State v. Rivinius

ting into evidence the results of the blood-

alcohol test and his admission he

driving, denying and in his motion for a Although

mistrial. Abrahamson raised val- issues,

id do judge not believe the trial

erred rulings. in his The conviction for

driving while under the influence of intoxi-

cating liquor is affirmed.

ERICKSTAD, C.J., PEDERSON, SAND, JJ.,

PAULSON and concur. Dakota,

STATE of North Plaintiff Appellee,

Kathy Weikum, RIVINIUS and Ronald Appellants.

Defendants and

Cr. No. 862.

Supreme Court of North Dakota.

Dec. Gen., Adkins, Atty. L. Asst. Bis-

Terry marck, Vukelic, Asst. Sp. Atty. and James Mott, Gen., appellee; ar- plaintiff Adkins, Bismarck. gued by Terry L. Ohio, Cleveland, Craze, & Gibbs Ullin, for defend- Glen Halpern, Boutrous & argued by David C. appellants; ants and Gibbs, Jr., Cleveland, Ohio.

SAND, Justice. Kathy appellants, The defendants Weikum, charged were Rivinius and Ronald violating the guilty with and found school attendance Dakota North law, 15-34.1-01, Century Dakota North Code,1 by sending their children practices. to the Liv- liefs and The defendants believe ing Word Academy, day compels provide a Christian school God them to an educa- tion for their children where approved by County Superintendent they may taught subjects Biblical, from a God-cen- Schools and the of Public perspective; tered where they may be Instruction of judg- North Dakota. The taught relationship correct to God and ment of conviction was entered and the them; authority those in over and where appealed. they may be taught Christ-like character The defendants and their families resided qualities personality traits through the Dakota, in Grant County, North within the example instruction and of teachers who Elgin Public School District. The defend- practice those same traits. Accordingly, parents ant had control over their children the defendants contended that are August September between 25 by commanded God to send their children to During this time the children were between teachers who have not submitted them- years age, and 16 but were not attend- selves to the state teacher certification ing the Elgin public school or a private or process and to a school which has not sub- parochial approved school pursuant to mitted to the process of the North Instead, NDCC 15-34.1-03.2 the § defend- Department Dakota of Public Instruction. ants’ attending children were Living Weikum, Defendant responding ques- to Word Academy, private ap- school not tions, testified: proved by County Superintendent “Q. you Can relate how would be School and the of Public violative? Summarize what I think Instruction of North Dakota. you’ve already said? The Living Word Academy employs a “A. Because of the fact we have the Bible-based Christian educational program. higher mandate —there is a authority The defendants believe that the Bible is the State, than guess I is what it comes inspired Word of God and commands them to, down is that higher God authori- to raise and educate their children in ac- ty the way God has directed that —and cordance precepts. with its The defend- go children, ahead and educate our primary ants’ contention is that they, and was, is, according the Word of state, not the mandated to pro- God God. To allow the State to have a rela- vide their children with an education. The tionship where they could be in between defendants contended that the curriculum the mandate from the Word of God to the Academy is an integral parent my religious would violate free- and inseparable part their be- dom in order to be do able to that. Century parent, 1. North Dakota guardian, Code person § 15-34.1-01 “The or other provides having required as follows: control of a child to attend provisions chapter school of this shall “Every parent, guardian, person or other causing be excused the school board from any district, who resides within school the child to attend school whenever it shall upon any government who resides base or board, be shown to the satisfaction of the any district, installation without school subject law, appeal provided by age has control over educable child of an following one of the reasons exists: years years of seven to sixteen who does not 1. That the child is in attendance for the provisions fall under the of sections 15-34.1- length parochial private same of time at a 15-34.1-03, 02-04 or shall send or take such approved by county superintend- school year during child to a school each superintendent pub- ent of schools and the entire time such school is in session” ap- lic instruction. No such shall be school County North Dakota Code § 15-34.1-05 proved legally unless the teachers therein are provides as follows: certificated in the state of North Dakota in “Any person failing comply chap- accordance with section 15-41-25 and requirements chapter guilty of this is of an 15-36, subjects ter offered are in accord- infraction.” 15-38-07, 15-41-06, ance with sections 15-41-24, and such school is in Century 15-34.1-03(1) 2. North Dakota Code health, fire, municipal with all and state provides as follows: safety laws.” Amendment, concern, “Q. applicable other area The First made through the Fourteenth to the states teachers, would it violate certification Connecticut, Amendment Cantwell convictional to have certified your (1940), 84 L.Ed. 1213 your teachers teach children? from prevents Congress legislatures or state Yes; again “A. because of the rela- respecting an establishment enacting laws tionship that would want the free exercise prohibiting interpose requirements order religion. go determine whether or not we can the freedom to hold reli Although ahead and directive that follow a absolute, act, freedom to gious beliefs is By Word of God sets out. the State even if action is in accord with that, do that would vio- allowed to convictions, totally legisla free from late my beliefs.” See, e.g., v. Ver tive restrictions. Sherbert testified, pertinent Defendant Rivinius ner, 374 10 L.Ed.2d belief, to her in substance as follows: com (1963) unemployment 965 of [denial “Q. to you I would like to ask to state pensation Seventh-Day to Adven benefits words; your religion own what the tist free exercise of Court restricted justify restriction]; is, state’s interest did not difficulty why you difficulty with 599, Brown, 366 U.S. 81 S.Ct. Braunfeld of relationship coming the State 1144, (1961) 563 exercise of 6 L.Ed.2d education, [free the educa- approving by Sunday closing violated religion not your children. process tional of Massa law]; Prince v. Commonwealth Weikum, I believe “A. do like Mr. chusetts, 64 88 L.Ed. 321 U.S. if we had it it would no approved, children un (1944) prohibiting [statute God, but longer be under the rule of age selling newspapers, from specified der under the rule of the State.”3 street did magazines, periodicals public or contended, the defendants appeal, On religion]; not free exercise of Cant- violate substance, regula- the state laws and Connecticut, prohibit supra, well v. [statute right to applied tions as them violated their religious for a ing money solicitation to the free exercise of edu- secre approved cause unless cause guaranteed by cate their children as counsel violated free tary welfare Reynolds Constitu- v. United religion]; North Dakota United States exercise of (1879) States, 25 L.Ed. 244 tions.4 respecting substantially testimony “Congress law shall make no 3. This is of the de- though attorney questioning religion, prohibiting the or even fendants establishment expression, you thereof; abridging free- “Do the defendants used the or free exercise feel," special right press; speech, in a concur- or the which was criticized dom of or of Shaver, ring opinion in State v. peaceably 294 N.W.2d 883 people assemble and (N.D.1980), constituting genuine as not a basis petition government for a redress constitutionality challenging for of a law on grievances.” grounds. religious Hampshire Constitution, I, Su- The New Article The North Dakota Drew, Court, in State preme 89 N.H. 3, provides: 631-632, involving A. case enjoyment of reli- exercise and “The free law, vaccination and attendance stated that: worship, gious profession without dis- ideas preference “The defendant’s individual whether shall be forever crimination or ‘scientific,’ ‘conscientious,’ ‘religious’ state, person do guaranteed no shall in this appear opinions. They to be more than incompetent a witness to be be rendered any question shown to involve are not opinion juror on matters of of his on account religious liberty. they opin- Since are mere belief; liberty religious of conscience but the ions are irrelevant and immaterial. hereby construed shall not be so secured validity defendant’s views cannot affect licentiousness, justify acts of to excuse excepted him of the statute or entitle to be peace or safe- practices inconsistent with the provisions.” from its ty state.” of this the United States 4. The First Amendment provides: Constitution prohibiting polygamy did not vio- Because of the interrelation of the sincer-

[statute ity late free religion]; exercise of defendants’ belief and the burden belief, on Shaver, we will (N.D.1980) consider these two [compul- N.W.2d 883 aspects of the constitutional analysis in con- sory school attendance law did not violate junction with each other. A consideration free religion]. exercise of

of the burden on a belief necessar- The resolution of a conflict between ily requires sincerity us to consider the the free exercise of beliefs and the that belief.5 health, state’s interest safety, and Court, appeal On to this the state con- welfare of its requires citizens a delicate tended that the defendants’ belief was of balance to accommodate these interests. extremely short duration the testi- Brown, Braunfeld v. supra; Prince v. Com mony offered the defendants was so Massachusetts, monwealth of supra; State inconsistent as to undermine claim of Shaver, supra. sincerity as to the par- belief held ents. The state points although out Shaver, State v. supra, after an exami- objected nation of Supreme United States Court de- certain state requirements cisions involving free exercise issues under teach- Academy [certified Amendment, the First applied con- ers], object the defendants do not analysis stitutional and approach utilized in requirements that compli- the school be in Wisconsin v. 406 U.S. fire, health, laws; ance with and safety 1526, 32 (1972), L.Ed.2d 15 and Sherbert v. that certain specific subjects taught; Verner, supra, to resolve conflict between and that courses be a taught minimum the state’s interest in the education of its days during year. number of The state youth and the rights fundamental and in- points also out that one of the teachers at terests protected by the free exercise clause Academy was certified in the of the First Amendment and the traditional state of Oklahoma. oral During argument parents interest of respect to the reli- that, the state except conceded for these gious upbringing of their children. We rec- inconsistencies, the beliefs the de- by held ognized that analysis constitutional religious fendants were sincere beliefs. arising cases under the free exercise clause are generally responded tailored to their The defendants to the state’s particular contentions by asserting factual situation. The of inconsistencies analy- constitutional Shaver, that as 891, long sis used in as there was no conflict be- supra at tween law” require- as follows: “God’s and the state’s ments, the parents were not adverse to (1) “... whether or activity not the complying requirements. with state The interfered with by the state is motivated require- contended that by and legitimate rooted in a and sincere- they object ments did not to did not affect ly-held religious omitted]; belief [citation the re- given their belief that were (2) whether or not the parties’ ... free to educate sponsibility by Word God exercise of religion by had been burdened their children. the regulation, impact and the extent or religious practices on their omit- observed, the freedom As we have [citation ted]; (3) whether or not the state to hold is ab religious opinions beliefs and had compelling regula- solute; however, those actions motivated tion justified the burden on the regulation. beliefs are not immune from religion free exercise of and overrode the protected are Only beliefs rooted parents clause, interest of the ... in exercising religious the free exercise religious practices. logical, be con- acceptable, need not Yoder, supra, sincerely In Wisconsin v. religious and State v. held. beliefs were Shaver, supra, stipulated the state conceded or

225 sistent, or comprehensible to others in Interrelated with the wide order latitude to merit First Amendment protection. religious afforded a is the quality belief Thomas v. Review Board of the Indiana sincerity of belief and the burden cast Division, Employment Security 450 U.S. upon the belief state’s laws and 707, 1425, 101 (1981). S.Ct. 67 L.Ed.2d 624 regulations. challenging Persons a statute “ It is not within judicial ‘the function and affecting the free of religion exercise must judicial competence; ... determine ... demonstrate the manner in which the the proper interpretation the Amish state’s minimum requirements or standards faith;’ [cjourts are not arbiters of scriptural infringe upon their free exercise religion. Lee, interpretation.” United States v. 455 Shaver, supra. quality State v. 1051, 252, 102 71 L.Ed.2d 127 S.Ct. concerning claims the encroachment of the (1982), citing Thomas v. Review Bd. of Indi compulsory school attendance laws on the ana Employment Security Division, supra. rights defendants’ free exercise of This concept religious liberty necessarily their religious important beliefs is an con requires beliefs, long as they sideration. Wisconsin 406 U.S. at religious secular, may and not have a wide 92 32 S.Ct. L.Ed.2d at 25. divergence among individuals and still be entitled to protection. First Amendment Yoder, supra, In Wisconsin v. the United See, Ballard, United 322 States v. Supreme States carefully Court evaluated 64 (1944); 1148 West L.Ed. the quality of the Amish claims concerning Virginia State Board of Education Bar the encroachment of Wisconsin’s compulso nette, 319 U.S. 87 L.Ed. ry school attendance on their statute reli (1943). However, showing of a sin gious beliefs whether and considered or not cerely held religious belief is necessary religious the Amish and their faith mode of prevent a limitless for avoiding excuse life were inseparable interdependent. unwanted legal obligations and a group’s Supreme Court noted record word cannot automatically accepted if a supported the Amish claim that the “tradi See, exemption is at issue. United way tional of life of the Amish is not mere Kuch, F.Supp. (D.D.C. States ly personal a matter of but one preference, 1968), [denying A.L.R.3d 922 conviction, deep religious by of shared an exemption drug regulations from federal where organized extrinsic evidence established that group, intimately and related to only a pretense religion tactical was in daily at at living.” 406 S.Ct. volved: members of the “Neo-American 1533, 32 in L.Ed.2d at 25. The Court Hoos, Church” with its known as heads Boo at U.S. at L.Ed.2d the seal of the church was a three-eyed at went that: on to observe toad, and the church motto was “Victory schooling, by exposing “... secondary over Horseshit.”] wordly Amish children to influences in instance, In beliefs of the attitudes, terms of and values con- goals, defendants are based on their perspective of beliefs, trary by substantially in- accepting their God’s role into lives as well terfering religious development with the into the education of their children. his integration of the Amish child and These beliefs a express political, phil do not into the of the Amish faith way of life osophical, preference; or moral but instead stage at adolescent community the crucial represent a conviction rooted in their reli development, the basic re- contravenes gious a contrary showing beliefs. Without ligious of the Amish practice tenets and the defendants’ beliefs are based on faith, parent and the both as to the anything religion, considering child.” divergent, individual beliefs Supreme In particular, the United States must accept and assume that the individual of its decision scope Court outlined the defendants hold these as sincere reli gious beliefs. follows: very

“It cannot be that we are sur- overemphasized regulation threatened dealing not with of life and mode way a Amish reading vival of the faith. A careful claiming of education a to have group quality of Yoder establishes that recently ‘progressive’ discovered some of the Amish the burden degree beliefs and enlightened rearing for chil- process more were, symbolic on those beliefs on a scale of dren for modern life. constitutionality, given weight. great by a history “Aided of three centuries Shaver, supra, Bap- In the Bible State as an sect and identifiable objected securing ap- tist Church state long history as a and self-suffi- successful state proval required by of their school as segment cient society, of American However, no attempt law. was made at convincingly Amish in this case compliance with trial demonstrate how sincerity demonstrated the of their reli- requirements ap- the minimum beliefs, gious the inter-relationship of be- 15-34.1-03(1) forth in proval set NDCC § life, lief with mode of the vital role parents would affect the religion of play that belief and daily conduct particular, In record did their children. continued survival of Old Order Amish deeply convic- not disclose rooted religious organiza- communities and their in against tion the use of certified teachers tion, presented by hazards School, Baptist the Bible record general- enforcement a statute State’s could be con- demonstrated instruction this, ly valid as to Beyond others. violat- ducted certified teacher without have carried the bur- even more difficult tenets ing Baptist the basic of the Bible demonstrating adequacy den of Church. continuing their alternative in- mode formal vocational in terms education discussion of on the free Our the burden precisely those interests that overall Shaver, su- religion exercise of State advances its support program State following: with the pra concluded compulsory high school education. principles, appears “It that while the light convincing showing, of this one that beliefs, held in common doctrines probably religious groups few other op- members of the Church Baptist Bible make, sects could the mini- weighing the Bible pose requisite the essential difference mal between what the State Baptist obtain state School require would and what the Amish al- compulsory comply order ready accept, incumbent on the law, of their school attendance the tenets particularity to show more with do forbid its admittedly strong how specific needed requirements adversely education would be approval. to obtain that by granting exemption affected Verner, 15-34.1-03, supra. Amish. N.D. Sherbert v. “Pursuant Section C.C., school must be parochial private “Nothing we intended to under- hold is by Superintendent the approved County general mine the applicability and the State’s school-attendance Schools power parents statutes or to Instruction. have limit the State Public As the that, promulgate reasonable standards their to show tenets of failed the exercise impairing while not the free spe- religion forbid religion, provide continuing agricul- state needed to obtain requirements cific parental tural vocational education under to under- it is difficult for us approval, guidance church the Old and Order objection seeking approval. stand their others Wis- similarly Amish or situated.” Nevertheless, parents the contend Yoder, 235-236, at 92 consin v. 406 U.S. Bible to seek Baptist the School requiring 1543, 32 36-37. at L.Ed.2d at S.Ct. of their the tenets approval state violates impqses impermissible and an case a conflict represented The Yoder religion free exer- and a burden on the religion between the exercise of state substantial

227 cise For argument, gion thereof. the forbid compliance specific sake with a re- we requirement assume that is a quirement needed to secure approval, state burden their upon i.e., free exercise of Thus, teacher certification. this case religion.” [Emphasis original.] in presents a different issue present- than that Shaver, ed in supra. Although we case, the instant con- defendants high respect have regard for de- tended requiring Living Word religious beliefs, fendants’ we do not believe Academy to seek state and teach- the burden on those beliefs the mag- are of ers’ certification their unduly infringed nitude in demonstrated Wisconsin v. right religion. to free exercise of The de- Nevertheless, supra. the defendants have fendants were primarily concerned with the demonstrated that the regu- state laws and relationship control over state lations, to a degree, impose a upon burden which, according belief, education to their their Consequently, beliefs. was a religious function. analyze must consider and inter- state’s To obtain state approval private of a est in the compulsory school attendance parochial Dakota, school in North the fol- law. lowing requirements minimum set in forth 15-34.1-03(1) NDCC (1) must be § met: analysis, This framed State v. the teachers are legally certified in North Shaver, 891, supra at or not “whether Dakota in accordance with NDCC 15-41- state compelling regu had interest in 15-36; 25 (2) subjects and Ch. offered justified lation the burden on the 15-38-07, are in accordance NDCC §§ free exercise of and overrode the 15-41-06, 15-41-24; (3) the school parents exercising the ... is in compliance with municipal religious practices.” legiti Whenever fire, health, state safety laws. legislative expressed mate objectives are a statute which bur imposes The substantial record reflects at least one protected den on an interest First teachers at employed Living Word was, Amendment, been, legislature achieve Academy had must certified Oklahoma. The goal by record also reflects that its means which have the least employed Living teachers Word impact restrictive or “less drastic” on the Academy were “certifiable” in North Dako- Primus, First Amendment freedoms. In re ta. testimony of Rev. David Keister 412, 1893, 436 98 56 L.Ed.2d 417 U.S. S.Ct. Living reflects that Academy Word would Valeo, 1, (1978); Buckley v. 424 U.S. 96 teachers, not necessarily forbid certified 612, (1976); 46 659 United S.Ct. L.Ed.2d a certified teacher would to disavow Robel, 258, 419, 389 States Living certification to teach at Word Acad- Button, (1967); 19 L.Ed.2d 508 NAACP emy. quali- Rev. Keister testified that the 371 83 9 L.Ed.2d 405 S.Ct. Academy fications to teach at Tucker, (1963); Shelton v. 364 U.S. satisfying spiritual qualifications included (1960); State v. S.Ct. L.Ed.2d through interviewing and also procedure Shaver, supra. satisfying competency qualifications. the impor- There can be doubt as to no although record further reflects that See, e.g., tance of for our youth. education the law dictates curriculum schools Education, Brown Board of 347 U.S. offer, dictáte, must the law nor does Neither (1954). 98 L.Ed. regulate, does the the perspective doubt, and the can there be subjects taught. from which the must be concede, has an interest that the state Rather, the manner in which the teachers v. educating youth. its Wisconsin teach con- their students is defined and Sisters of Society Pierce v. supra; lay trolled the local school board or the Mary, 268 Holy Jesus and the Names of controlling board. (1925); L.Ed. 45. Nebraska, 262 case, Meyer the instant the defendants have (1923). that of their reli- 67 L.Ed. 1042 demonstrated tenets VIII, legis- that provides Article § Dakota Consti- the North Article VIII of steps take such other assembly shall contains a lative and tution deals with education illiteracy, necessary prevent to system be provide to as constitutional mandate uniformity in degree of the state.6 a reasonable within secure of schools and education industrial, promote to study, of and course Dakota VIII, 1 of the North Article § scientific, improvements. agricultural and degree high that “a recognizes Constitution integrity and intelligence, patriotism, of all provisions These constitutional voter in a every of morality part on the compelling the state has a that disclose “in necessary is people” government by of minimum standards requiring interest that of to insure the continuance order of education adequate to insure education happi- and prosperity government and to enable them of the state the children people.” ness of community.7 citizens viable be free interest is not Nevertheless, the state’s VIII, Dakota 2 of the North Article § impinges process when balancing from upon the a mandate imposes Constitution such as and interests rights on fundamental of system a uniform legislature provide the First Amend of the free exercise clause state, throughout schools public free Yoder, supra; State ment. Wisconsin extend- schools and beginning primary with Shaver, supra. through grades. all ing Dakota constitution The North VIII, Dakota 3 of the North Article § have at relating to education al provisions instruction shall provides that Constitution I, 3 and standing with Article equal § least in those practicable, as as given, be far guar Dakota Constitution 4 of the North impress knowledge of tend branches religion and freedom anteeing freedom of of importance the vital upon the mind We take note press. and truthfulness, public speech of temperance, purity, provision constitutional every when respect and for honest labor spirit upon of North Dakota by the state adopted kind. fulness, purity, public spirit, temperance, and 2, 3, VIII, North and 4 of the 6. Article §§ every respect kind. entirety labor of for honest provide as in their Dakota Constitution assembly legislative shall 4. The “Section follows: necessary steps may be such other take prevent intelligence, high degree of 1. A “Section degree illiteracy, secure a reasonable part integrity morality patriotism, on the study, pro- uniformity and to course of people every government voter in a scientific, industrial, agricultural mote improvements.” necessary contin- in order to insure the prosperity government of that uance legislative happiness people, the and assembly Olin, Nagle St.2d 64 Ohio In State ex rel. provision the estab- shall make (1980), held the Court 415 N.E.2d system of a and maintenance lishment standards of Ohio’s the minimum open all public shall be schools which necessary to went further than education law of North Dakota children of the state of its in education the state’s assure legislative control. This free from sectarian court, supra Nagle Significantly, the children. requirement be irrevocable without shall 288, stated: 415 N.E.2d at people of the United States and consent “Additionally might refer to board the state of North Dakota. ap- regulatory scheme the North Dakota proved assembly legislative shall 2. The “Section Shaver, supra. That in State v. public system provide of free for a uniform ap- required state issuance scheme state, beginning throughout with schools upon private parochial proval school of a extending through grades primary all legally (1) certi- showing all teachers higher up including schools of educa- to and fied, prescribed (2) in a courses are offered assembly may tion, legislative except subjects, (3) that the range the school of secular tuition, charges to municipal fees and service authorize and state financing fire, health, safety schools assist in the laws.” regulatory higher Thus, Dakota education. the North while involved, directly it neverthe- instruction shall In all schools “Section 3. scheme was had, practicable given in those of a court far as received the less reg- instances, against impress knowledge decided tend to in two ulatory branches upon importance scheme in Ohio. of truth- vital the mind the being granted statehood, was tacitly ap- means to insure the end to be sought at- is proved and in with the harmony science, First one is an tained. Neither exact Amendment the United Constitu- States probabilities. is concerned with Each meth- tion. take this We also note that was ac- od which purports learning measure can complished Reynolds after the decision in v. be questioned to its validity. as States, United L.Ed. 244 testing ordinarily Standardized does not (1879)8was handed also down. We observe result in discovery deficiency of a in that the constitutional of reli- guarantees term, semester, education after the until gious equal rank freedom constitu- over, would, is year school in provisions tional relating speech to free and effect, period result in child of wasting its press. time if the results standardized test This illustrates that the interest indicated that the child’seducation was de- of the state and the of interests individuals ficient. not We do believe such result regarding or convic would the state’s in educat- satisfy tions must be harmonized and balanced ing its youth. with the interests of the state so as to cognizant are teacher Although we that preserve separate interests much as deficiencies, certification also have its possible without infringing upon respec we believe that teacher certification is an rights tive more than necessary. is The acceptable part of satisfying method interests of neither one absolute. is We constitutional mandate to the legislature believe stated constitutional mandate properly provide youth. an education its for objective compelling establishes the The state defendants in their brief that state interest and the resulting outbalances approval certification of teachers and state strain or on imposition the defendants’ reli require Academy] “would school gious [the beliefs. Under posture subject approval itself to educa- case we have no available to us other viable tional is based inundated system that alternatives. anti-religious philosophy secular Nevertheless, the strenuously defendants Furthermore, Academy humanism. recognized contended state’s inter- would be to hire who had required teachers educating est in its youth can achieved given stamp been of approval by through a less more precise restrictive and However, same system.” the defendants do i.e., alternative, standardized nationally object not to the specifically minimum units tests.9 achievement The defendants con- study required and set out NDCC Living tended that the Academy pro- Word and oth- 15-41-24 to meet vides a “Christian education is academ- er basic to health requirements pertaining if ically equal, superior education We, therefore, that the safety. assume schools,” afforded in North Dakota’s object teacher primarily and that the results on the achievement necessary which is requirement certification tests demonstrated that the students’ edu- under present Academy law order for the cation at the Academy approval. to qualify for and receive state above the average. national The defend- This invites a careful examination what ants also contended that the use of nation- precisely implicitly required for certifi- ally standardized achievement tests is not cation under the state law. an infringement upon their beliefs. recognize

We certified teach- Public Instruction neither testing perfect Dakota, ers nor North consulta- standardized State of Reynolds States, supra, v. United Legislature 9. H.B. 1608 involved considered practice which, substance, permitted polygamy. the Mormon The United would Supreme party’s to teacher States Court held reli- as an alternative standardized tests gious justification accepted belief cannot be certification. committing an overt act made criminal the law of the land. regarding tion the Teachers Professional Prac- boards and teachers contracts do criteria10 private parochial tices Commission determines the or apply schools. for teachers’ certification. These standards College, See Schauer Jamestown character, must include consideration of ad- (N.D.1982). lay controlling The N.W.2d equate preparation, general educational position any board is in a to take valid fitness to teach. 15-3&-01. We NDCC § precautionary measures to insure that the have anyone truly serious reservations that teaching compatible will be with the reli- educating concerned with children would is, and convictions. This or gious beliefs object having to the teacher the above list- be, would a matter between the certified qualifications ed or would not want the teacher and the board. teacher to have them. of the criteria None to our party brought Neither has atten- signify, remotely or standards even or oth- constitutional, any statutory, regula- tion or erwise, “based and inundated with tory provision policy prohibiting lay or anti-religious philosophy of secular hu- requiring control board from the certified nor manism” does the record contain any private parochial teacher in a or school to suggesting evidence contrary. subjects, or teaching religious include the The criteria for certification must be in a compatible to teach manner with their upon based statutory quali- above listed any. beliefs. Neither have we found The Furthermore, public hearing fications. monitor the lay board could classroom to required before the may is- teaching insure that the conform with their sue regulations concerning rules and agreed understanding or contract and take issuance of a teacher’s certificate. We also legal whatever action is if the necessary

have serious reservations that the North need arises. endorse, Dakota will public promote, or rec- any The record contains no evidence that ommend rule regulation or which would teacher, having ap- certified after been encompass any “anti-religious philosophy of proached requested or to teach in the man- secular humanism.” style ner and philosophically satisfactory parochial Private or schools are not con- beliefs, compatible religious with the strained the same manner as are including the conscience of schools and may religious activity, situated, similarly and others declined to do training, teaching part conducted as expressed any thought so or that the certifi- subjects curriculum in addition to the prohibited cation interfered with or such required taught to be by law. conduct. event, In any lay controlling board statutes, especially The current (comparable the public yet school board provisions, state certification including not limited or governed by applicable laws oath11 of the teacher required pre- do not public schools) insist, the authority has vent discourage any approach or effort employment, as a condition of the cer- in that direction. tified teacher use methods and standards of teaching grounds which will for revocation of a teacher’s further compatible and convictions or be certificate are contained in NDCC 15-36- statutory with them. The provisions gov- upon examination we find that erning relationship appear compatible between school to be with the stated judicial according have taken We notice of the materi- duties of a teacher his best of Regulations al found in ability. prevent any Guidelines & for North Such an oath does not Dakota Educator’s Professional Certificate teaching style in a certified teacher from August revised 1 used criteria conformity compatible manner in issuing teachers certificates. convictions, defendants’ beliefs and nor does teaching prevent this oath the teacher from seeking 11. Each teacher certification must sub- subjects specified than other the ones support scribe to an oath or affirmation to Constitution of the United States and the state of North Dakota and state.

faithfully discharge goals expressed ity defendants’ of education under circumstances which beliefs and convictions. provide safety evolve, health time, until appears such this means to us to purpose or effect be proper.” statutes and regulations on certification of promote teachers is to and Accordingly, further the edu we affirm the judgment of cation of purpose the children. The is not conviction. impede

to the observance of one or reli gions discriminate or to invidiously ERICKSTAD, between C.J., PAULSON, and religions, prohibited which is Braunfeld WALLE, JJ., VANDE concur. Brown, 366 81 6 S.Ct. PEDERSON, Justice, concurring special- (1961). L.Ed.2d 563 ty- In whether determining or not certain business, in Often the law where tradi- laws or regulations create an unreasonable tion precedent significant, and are situa- upon or undue burden an reli- individual’s tions must be which espe- confronted are gious freedom guaranteed by the Consti- cially frustrating. This case illustrates tution, though recognize, respect even we things some of the frustrating that are regard high have for an individual’s analogous me. respect In that it is to cases convictions, beliefs and we never- in which we are to obligated apply the theless, necessity, out of an must ob- apply rule exclusionary prevent and thus jective test to the facts established. truth from shown order to in accom- After a review careful of the constitu- plish a purpose. collateral See debate on guarantees tional and the on case law Kamisar, exclusionary rule by Wilkey, Can- subject, we conclude that present under the Schlesinger on and in 62 Judicature at laws the not state does inter- unreasonably 66, 214, 337, 351, 398, pages (1978). 404 liberty fere with the of parents up- though invalid, Even be statute bringing and education of their children precedent prevents acknowledging us from and that present unduly laws do not urging invalidity it when those do not impinge on the rights constitutional or, similar, “standing” something very conclusion, reaching defendants. In this we show they have been unable to that only confined ourselves to the material and prejudiced Hjelle invalidity them. specific challenges submitted because Construction 173 Company, Sornsin N.W.2d courts, believe that the unlike apportion- (N.D.1970), at this court syllabus matters, ment posi- a relatively poor held: tion ill-equipped remedy fashion a general a litigant may “The rule is that which neither party has Such advocated. rights assert his own only constitutional innovative generally remedies should Highway or immunities. As the Commis- sought through legislative process. We presented weighty sioner has no counter- are primarily concerned whether or not the policies exception vailing cause present law is involved valid. We conclude rule, it is that held that he has no stand- it is. If a better solution is available which rights assert the ing to constitutional will have an lesser even effect on reli- parties.” adverse gious beliefs the present than under law consideration, it should be through leg- gives standing, What in Wis- Amish process. islative We are not implying consin v. intimating legislature may (1972), Kathy 32 L.Ed.2d Rivinius work out a system satisfactory will be Appar- and Ronald Weikum do not have? both meaning the state sides— ently depth, quality sincerity it is accomplish defendants —and still consti- I who qualified their belief. do not know tutional mandate. but, under our make evaluation — As Shaver, rules, we stated heard saw supra judge the trial who State time, “In means qual- other must make the first in- assuring testify them

stance, he presumption and there is a The fact correctly. made the evaluation COULTER, Earl Grant Plaintiff Kathy’s and Ronald’s convictions were Appellee, apparent- not described in the same terms — ly was the Amish conviction —militates COULTER, Donna Defendant Jean against them when ask that this court Appellant. the trial reverse the conclusions reached court. Civ. No. 10189. argued Kathy’s has Supreme Court of North Dakota. short-standing. Ronald’s beliefs are sincerity Amish traditions demonstrated be- Dec. cause, part, they practiced had been for did Kathy three centuries. and Ronald

argue (Christianity) that their tradition has practiced

been for over nineteen centuries. argued

The State further inconsist- sincerity

encies detracted of Ka- from

thy’s Apparently, and Ronald’s beliefs. being presented

when the case was court,

trial there was no effort made to that, judged worldly

show when under stan-

dards, there are few principles Christian

which cannot be made to appear wholly

inconsistent. case,

If I had been the trial judge

my powers of discernment would have led

me to distinguish Kathy’s between

Ronald’s sincerity and of the “Boo

Hoos” of “Neo-American Church”

(United Kuch, F.Supp. States

(D.D.C.1968)), Kathy’s but not between sincerity

Ronald’s and that Amish

(Wisconsin Yoder, 406 U.S. (1972)). 32 L.Ed.2d 15 If it were raised,

appropriately I would not hesitate to VIII,

rule that the Article requirements of 3, of the North Dakota Constitution re-

lating “truthfulness, to teaching temper-

ance, purity, public spirit, respect kind,” every

honest labor of are not

met by public stay schools. But I must my authority rules that limit as an

appellate judge. Because we cannot substi- judgment

tute our for that of the trial

court, I concur in the majority opinion au-

thored Justice Sand.

Case Details

Case Name: State v. Rivinius

Court Name: North Dakota Supreme Court

Date Published: Dec 17, 1982

Citation: 328 N.W.2d 220

Docket Number: Cr. 862

Court Abbreviation: N.D.