State v. Burckhard

¶1dissenting.

¶2[¶ 43] I respectfully dissent.

¶3[¶ 44] The State charged Burckhard with violating N.D.C.C. § 12.1-23-02(1) for, “while being a priest of the church knowingly [taking] and exercis[ing] unauthorized control over money in excess of $100,000.00 belonging to St. Catherine Church of Valley City,” alleging he spent “money on personal matters ... with intent to deprive St. Catherine Church of [the] money.” To convict, the State must prove Burckhard knowingly exercised “unauthorized control over, or [made] an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof.” N.D.C.C. § 12.1-23-02(1). The majority finally agrees in paragraph 31, “the State will need to produce evidence, through testimony of church officials or other appropriate means, of the authority entrusted to [Burckhard] and conduct outside that authority,” (my emphasis), but the majority is “not convinced” this prosecution “requires the court to interpret or review church doctrine, policy, or laws.” Since no church official initiated this charge apparently, I am perplexed about how this case can proceed -without the court nec*204essarily examining and interpreting church laws and policies.

¶4[¶45] The majority does not look at the evidence in this record about the scope of authority of this parish priest:

In juridical matters, the pastor acts in the name of the parish. The pastor of the parish has responsibility for the administration of all parish property. If he is negligent in his duties, however, it is the right of the Bishop to intervene. If the Bishop finds negligence, he has the right to correct errors, demand a different method of administration, or apply punitive measures. The code [of Canon law] also gives the possibility of recourse within ecclesiastical procedures if actions of its administrator have damaged a juridic person. (Canon 1284 Paragraph 3). This recourse could be either through ecclesiastical courts or through the Bishop. (Canon 128).

¶5Letter from Bishop James S. Sullivan, Bishop of the Diocese of Fargo (July 21, 1997). In my opinion, the Bishop’s explanation clearly invokes the rule of deference by the civil courts, which the majority recognizes in paragraph 25, that “forbids courts from second-guessing the church’s rulings on internal matters of policy and doctrine, because the process of second-guessing would require excessive government entanglement in church affairs.” While the majority gives lip service to this rule of deference, it unfortunately declines to apply it at this stage in this ease.

¶6[¶46] Embezzlement from a private, unregulated organization by one of its officials is necessarily a property dispute because the official’s authority is fixed by the internal laws and policies of that organization. When the organization is a church, a contested criminal prosecution will often become an “extensive inquiry by civil courts into religious law and polity.” See Serbian Eastern Orthodox Diocese, Etc. v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 2380, 49 L.Ed.2d 151 (1976). “[T]he First Amendment commits [this kind of inquiry] exclusively to the highest ecclesiastical tribunals of this hierarchical church.” Id. at 720, 96 S.Ct. at 2375. In Employment Division, Dep’t of Human Resources v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990) (citations omitted), the majority of the United States Supreme Court summarized the Serbian Eastern Orthodox Diocese precedent and related ones this way: “The government may not ... lend its power to one or the other side in controversies over religious authority or dogma.”

¶7[¶ 47] The Catholic church “has the right to adjudicate and enforce its own ecclesiastical laws.” Bishop Sullivan explained that here in his July 21,1997 letter in this record:

As a historic principle, the Church claims the right to control its own temporal goods. (Canon 1254 Paragraph 1). Further, all temporal goods belonging to any public juridic person in the Church are ecclesiastical goods and are regulated by the Code of Canon Law. (Canon 1257 Paragraph 1).

The Code of Canon Law describes a parish as a community of the Christian faithful established on a stable basis. A parish is a juridic person. As the subject of rights and obligations, the parish must be supervised by a physical person who represents it in all juridic affairs: (Canon 532). The responsibility for administration of all ecclesiastical goods lies with the physical person who governs the juridic person to whom the goods belong. (Canon 1279 Paragraph 1).

The ecclesiastical laws and policies of the Diocese determine how much of the contributions given to the Church are to be used for the personal support of the parish priest. Any abuses or violations of these policies are violations of ecclesiastical law. In summary, under Canon law, the parish priest is responsible for administering the temporal goods of the parish. He is responsible to decide upon the proper use of the goods of the parish. This responsibility is regulated by the laws of the Church and by his ecclesiastical superiors, primarily the Bishop. The laws of the Church provide for the right of the Bishop to intervene if there is an abuse in the administration of the temporal goods of a parish. They provide procedures for recourse by the parish if the negligence of the pastor *205should damage it. And, of course, the Church has the right to adjudicate and enforce its own ecclesiastical laws.

¶8(My emphasis). As the Bishop explained, unhappy parishioners have recourse through internal church procedures, even if the church chooses not to criminally prosecute a wayward priest.

¶9[¶ 48] In this appeal, the prosecution tried to minimize the potential of entanglement with internal church affairs by arguing: “[T]he outcome of the ease is certainly not completely reliant on canon law because, in an embezzlement situation, factors other than whether the person had some authority over the funds are important.” I believe that attitude is too short-sighted. A hierarchical church, like this one, sets its own standards and controls its own property. There are no regulatory standards for a church’s use of its property and funds as there are for publicly regulated organizations, like banks or business corporations.

¶10[If 49] This prosecutor appears too unconcerned about the Free Exercise of Religion aspects of this ease, in my opinion. Her brief asserted: “The State will rely on statements, evidence, documents, and an examination of church accounts by [a Certified Public Accountant firm] who was hired by St. Cath-erines after this scheme was discovered.” Without the necessary foundation about the Catholic church’s hierarchical structure, canon laws, and internal authorizations, that material will be of doubtful admissibility and little evidentiary value, in my opinion, unless the Bishop or higher church officials press the criminal prosecution of this priest.

[¶ 50] In her brief, the prosecutor argued: Adoption of the “lack of jurisdiction” defense strips parishioners of the right to be part of a law abiding group the moment they become part of the congregation. As citizens of North Dakota, they are entitled to the protection of the laws of North Dakota.

¶11This prosecutor thus seems blind to the principle of separation of church and state under the First Amendment when she resists recognition of exclusive church jurisdiction over its own funds, and when she seeks to prosecute at the insistence of a faction of local parishioners, rather than at the instigation of church officials. As the Minnesota Court of Appeals recently explained, Basich v. Board of Pensions, Evangelical Lutheran Church in America, 540 N.W.2d 82, 85 (Minn.App.1995), “[i]f a [ease] involves core issues of ecclesiastical concern, the potential for government entanglement in religious matters prevents judicial review,” and “deprives the court of subject matter jurisdiction.”

¶12[¶ 51] In certain cases, the courts can certainly “exercise jurisdiction over prosecutions against the clergy of religious organizations,” so I agree with parts IIIA and B of the majority. The majority fails to observe, however, that the examples they cite involve violations of neutral legal standards that do not depend on the internal authority of the particular church official prosecuted — mail fraud, securities fraud, tax evasion, sexual abuse, child molestation. No dispute between local parishioners and church governance affects the neutral legal standards that control those categories of criminal conduct. As the majority in Smith, 494 U.S. at 879, 110 S.Ct. at 1600, explained, the United States Supreme Court has “consistently held that the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a Valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)’ ” (citing United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 1058 n. 3, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in judgment)). A criminal prohibition against embezzlement in a private organization is not a “neutral” law because it wholly depends on the organization’s internal authorizations.

¶13[¶ 52] Because “civil courts ... must give deference to church decisions on ecclesiastical issues,” (majority opinion, paragraph 20), North Dakota courts must “follow the decision of the proper ecclesiastical body if such decision becomes important in determining property rights.” Presbytery of Bismarck v. Allen, 74 N.D. 400, 22 N.W.2d 625, 631 (1946). And: “The ecclesiastical body in making its decisions can interpret its own laws and pass upon its own procedures without court interference.” Id.Therefore, I *206agree with the trial court when it ruled the courts “should not be trying to interpret church doctrine in a criminal case, such as this one involving church property, any more than it should in a civil ease.”

¶14[¶ 53] The majority insists in paragraph 8 a “motion to dismiss is not a proper procedural vehicle to determine ... Burckhard’s authority to expend church funds or whether he made unauthorized expenditures with the funds.” In paragraph 36, the majority again insists, “Burckhard’s authority over the church funds is a question of fact not appropriate for resolution under a N.D.R.Crim.P. 12(b) motion to dismiss.” But a defense or objection that the complaint “fails to show jurisdiction in the court or to charge an offense ... must be noticed by the court at any time during the pendency of the proceeding.” N.D.R.Crim.P. 12(b)(2). When a constitutional defense is raised that affects jurisdiction, like the Free Exercise of Religion one here, in my opinion a motion to dismiss properly calls for early decision.

¶15[¶ 54] Early adjudication, and interlocutory appellate review, for many constitutional interests are necessary because the resulting decision, “though short of final judgment,” “determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that ... consideration be deferred until the whole case is adjudicated.” Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 838, 133 L.Ed.2d 773 (1996) (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949))(interest in avoiding trial; qualified immunity defense to claim for constitutional wrongs); see also Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (interest in avoiding trial; Eleventh Amendment immunity); Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (interest in avoiding trial; Speech or Debate Clause); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (interest in avoiding trial; Double Jeopardy Clause); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (interest in avoiding imprisonment; Excessive Bail Clause). In my opinion, the free exercise of religion under the First Amendment and the constitutional separation of church and state are also important constitutional dimensions. The question of jurisdiction of secular courts over church funds and canon law are too important to be deferred until the entire case has been adjudicated.

¶16[¶ 55] Therefore, I would affirm the trial court’s prudent dismissal of this prosecution in the face of the evidence from the appropriate ecclesiastical officer who has not chosen to prosecute criminally for violation of church authority. Bishop Sullivan sufficiently explained:

By the authority vested in me as Bishop of the Fargo diocese, I appointed Father Burckhard to St. Catherine’s parish at Valley City effective July 1, 1989. In accordance with the code of Canon Law, Father Burckhard was responsible for administration of all ecclesiastical goods belonging to St. Catherine’s parish. As a physical person, he acted in the name of the parish, a juridic person. As a parish priest, however, Father Burckhard’s administrative decisions concerning the ecclesiastical goods of the parish are always subject to oversight by the Diocesan Bishop.

As you are aware, troubling reports from St. Catherine’s concerning the actions of Father Burckhard caused my office to investigate those allegations and initiate ecclesiastical procedures to redress any improprieties. Father Burckhard was removed from the parish on October 20, 1996. The church continues to pursue appropriate remedies within the ecclesiastical realm....

¶17[¶ 56] Still, I would modify the dismissal to make it without prejudice to renewal of the prosecution if the Bishop or a higher church official yet may choose to join in prosecuting a criminal charge against this priest. If the church governance seeks to vindicate its property interests and enforce its canon laws in the civil courts, there is, of course, no reason why a criminal prosecution could not *207proceed.4 Then, of course, the church governance would need to provide the proof of lack of authorization for the priest’s expenditures.

¶18[¶ 57] Because the majority fails to honor the separation of church and state that the Free Exercise Clause of the First Amendment commands, absent a compelling state interest, I respectfully dissent from this reversal to reinstate jurisdiction of this criminal charge at this time. I would only modify to permit the criminal prosecution to proceed if the church governance chooses to do so.

¶19[¶58] Otherwise, I would affirm the dismissal for lack of jurisdiction over church affairs.