changes in the compulsory school-attendance law, one such change being the requirement of a bachelor's degree rather than a teacher's certificate for the teaching of elementary-age children. No changes were adopted by the Legislature as a result of that study.

At the conclusion of the evidence the court allowed the State time in which to file a reply to the Melins' trial brief, and the court asked both parties to submit written arguments. Subsequently, on September 3, 1987, the court issued a memorandum opinion indicating that the "complaint must be dismissed" because the court found the requirement of teacher certification in the compulsory school-attendance law to be an unconstitutional infringement of the Melins' right to free exercise of religion. On the same date the court issued a "judgment of not guilty." It is from this judgment that the State appealed. ²

I

Initially we must consider the Melins' motion to dismiss the appeal. The Melins contend that a decision adverse to them would allow the State to twice place them in jeopardy for the same offense contrary to the directive of the Fifth Amendment to the United States Constitution.

The Fifth Amendment provides that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ..." It was made applicable to the States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The guarantee consists of three separate constitutional protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." [Footnote omitted.] North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664 (1969). ³ In this case the Melins claim that what the trial court termed a "judgment of not guilty" was an acquittal, and that a reversal of the trial court would subject them to a second prosecution for the same offense following that acquittal. We disagree.

Although the trial court termed its action a "judgment of not guilty," the mere use of those words did not establish the action as an acquittal. As we stated in State v. Flohr, 259 N.W.2d 293, 295 (N.D.1977):

"The question of what constitutes an 'acquittal' is not to be controlled by the form of a judge's ruling. United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Rather, one must look at the substance of the judge's ruling, whatever its label, and determine whether it actually represents a resolution of some or all of the factual elements of the offense charged. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)." [Emphasis added.]

See also State v. Hogie, 424 N.W.2d 630 (N.D.1988). Thus we must look to the substance of the trial court's action to determine whether it was an acquittal.

A review of the trial court's memorandum opinion accompanying the "judgment of not guilty" clearly indicates that the trial court was not resolving "some or all of the factual elements of the offense charged." The memorandum opinion is confined to an analysis of whether the requirement of teacher certification under Section 15-34.1-03(1) unconstitutionally infringed on the Melins' First Amendment right of free exercise of religion. As the trial court stated: "The only real issue in this 'home school' case manifestly remains the alleged abridgement and infringement of the Melins' rights under the free exercise clause to the First Amendment ..." The trial court determined that there was an infringement and concluded, "Therefore the complaint must be dismissed." Rather than an acquittal based on some or all of the facts, the trial court was dismissing the complaint because it determined the statutory requirement that a teacher be certified unconstitutionally infringed on the Melins' First Amendment right to the free exercise of religion.

The Melins confuse the factual determination inherent in a constitutional challenge under the Free Exercise Clause of the First Amendment with the determination of some or all of the factual elements of the offense charged which is required for an acquittal. In analyzing a challenge under the Free Exercise of Religion Clause we consider:

"(1) whether the activity interfered with by the state is motivated by and rooted in a legitimate and sincerely-held religious belief; (2) whether the parents' free exercise of religion has been burdened by the regulation, and the extent of or impact of the burden on their religious practices; and (3) whether the state has a compelling interest in the regulation which justifies the burden on the free exercise of religion and overrides the interest of the parents in exercising their religious practices. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); ..." State v. Patzer, 382 N.W.2d 631, 634 (N.D.1986), cert. denied 479 U.S. 825, 107 S.Ct. 99, 93 L.Ed.2d 50 (1986).

While the questions of whether a statute burdens a person's right to free exercise of religion and whether the State has a compelling interest justifying the burden are questions of law, the question of whether an activity is motivated by a sincerely held religious belief is a question of fact. Attorney General v. Bailey, 386 Mass. 367, 436 N.E.2d 139 (1982), cert. denied 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982); Roloff Evangelistic Enterprises, v. State, 556 S.W.2d 856 (Tex.Civ.App.1977), appeal dismissed 439 U.S. 803, 99 S.Ct. 58, 58 L.Ed.2d 96 (1978); People v. Mullins, 50 Cal.App.3d 61, 123 Cal.Rptr. 201 (1975). Thus, when the trial court considered whether the Melins' actions were motivated by a sincerely held religious belief, it was making a factual determination.

However, the factual determination which is critical to an acquittal concerns the facts relating to some or all of the elements of the offense charged. State v. Flohr, supra. Our statute defines the elements of an offense as

"a. the forbidden conduct; b. the attendant circumstances specified in the definition and grading of the offense; c. the required culpability; d. any required result; and e. the nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue." Sec. 12.1-01-03(1), N.D.C.C.

The Melins argue that their free-exercise-of-religion claim was a defense. However, a review of the comments to the corresponding provision to Section 12.1-01-03(1) in the proposed Federal Criminal Code from which our statute is derived [see State v....