ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LARRY W. ROGERS JEFFREY A. MODISETT
Harper & Rogers Attorney General of Indiana
A. SCOTT CHINN
BRIEF OF AMICI CURIAE: Deputy Attorney General
ATTORNEYS FOR VALPARAISO Indianapolis, Indiana
WILLIAM H. WAGNER
MARK E. SCHMIDTKE
KEVIN G. KERR
Hoeppner, Wagner & Evans
COUNSEL FOR HANOVER COLLEGE:
HENRY C. RYDER
Barnes & Thornburg
COUNSEL FOR MARIAN COLLEGE:
Elmendorf & Meyer
BRISTOL C. MYERS, ) ) Appellant-Defendant, ) ) vs. ) No. 64A03-9808-CR-349 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
While driving his car near the campus of Valparaiso University, Bristol C. Myers was
arrested by a University police officer and thereafter charged with operating a vehicle while
intoxicated as a Class A misdemeanorSee footnote
and operating a vehicle with a blood alcohol content
greater than .10% as a Class C misdemeanor.See footnote
After a bench trial Meyers was found guilty
of the Class A misdemeanor. He now appeals
raising three issues for our review which we
rephrase as follows: 1) does Ind. Code § 20-12-3.5-1 et seq., which permits the creation of
university police forces, violate the First Amendment to the United States Constitution; 2)
are university police officers required to complete training conducted by the Indiana Law
Enforcement Academy; and 3) did the officer lack reasonable suspicion to initiate a traffic
stop? We conclude the statute is not unconstitutional; university police officers are not
required to complete training conducted by the Indiana Law Enforcement Academy; and the
officer in this case had reasonable suspicion to initiate a traffic stop.
We therefore affirm.
campus. In any event as he made the turn, the passenger door of his truck swung open
appearing to strike a parked vehicle. The officer followed Myers for a short distance and
then activated his overhead lights to initiate a traffic stop. When Myers exited his truck,
Officer Ezell observed that his eyes were glassy and bloodshot, and he had an odor of alcohol
on his breath. When asked if he had consumed any alcoholic beverages that night, Myers
responded affirmatively. In addition to failing a "walk and turn" field sobriety test, Myers
scored .16% on a chemical breath test. Myers was ultimately arrested and charged with
operating a vehicle while intoxicated and operating a vehicle with a blood alcohol content
greater than .10%. He was also given a traffic citation for driving left of center and for an
"equipment violation" related to the door of his truck swinging open. Myers filed a pretrial
motion to suppress the evidence based on three grounds: 1) the exercise of police power by
a private religious institution is unconstitutional; 2) the arresting officer, an employee of a
religious institution, had not undergone the training statutorily required of officers employed
by the State and therefore lacked authority to make an arrest; and 3) the officer lacked both
reasonable suspicion to stop Myers and probable cause to arrest him. The motion was
denied. After a bench trial Myers was convicted of driving while intoxicated as a Class A
misdemeanor. This appeal followed.
as a result of his arrest because the statutory authority under which the arresting officer
purportedly acted is unconstitutional. The statute in question is Ind. Code § 20-12-3.5-1
The Ball State University board of trustees, Indiana State University board of trustees, the trustees of Indiana University, the trustees of Purdue University, University of Southern Indiana board of trustees, the board of trustees of Vincennes University, and the governing board of any other college, university or junior college that is accredited by the North Central Association is authorized:
1) To appoint police officers for the institution for which it is
2) To prescribe their duties and direct their conduct;
3) To prescribe the distinctive uniforms for the police of the
institution or campus; and
4) To designate and operate emergency vehicles.
(Emphasis added). According to Myers, "this is a case where a statute vests governmental
power in the hands of a private institution dominated and controlled by religion." Brief of
Appellant at 10 (emphasis omitted).
We begin our analysis with well settled principles. Statutes are presumed to be constitutional and such presumption continues until clearly overcome by a showing to the contrary. Finney v. State, 491 N.E.2d 1029, 1031 (Ind. Ct. App. 1986); Lewis v. State, 484 N.E.2d 77, 79 (Ind. Ct. App. 1985). All doubts are resolved in favor of a statute's constitutionality. Regan v. State, 590 N.E.2d 640, 645 (Ind. Ct. App. 1992). The burden is
on the party challenging a statute to demonstrate its unconstitutionality. Finney, 491 N.E.2d
The First Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment Due Process Clause, provides "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof." U.S. Const. Amend. 1. At issue in this case is the free exercise clause. The Supreme Court has "repeatedly emphasized [its] unwillingness to be confined to any single test or criterion" when scrutinizing challenged legislation or official conduct to determine whether it violates the First Amendment. Lynch v. Donnelly, 465 U.S. 668, 679, 104 S. Ct. 1355, 1362, 79 L. Ed. 2d 604 (1984) (citing Tilton v. Richardson, 403 U.S. 672, 677-78, 91 S. Ct. 2091, 2095, 29 L. Ed. 2d 790 (1971); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773 n.31, 93 S. Ct. 2955, 2965 n.31, 37 L. Ed. 2d 948 (1973)). Indeed the Court has engaged in a robust debate concerning Establishment Clause jurisprudence. Nonetheless the Court has consistently used a three-pronged analytical scheme articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1970) as a guide in detecting unconstitutional government action. See, e.g., Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 385 n.7, 113 S. Ct. 2141, 2148 n.7, 124 L. Ed. 2d 352 (1993) (writing for the majority Justice White noted that "there is a proper way to inter an established decision, and Lemon however frightening it might be to some, has not been overruled.") The analytical scheme, known as the "Lemon test," is stated as follows: "[f]irst, 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 'an
excessive government entanglement with religion.'" Lemon, 403 U.S. at 612-13, 91 S. Ct.
at 2111See footnote
(citations omitted). We apply the test here as a guide in evaluating the
constitutionality of Ind. Code § 20-12-3.5-1.
Myers does not contend that the statute has anything other than a secular or legislative purpose. Indeed our own review of the statute reveals nothing that indicates an intent on the part of the legislature to either aid, promote, restrict, hinder, or otherwise affect religion or any religious organization. On its face the statute is neutral and applies to any post-secondary educational institution, public or private, that is accredited by the North Central Association.See footnote 4 The ability of a post-secondary educational institution to create a police force is not dependent upon its status as a secular or sectarian institution. We view the purpose of the statute here as merely extending to NCA accredited institutions of higher
learning the police power of the State in order to protect persons and property located on or
near their premises. This is clearly a secular legislative purpose.
Next we must determine whether the principal or primary effect of Ind. Code § 20-12- 3.5-1 is to advance or inhibit religion. The Establishment Clause is violated if a State enacts laws which "aid one religion, aid all religions, or prefer one religion over another." County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 591, 109 S. Ct. 3086, 3100, 106 L. Ed. 2d 472 (1989) (quoting Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15, 67 S. Ct. 504, 511-12, 91 L. Ed. 711 (1947)). However, legislation that 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, 609, 108 S. Ct. 2562, 2574, 101 L. Ed. 2d 520 (1988). We note from the outset our disagreement with Myers' unequivocal statement that Valparaiso University is a "religious institution" within the meaning of the Establishment Clause. Brief of Appellant at 111-12. We explore this issue in greater detail below under the third prong of the Lemon test. At this juncture, suffice it to say that the primary effect of Ind. Code § 20- 12-3.5-1 neither advances nor inhibits religion. As previously noted the statute makes no distinction between religious and secular institutions. It applies to all educational institutions of higher learning, whether public or private, provided they are accredited by the NCA. Further, the primary benefits which flow from a grant of authority for an NCA accredited institution to form a police force are strictly secular in nature. Public and private institutions 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 in the protection of its citizens and their property.
Finally we must determine whether Ind. Code § 20-12-3.5-1 fosters an excessive government entanglement with religion. Citing Larkin v. Grendel's Den Inc., 459 U.S. 116, 103 S. Ct. 505, 74 L. Ed. 2d 297 (1982), Myers argues that the delegation of governmental powers to a religious institution violates the Establishment Clause. 459 U.S. at 127, 103 S. Ct. at 512 (commenting that "[t]he Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions"). Although Larkin is instructive, it is not dispositive because it is distinguishable from the case before us. In Larkin a Massachusetts statute vested in the governing body of schools and churches the power to prevent issuance of liquor licenses for premises located within a 500-foot radius of the church or school by objecting to the license application. Appellee Larkin, a restaurant owner, applied for a liquor license that was denied because a church, located within 10 feet of the restaurant, objected. The restaurant owner filed suit contending, among other things, the statute on its face and as applied violated the Establishment Clause of the First Amendment. The trial court agreed and upon appeal the Supreme Court affirmed the trial court's judgment. In so doing the Court included in its analysis the three-pronged test articulated in Lemon. As for the third prong the Court noted:
Turning to the third phase of the inquiry called for by Lemon v. Kurtzman, we see that we have not previously had occasion to consider the entanglement implications of a statute vesting significant governmental authority in churches. This statute enmeshes churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the
Establishment Clause; '[t]he objective is to prevent, as far as possible, the
intrusion of either [Church or State] into the precincts of the other.'
. . . .
[This statute] substitutes the unilateral and absolute power of a church for the
reasoned decision making of a public legislative body acting on evidence and
guided by standards, on issues with significant economic and political
implications. The challenged statute thus enmeshes churches in the process of
government and creates the danger of '[p]olitical fragmentation and
divisiveness on religious lines.'
Larkin, 459 U.S. at 126, 103 S. Ct. at 127 (citations omitted) (emphasis added).
Unlike the Massachusetts statute in Larkin the statute here does not "substitute the unilateral and absolute power of a church for the reasoned decision making of a public legislative body." Id. First, Valparaiso University is not a church. However, assuming that Larkin applies to a religious institution whether or not it is a church, the record shows that although Valparaiso University is religiously affiliated, it is not a religious institution within the meaning of the First Amendment. Rather it is an institution of higher education affiliated with the Lutheran Church Missouri Synod. The Supreme Court has long recognized that in order to be characterized as a religious institution for First Amendment purposes, the religious character of the institution must be "so pervasive that a substantial portion of its functions are subsumed in the religious mission." Hunt v. McNair, 413 U.S. 734, 743 , 93 S. Ct. 2868, 2874, 37 L. Ed. 2d 923 (1973). Even "[f]ormal denominational control over a liberal arts college does not render all aid to the institution a violation of the Establishment Clause." Hunt, 413 U.S. at 746 n.8, 93 S. Ct. at 2876 n.8.
Lutherans, 25% Catholics, and the remainder of various other faiths. Although students are
required to complete nine hours of theology, religious courses dealing with the Lutheran faith
and a variety of other faiths may be taken to fulfill this requirement. Thus, although closely
affiliated with a religious denomination, Valparaiso University does not subordinate secular
education to religious doctrine. It functions neither as a church nor as a religious governing
body. It is clear to this court that the religious character of Valparaiso University is not "so
pervasive that a substantial portion of its functions are subsumed in the religious mission."
Hunt, 413 U.S. at 743, 93 S. Ct. at 2784. Accordingly we have no hesitancy concluding that
Valparaiso University is not a religious institution for First Amendment purposes. The
mandate of Larkin prohibiting a legislative body from substituting its reasoned decision
making for the unilateral and absolute power of "a church" is not applicable here.
Second, the challenged statute in Larkin conferred upon a religious institution the power to veto applications for liquor licenses. The religious institution thus effectively usurped the role of the State. Such abdication by the State excessively entangled church and state. Larkin, 459 U.S. at 127, 103 S. Ct. at 512. Religious authority completely supplanted civic authority, allowing churches to use civic authority for purely religious ends. By contrast the delegation of power in this case did not substitute the opinion of a religious body for that of the state and therefore did not fuse religious and governmental functions. "Where 'fusion' is an issue [as in Larkin], the difference lies in the distinction between a government's purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic
authority." Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 , 699, 114
S. Ct. 2481, 2489, 129 L. Ed. 2d 546 (1994). Neither abdication of state power to a religious
institution nor the resulting fusion of governmental and religious functions occurred here.
The police power exercised by Valparaiso University police officers serves not as a
standardless vehicle for the advancement or protection of religious interest but as a neutral
means of protecting the safety of all citizens and residents at or near the university. We
conclude that the objectives of the Establishment Clause of the First Amendment were not
impaired by the operation of Ind. Code § 20-12-3.5-1 because the statute did not create an
excessive entanglement between Church and State. The standard established by Larkin
clearly prohibits states from allowing churches to exercise civic authority without appropriate
standards and with the goal of protecting religious interests. The delegation in the case
before us was neither to a church nor a religious governing body, did not involve the exercise
of civic power without standards, and did not have the purpose or effect of protecting or
promoting religious interests. It thus did not run afoul of the Establishment Clause of the
First Amendment.See footnote
authorized to arrest him. According to Myers, at the time of arrest the officer had neither
taken nor completed the necessary training required of police officers pursuant to Ind. Code
§ 5-2-1-9(d) which provides in pertinent part:
[A] law enforcement officer appointed to a law enforcement department or agency after June 30, 1993, may not:
(1) make an arrest;
(2) conduct a search or a seizure of a person or property; or
(3) carry a firearm;
unless the law enforcement officer successfully completes, at a board certified
law enforcement academy, the basic training requirements established by the
board under this chapter.
There is no question that Officer Ezell did not complete the training anticipated by the statute. Rather, the record shows that he completed some amount of training at the Porter County Reserve Academy and a training program offered by the University. However, Ind. Code § 5-2-1-2 provides in pertinent part that the term "'law enforcement officer' shall mean an appointed officer or employee hired by and on the payroll of the state or any of its political subdivisions." As a private institution, Valparaiso University is not a political subdivision of the State. Thus, as an employee of the University, Officer Ezell was not the type of law enforcement officer regulated by Ind. Code § 5-2-1-1 et seq. Rather as a Valparaiso University police officer, Officer Ezell possessed "general police powers including the power to arrest, without process, all persons who within [his] view commit any offense." Ind. Code § 20-12-3.5-2(a).
roadway). A person of reasonable caution would believe the traffic stop in this case was
In conclusion we hold that Ind. Code § 20-12-3-5.1 et seq. which permits the creation of university police forces is not unconstitutional; university police officers are not required by law to attend and complete training conducted by the Indiana Law Enforcement Academy; and the officer in this case had reasonable suspicion to initiate a traffic stop. Accordingly the judgment of the trial court is affirmed.
DARDEN, J., concurs.
SULLIVAN, J., concurs with opinion.
COURT OF APPEALS OF INDIANA
BRISTOL C. MYERS, )
vs. ) No. 64A03-9808-CR-349
STATE OF INDIANA, )
SULLIVAN, Judge, concurring
With one exception, I fully concur in the affirmance of the conviction and in the
treatment of the issues by the majority opinion. That exception concerns the majority's
conclusion that the General Assembly made a conscious policy decision in I.C. 20-12-3.5-2
to exempt university police from the training requirements of I.C. 5-2-1-9(d). Rather, I
believe the failure to require such training of university police officers was a legislative
Minimum training requirements for municipal, county and state law enforcement officers were introduced into the law by Acts 1967, ch. 209, sec. 9. Statutory provisions for university police came about by virtue of Acts 1971, P.L. 329, sec. 1. Given the fact that
such university police were vested with full powers of arrest, it seems unlikely that the
legislature contemplated that the persons exercising such striking authority would do so with
little or no training.
For this reason, I write separately not only to agree with the majority that we are not privileged to rewrite a statute in order to render it consistent with our view of sound public policy but also to strongly and explicitly encourage the General Assembly to address this omission at the earliest legislative opportunity. Slip op. at 15 (quoting Robinson v. Monroe County (1996) Ind.App., 663 N.E.2d 196, 198).
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