{ "id": 8520658, "name": "STATE OF NORTH CAROLINA v. ALAN HOWARD PENDLETON", "name_abbreviation": "State v. Pendleton", "decision_date": "1993-10-05", "docket_number": "No. 9211SC880", "first_page": "171", "last_page": "180", "citations": [ { "type": "official", "cite": "112 N.C. App. 171" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "459 U.S. 116", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192512 ], "weight": 9, "year": 1982, "pin_cites": [ { "page": "117" }, { "page": "301" }, { "page": "125" }, { "page": "306" }, { "page": "127" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/us/459/0116-01" ] }, { "cite": "397 U.S. 664", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058013 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "675" }, { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/us/397/0664-01" ] }, { "cite": "473 U.S. 402", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6200100 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "409-10" }, { "page": "297-98" } ], "opinion_index": 0, "case_paths": [ "/us/473/0402-01" ] }, { "cite": "175 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1239487 ], "weight": 2, "year": 1899, "opinion_index": 0, "case_paths": [ "/us/175/0291-01" ] }, { "cite": "472 U.S. 38", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512457 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/472/0038-01" ] }, { "cite": "590 F.2d 514", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 823089 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/f2d/590/0514-01" ] }, { "cite": "463 U.S. 388", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195521 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/0388-01" ] }, { "cite": "487 U.S. 589", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774797 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "616" }, { "page": "545" }, { "page": "615" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/us/487/0589-01" ] }, { "cite": "403 U.S. 602", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027402 ], "weight": 4, "year": 1971, "pin_cites": [ { "page": "612-13" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/us/403/0602-01" ] }, { "cite": "193 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "282 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565316 ], "year": 1972, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0388-01" ] }, { "cite": "263 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "730" }, { "page": "730" }, { "page": "730, n.1" } ], "opinion_index": 0 }, { "cite": "299 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575203 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "406" }, { "page": "406" }, { "page": "406, n.1" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0399-01" ] } ], "analysis": { "cardinality": 857, "char_count": 21175, "ocr_confidence": 0.759, "pagerank": { "raw": 2.1266542374778147e-07, "percentile": 0.7652747322334237 }, "sha256": "09c329769b5c00643747a43b79f4293aa3f391d5ebbd7b41087d15f6f6fb6628", "simhash": "1:ac1b1606571e6ad6", "word_count": 3250 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ARNOLD and C0Z0RT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALAN HOWARD PENDLETON" ], "opinions": [ { "text": "MARTIN, Judge.\nThis case brings into question the validity of Chapter 74A under both the State and Federal Constitutions. For the reasons set forth herein, we find that Chapter 74A is constitutional, both on its face and as applied to defendant.\nArticle I, Section 13 of the North Carolina Constitution guarantees to all persons the right to worship according to the dictates of their own consciences and that the State shall not, in any case whatever, control or interfere with the rights of conscience. Article I, Section 19 of the North Carolina Constitution prohibits discrimination by the State against any person because of that person\u2019s religion. The First Amendment to the Constitution of the United States provides that \u201cCongress shall make no law respecting an establishment of religion . . .\nThese constitutional provisions are said to guarantee \u201cfreedom of religious profession and worship, \u2018as well as an equally firmly established separation of church and state.\u2019 \u201d Church v. State, 299 N.C. 399, 406, 263 S.E.2d 726, 730 (1980), quoting Braswell v. Purser, 282 N.C. 388, 393, 193 S.E.2d 90, 93 (1972). A legislative enactment violates these constitutional provisions if such enactment, \u201cwhether in purpose, substantive effect, or administrative procedure, tends to control or interfere with religious affairs, or discriminate along religious lines, or to constitute a law respecting the establishment of religion.\u201d Church, 299 N.C. at 406, 263 S.E.2d at 730. What these constitutional mandates demand is secular neutrality toward religion. Id.\nAlthough our analysis of the constitutionality of Chapter 74A will focus primarily on the United States Supreme Court\u2019s interpretations of the Establishment Clause, our decision is nonetheless grounded on the requirements of the North Carolina Constitution. As our Supreme Court has said, \u201calthough the differences in terminology in the relevant North Carolina and federal constitutional provisions, may support in some cases differences in scope of their application, . . . the neutrality demanded by the First Amendment is also compelled by the conjunction of Sections 13 and 19 of Article I.\u201d Church, 299 N.C. at 406, n.1, 263 S.E.2d at 730, n.1.\nThe United States Supreme Court, in interpreting the Establishment Clause of the United States Constitution, has developed a three-pronged analytical scheme for determining the facial constitutionality of legislative enactments under the Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745 (1971). This analytical scheme, known as the Lemon test, is stated as follows:\nFirst, 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 \u2018an excessive government entanglement with religion.\u2019 (Citations omitted.)\nId. at 612-13, 29 L.Ed.2d at 755.\nWe now apply the Lemon test to determine whether Chapter 74A is constitutional on its face. G.S. \u00a7 74A-1 provides in pertinent part:\nAny educational institution or hospital, whether State or private, or any other State institution, public utility company, construction company, manufacturing company, auction company, incorporated security patrols or corporations engaged in providing security or protection services for persons or property, may apply to the Attorney General to commission such persons as the institution, corporation or company 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. Nothing contained in the provisions of this section shall have the effect to relieve any such company or corporation from any civil liability for acts of such policemen, in exercising or attempting to exercise the powers conferred by this Chapter.\nG.S. \u00a7 74A-2 provides 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. \u00a7 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. \u00a7 74A-2(e)(l). In addition, the authority of such college or university policemen may be extended by agreement between the employer institution\u2019s board of trustees and the governing board of the municipality or county in which the institution is located. N.C. Gen. Stat. \u00a7 74A-2(e)(2) and (3).\nUnder the Lemon test, we must first determine whether the Chapter has a secular legislative purpose. Our review of Chapter 74A reveals nothing that evinces an intent to aid, promote, restrict, hinder, or otherwise affect any religion or any religious organization. Likewise, the Chapter is devoid of any provision which could be deemed to manifest a preference for one religion over any other religion. The ability of an institution or company to have its employees commissioned as policemen is not dependent upon its status as a secular or sectarian institution. Clearly, Chapter 74A reveals a valid secular purpose; that of extending to institutions, companies, hospitals and the like, both private and public, the police power of the State for the purpose of protecting persons and property located on their premises. Thus, we conclude that Chapter 74A has a secular legislative purpose.\nSecond, we must determine whether the Chapter\u2019s primary effect is to advance or inhibit religion. The Establishment Clause is violated if a State enacts laws which \u201caid one religion, aid all religions, or prefer one religion over another.\u201d However, legislation which provides some incidental or remote advantage to a religious organization does not run afoul of the Establishment Clause. Bowen v. Kendrick, 487 U.S. 589, 101 L.Ed.2d 520 (1988); Mueller v. Allen, 463 U.S. 388, 77 L.Ed.2d 721 (1983). Where the class benefitted by the legislative enactment is large, the more likely it will be that \u201cthe advantages to religious institutions will indeed be incidental to secular ends and effects.\u201d Public Funds for Public Schools of N.J. v. Byrne, 590 F.2d 514, 518 (3d Cir. 1979). Defendant argues that the effect of the Chapter, as applied in this case, is to advance the religious principles of Campbell University. We disagree.\nDefendant bases his contention on evidence that the University prohibits the consumption of alcoholic beverages on University property and that its rules also restrict opposite sex visitation in the University\u2019s campus dormitories. Officer Jones testified that he does not enforce University regulations, rather he reports such violations to the University\u2019s dean. In addition, Officer Jones testified that if he was notified that alcoholic beverages were being consumed in a campus dormitory, he would record the names of the persons involved and hold the alcoholic beverages for University authorities. These actions would be taken even if the individuals involved were not violating the law of this State.\nDefendant contends that when Campbell policemen enforce the University\u2019s rules of conduct, they are exercising the authority granted to them by the State under Chapter 74A, thereby creating the appearance of state endorsement of the University\u2019s religious beliefs and practices. This apparent state endorsement, argues defendant, confers a benefit on the University in violation of the Establishment Clause. We disagree.\nAs previously noted, Chapter 74A makes no distinction between religious and secular institutions. The Chapter applies to hospitals and educational institutions, whether state or private, public utilities, construction companies, manufacturing companies, auction companies and private security corporations. We believe that the Chapter\u2019s breadth of application is a strong indication that its primary effects are secular. Public Funds for Public Schools of N.J. v. Byrne, 590 F.2d 514.\nIn addition, the primary benefits which flow from a grant of authority under Chapter 74A are strictly secular in nature. Public and private organizations are benefitted by having increased authority to protect persons and property located on their premises and the State is benefitted by the increased law enforcement which is provided without expense to the State. The State certainly has an interest in the enforcement of its laws and the protection of its citizens and their property.\nAssuming arguendo that Chapter 74A somehow aids Campbell University in its alleged efforts to promote certain religious practices and beliefs, the aid received is clearly indirect, insubstantial, and incidental. We find nothing in Chapter 74A which indicates anything other than an intent to pursue a course of complete neutrality toward religion. Wallace v. Jaffree, 472 U.S. 38, 86 L.Ed.2d 29 (1985). That Campbell University may incidentally benefit by having its employees commissioned under Chapter 74A, does not render the Chapter unconstitutional.\nThere is nothing in the First Amendment which prevents religious institutions from participating in benefits which are equally available to secular institutions. Bowen v. Kendrick, 487 U.S. 589, 101 L.Ed.2d 520 (1988); Bradfield v. Roberts, 175 U.S. 291, 44 L.Ed. 168 (1899). To differentiate between those institutions which are religiously affiliated and those which are not so affiliated would be to favor the secular over the religious. Article I, Section 19 of the North Carolina Constitution forbids \u201cdiscrimination by the State because of . . . religion . . . .\u201d For the foregoing reasons, we hold that the primary effect of Chapter 74A is neither to advance nor inhibit religion.\nFinally, we must determine whether Chapter 74A fosters an excessive entanglement between the State and religion. \u201cExcessive entanglement\u201d cases typically arise when the government authorizes financial grants to a program whose participants include institutions which are religiously affiliated. Bowen, 487 U.S. at 616, 101 L.Ed.2d at 545. Financial grants will be found to foster \u201cexcessive entanglement\u201d if they necessitate government oversight of the religious institution\u2019s affairs in order to insure that the aid flowing to the institution is utilized for secular purposes and not for the advancement of religion. Id. at 615, 101 L.Ed.2d at 544.\nThis case simply does not involve a flow of taxpayer monies to a religious institution and therefore does not present the need for government oversight which would create the possibility of \u201cexcessive entanglement.\u201d The \u201caid\u201d provided to Campbell University by Chapter 74A, the delegation of law enforcement authority, is distinctly different in nature from the provision of financial aid to a religiously affiliated institution. Whereas financial aid may be utilized in a manner which would violate the Establishment Clause, the exercise of law enforcement authority is strictly a secular function.\nMoreover, there is nothing in Chapter 74A which would otherwise indicate a need for government supervision of Campbell University or its police officers. If Chapter 74A can be said to create some interrelationship between the State and the University, it certainly does not amount to an intrusion by the State into the University\u2019s internal affairs. See Aguilar v. Felton, 473 U.S. 402, 409-10, 87 L.Ed.2d 290, 297-98 (1985).\nDefendant contends that there is an \u201cexcessive entanglement\u201d in this case because Campbell police officers are employed to perform two roles for the University. One role performed by Campbell policemen is enforcement of the laws of the State. The other role, according to defendant, is enforcement of the student code of conduct. Defendant argues that allowing Campbell police officers to enforce the student code of conduct while cloaked with the authority of the State fosters \u201cexcessive entanglement.\u201d We disagree.\n\u201cExcessive entanglement\u201d is the phrase which has been used to describe government involvement in the affairs of the church and, vice versa. A legislative enactment is said to foster an \u201cexcessive entanglement\u201d between church and state when the enactment necessitates \u201csustained and detailed administrative relationships\u201d between the church and state. Walz v. Tax Commission, 397 U.S. 664, 675, 25 L.Ed.2d 697, 705 (1970).\nIn this case, policemen commissioned under Chapter 74A are not employees of the State and there is nothing in the Chapter which requires or necessitates that they be supervised by the State. Rather, the supervision of the policemen is the responsibility of their employers and their employers remain civilly liable for acts committed by the policemen in the exercise or attempted exercise of their authority. N.C. Gen. Stat. \u00a7 74A-1. Simply stated, Chapter 74A does not by its terms require, or by its effects necessitate, government involvement in the affairs of the University. Thus, even if the nature of an officer\u2019s employment by Campbell University is twofold, the State has no involvement in the University\u2019s affairs which could be deemed to constitute an \u201cexcessive entanglement.\u201d\nDefendant also contends that there is an \u201cexcessive entanglement\u201d between the State and Campbell University because Ricky Symmonds, who is employed and paid by the Harnett County Sheriff\u2019s Department, acts as the chief of the Campbell University police force. We disagree.\nG.S. \u00a7 74A-4 specifically provides that the compensation of policemen commissioned under the Chapter shall be paid by their employers. Adherence to the dictates of the Chapter insures that university and college police are independent from state and local government. While the agreement between Campbell University and Harnett County regarding Deputy Symmonds\u2019 compensation may be in violation of G.S. \u00a7 74A-4, the question of the legality of that agreement is not before us and it has no bearing on our inquiry regarding the constitutionality of Chapter 74A. For the reasons set forth above, we hold that Chapter 74A does not create an excessive entanglement between church and state.\nIn the alternative, defendant argues that the delegation of a governmental function to Campbell University is itself violative of the Establishment Clause. In support of this contention, defendant cites Larkin v. Grendel\u2019s Den, Inc., 459 U.S. 116, 74 L.Ed.2d 297 (1982). Larkin involved a Massachusetts statute which vested \u201cin the governing bodies of churches and schools the power to effectively veto applications for liquor licenses within a five hundred foot radius of the church or school[.]\u201d Larkin, 459 U.S. at 117, 74 L.Ed.2d at 301. The Larkin court found that the statute at issue was violative of the Establishment Clause. The facts of Larkin, however, are distinguishable from the facts in this case.\nIn Larkin, the institutions that were vested with governmental powers were churches. Although Campbell University is church affiliated, it is a university, not a church. Moreover, Chapter 74A grants law enforcement authority to individuals employed by certain institutions; the Chapter does not grant law enforcement authority to the institution itself.\nUnder the statute in Larkin, the churches\u2019 power to restrict the issuance of liquor licenses was standardless. Id. at 125, 74 L.Ed.2d at 306. In rendering their decisions, the churches were not required to state the reasons for their decisions, or even to make any findings in support thereof. Id. Their power was absolute and was no substitute for the reasoned decision making of a body guided by legal standards. Id. at 127, 74 L.Ed.2d at 307.\nContrary to the authority of the churches in Larkin, the authority of officers commissioned under Chapter 74A is guided by the law of this State to the same extent and degree as all other municipal and county police. In addition, the authority delegated to the churches in Larkin was the authority to make legislative or adjudicatory decisions. The authority delegated under Chapter 74A involves no decision making authority. Based on the foregoing factual differences between this case and Larkin, we hold that the Chapter\u2019s delegation of law enforcement authority does not violate the Establishment Clause.\nIn summary, we hold that 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\u2019s law enforcement authority. For the reasons set forth herein, the order of the trial court dismissing defendant\u2019s conviction is reversed.\nReversed.\nJudges ARNOLD and C0Z0RT concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Valerie B. Spalding, for the State.", "Stewart and Hayes, P.A., by Gerald W. Hayes, Jr., and Lytch, Tart and Fusco, P.A., by Phillip A. Fusco, for defendant-appellee.", "Robert A. Buzzard for Campbell University, amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALAN HOWARD PENDLETON\nNo. 9211SC880\n(Filed 5 October 1993)\nConstitutional Law \u00a7 121 (NCI4th)\u2014 Campbell University employees \u2014commissioning as policemen \u2014 enabling statute not unconstitutional\nN.C.G.S. Chapter 74A authorizing the Attorney General to commission as policemen the employees of certain public and private institutions or companies does not violate the Establishment Clause of the First Amendment because it permits employees of a religious institution, Campbell University, to be commissioned as policemen and thereby exercise the authority of the State, since 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\u2019s law enforcement authority. Therefore, defendant\u2019s arrest for DWI by a Campbell University police officer was not unconstitutional. N.C.G.S. \u00a7 74A-1.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 466-470, 477.\nAppeal by the State from order entered 29 April 1992 by Judge Steve Allen in Harnett County Superior Court. Heard in the Court of Appeals 14 June 1993.\nThe following facts pertinent to this appeal are not disputed by the parties. Campbell University, located in Buies Creek, North Carolina, is affiliated with the Baptist State Convention of North Carolina. Campbell University operates a police force consisting of a captain and eight full-time officers. Campbell University\u2019s police officers were commissioned as police officers by the Attorney General under the provisions of the North Carolina General Statutes, Chapter 74A. Chapter 74A authorizes the Attorney General to commission as policemen the employees of certain public and private institutions or companies.\nAt the times relevant to this appeal, Ricky Symmonds was employed as a deputy sheriff by the Harnett County Sheriff\u2019s Department. While so employed, Symmonds also acted as the chief of Campbell University\u2019s police force. Reed Jones was employed as a police officer by the University. Defendant, Alan Howard Pendleton, was an undergraduate student at the University and resided in a campus dormitory.\nOn 12 April 1991, at 1:05 a.m., Officer Jones observed defendant operating an automobile on a public highway near the University. Jones followed defendant as defendant traveled toward the University campus. Defendant crossed the center line of the roadway several times and weaved back and forth within his lane of travel. Jones stopped defendant and arrested him for driving while impaired. On 26 June 1991, defendant was convicted in the Harnett County District Court of driving while impaired. He appealed to the Superior Court.\nOn 3 September 1991, defendant filed in the Superior Court a motion to dismiss his conviction on the ground that Chapter 74A violates the First Amendment of the Constitution of the United States, and Article I, Sections 13 and 19 of the North Carolina Constitution. Specifically, defendant alleged that Chapter 74A is unconstitutional because it permits employees of a religious institution to be commissioned as policemen and thereby exercise the authority of the State. Defendant further alleged that by granting police powers to a private, church-owned university, Chapter 74A \u201cenables state authority to intervene in the church agency and visa [sic] versa, thus violating the separation of church and state.\u201d\nOn 29 April 1992, the trial court entered an order dismissing defendant\u2019s conviction, concluding that Chapter 74A is unconstitutional on the grounds that it creates an excessive entanglement of the State and the church, and it \u201cconstitutes an impermissible delegation of authority to a religious institution as it is an establishment of religion.\u201d The trial court further concluded that defendant\u2019s arrest was unconstitutional in that it was affected by an unconstitutional exercise of the State\u2019s police power. Based on these conclusions, the trial court allowed defendant\u2019s motion to dismiss his conviction. The State appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Valerie B. Spalding, for the State.\nStewart and Hayes, P.A., by Gerald W. Hayes, Jr., and Lytch, Tart and Fusco, P.A., by Phillip A. Fusco, for defendant-appellee.\nRobert A. Buzzard for Campbell University, amicus curiae." }, "file_name": "0171-01", "first_page_order": 201, "last_page_order": 210 }