State v. Pendleton

• Decision Date: 30 December 1994
• Docket Number: No. 478A93,478A93
• Citation: 451 S.E.2d 274,339 N.C. 379
• Court: North Carolina Supreme Court
• Parties: , 63 USLW 2426, 96 Ed. Law Rep. 775 STATE of North Carolina v. Alan Howard PENDLETON.

Page 274

451 S.E.2d 274

339 N.C. 379, 63 USLW 2426, 96 Ed.

Law Rep. 775

STATE of North Carolina v. Alan Howard PENDLETON.

No. 478A93.

Supreme Court of North Carolina.

Dec. 30, 1994.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., for the State.

Patterson, Harkavy and Lawrence by Martha A. Geer, Raleigh, Stewart and Hayes by Gerald W. Hayes, Jr., and Lytch, Tart and Fusco, P.A. by Phillip A. Fusco, Dunn, for defendant-appellant.

Robert A. Buzzard, Buies Creek, for Campbell University, amicus curiae.

Patterson, Harkavy and Lawrence by Burton Craige, Raleigh and Daniel H. Pollitt, Chapel Hill, for American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

MITCHELL, Justice.

On 12 April 1991, Officer Reed Jones of the campus police force of Campbell University observed the defendant, Alan Howard Pendleton, operating an automobile on a public highway near that university's campus in Buies Creek, North Carolina. Jones followed the defendant as the defendant traveled toward the campus. The defendant crossed the center line of the roadway several times and weaved back and forth within his lane of travel. Jones stopped the defendant and arrested him for driving while impaired in violation of N.C.G.S. § 20-138.1. On 26 June 1991, the defendant was convicted in District Court, Harnett County, of driving while impaired. He appealed to the Superior Court for trial de novo.

On 3 September 1991, the defendant filed a motion in the Superior Court, Harnett County, seeking dismissal of the charge against him on the ground that Chapter 74A of the General Statutes of North Carolina violated the First Amendment to the Constitution of the United States, and Article I, Sections 13 and 19, of the Constitution of North Carolina. Specifically, the defendant alleged that Chapter 74A was unconstitutional because it permitted employees of a religious institution to be commissioned and function as police officers and thereby authorized a religious institution to exercise the police power of the State. The defendant further alleged that by permitting the State--through its Attorney General--to delegate its police powers to a private, church-owned religious institution, Chapter 74A violated the constitutional separation of church and state because such a delegation "enables state authority to intervene in the church agency."

A hearing was held on the defendant's motion, during which uncontroverted evidence was introduced tending to show, inter alia, that Campbell University is closely affiliated with the Baptist State Convention of North Carolina. Campbell University operates a police force consisting of a captain and eight full-time officers. All of the officers of that police force were commissioned as police officers by the Attorney General of North Carolina acting under the provisions of Chapter 74A authorizing him to commission as policemen the employees of certain public and private institutions or companies. At the times relevant to this appeal, Ricky Symmonds was employed as a deputy sheriff by the Harnett County Sheriff's Department. While so employed, Symmonds also acted as the chief of Campbell University's campus police force. Officer Jones, the officer who arrested and charged the defendant Pendleton, was employed as a police officer by Campbell University. The defendant was an undergraduate student at Campbell University and resided in a campus dormitory.

On 29 April 1992, Judge Allen entered an order in the Superior Court, Harnett County, concluding that Chapter 74A was unconstitutional because it created an excessive entanglement of state and church, constituted an impermissible delegation of authority to a religious institution and was an establishment of religion. The order further concluded that the defendant's arrest and the evidence obtained as a result had been invalid, since they had resulted from an unconstitutional delegation and exercise of the State's police power. Based on these conclusions, the order of the Superior Court allowed the defendant's motion to dismiss. The State appealed to the Court of Appeals.

At all times pertinent to this appeal, former Chapter 74A provided ¹, inter alia:

Any educational institution ... whether State or private, ... may apply to the Attorney General to commission such persons as the institution ... may designate to act as policemen for it. The Attorney General upon such application may appoint such persons or so many of them as he may deem proper to be such policemen, and shall issue to the persons so appointed a commission to act as such policemen.

N.C.G.S. § 74A-1 (1989) (repealed by Session Laws 1991 (Regular Session, 1992), ch. 1043, § 8 (effective 25 July 1992)). Further, as the Court of Appeals stated in its opinion in the present case, former Chapter 74A also provided

that policemen commissioned under the Chapter shall possess all the powers of municipal and county police to make arrests for felonies and misdemeanors and to charge for infractions on property owned or controlled by their employers. N.C.Gen.Stat. § 74A-2(b). The authority of policemen who are employed by any college or university extends to the public roads passing through or immediately adjoining the property of the employer. N.C.Gen.Stat. § 74A-2(e)(1). In addition, the authority of such college or university policemen may be extended by agreement between the employer institution's board of trustees and the governing board of the municipality or county in which the institution is located. N.C.Gen.Stat. § 74A-2(e)(2) and (3).

State v. Pendleton, 112 N.C.App. 171, 175, 435 S.E.2d 100, 103 (1993). Applying the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Court of Appeals concluded:

Chapter 74A has a secular legislative purpose, its primary effect is neither to advance nor to inhibit religion, it does not foster an excessive entanglement with religion and it is not an unconstitutional delegation of the State's law enforcement authority.

Pendleton, 112 N.C.App. at 180, 435 S.E.2d at 106. The Court of Appeals held that Chapter 74A was constitutional, both on its face and as applied.

Based on the uncontroverted evidence comprising the record on appeal before us, we conclude that the Superior Court did not err in holding that former Chapter 74A was unconstitutional as applied in the present case. Accordingly, we reverse the decision of the Court of Appeals and reinstate the order of the Superior Court, Harnett County, allowing the defendant's motion to dismiss.

The defendant has conceded on appeal before this Court that former Chapter 74 was facially constitutional. The defendant has argued here that former Chapter 74A, which provided inter alia for the delegation of the State's police power to educational institutions, was unconstitutional as applied to Campbell University because it violated the First Amendment to the Constitution of the United States and Article I, Sections 13 and 19 of the Constitution of North Carolina.

Ordinarily, when a statute is challenged on constitutional grounds, the best course is to evaluate any challenge made under the state constitution before turning to a review of the statute under the Constitution of the United States. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294-95, 102 S.Ct. 1070, 1077-78, 71 L.Ed.2d 152, 163 (1982). See Reed v. Madison, 213 N.C. 145, 147, 195 S.E. 620, 622 (1938). However, where a law has been applied in such a manner as to be a manifest violation of the federal constitution as interpreted by the Supreme Court of the United States, state constitutional review may be unnecessary and dilatory. Based on the particular evidence presented in this case, we conclude that, as applied, former Chapter 74A violated the First and Fourteenth Amendments to the Constitution of the United States. We base our decision in this case solely on federal constitutional grounds. We neither consider nor decide any state constitutional issues.

In cases applying the Establishment Clause of the First Amendment, the Supreme Court of the United States has developed a three-pronged analytical scheme for determining the constitutionality of legislative enactments. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745. Under this analytical scheme, known as the Lemon test, to survive constitutional review:

First, the statute must have a secular 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."

Id. at 612-13, 91 S.Ct. at 2111, 29 L.Ed.2d at 755 (citations omitted). If a statute, as applied, violates any one prong of the Lemon test, it is unconstitutional. Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510, 518-19 (1987).

We turn our analysis to the third prong of the Lemon test and consider whether, based on the evidence presented in this case, the delegation of the State's police power to Campbell University creates or fosters an excessive government entanglement with religion. This entanglement prong of the Lemon test has been the subject of much debate. It has been criticized as being "blurred, indistinct, and variable" as well as "insolubly paradoxical." Roemer v. Maryland Public Works Bd., 426 U.S. 736, 768-69, 96 S.Ct. 2337, 2355, 49 L.Ed.2d 179, 200 (1976) (White, J., concurring, joined by Rehnquist, J. (now C.J.)). It has been said, for example, that the entanglement prong is paradoxical because it requires that aid to parochial schools be closely watched, yet such close supervision itself creates excessive entanglement. Wallace v. Jaffree, 472 U.S. 38, 109, 105 S.Ct. 2479, 2517, 86 L.Ed.2d 29, 77 (1985) (Rehnquist, J., dissenting). "The required inquiry into 'entanglement' has been modified and questioned," and the entire Lemon test has been said to have ...