State v. Hershberger

462 N.W.2d 393, 1990 Minn. LEXIS 341, 1990 WL 171343
CourtSupreme Court of Minnesota
DecidedNovember 9, 1990
DocketC9-88-2623
StatusPublished
Cited by94 cases

This text of 462 N.W.2d 393 (State v. Hershberger) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hershberger, 462 N.W.2d 393, 1990 Minn. LEXIS 341, 1990 WL 171343 (Mich. 1990).

Opinions

POPOVICH, Chief Justice.

The facts of this case are reported in Minnesota v. Hershberger, 444 N.W.2d 282 (Minn.1989) (Hershberger I). On appeal of that decision to the United States Supreme Court, certiorari was granted, the judgment was vacated, and the case was remanded to this court for reconsideration in light of the decision in Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. -, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (Smith II). Minnesota v. Hershberger, 494 U.S. -, 110 S.Ct. 1918, 109 L.Ed.2d 282 (1990). By order dated June 8, 1990, we required the parties to address two issues:

1. Whether Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. -, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), is controlling upon this court’s application of the free exercise clause of the first amendment of the United States Constitution in this case; and
2. Whether Minn.Stat. § 169.522 (1988) when applicable to these appellants violates rights protected by article I, section 16 of the Minnesota Constitution.

I.

At the outset, we must address the state’s request that this court reconsider our findings in Hershberger I, that the Amish appellants hold a sincere religious belief which forbids use of the SMV symbol, and that a less restrictive alternative to use of the symbol exists. While it is true that the United States Supreme Court’s vacation of Hershberger I leaves that decision without force or effect, Threlkeld v. Robbinsdale Fed’n of Teachers, Local 872, AFL-CIO, 316 N.W.2d 551, 552 (Minn.), appeal dismissed, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 40 (1982), the record before us remains as it was when we found the Amish appellants to have demonstrated a personal sincere religious belief in conflict with the SMV statute and the state to have failed to demonstrate that use of silver reflective tape in conjunction with lighted red lanterns does not constitute a less restrictive alternative to the SMV symbol. Hershberger I, 444 N.W.2d at 287, 289.

Reconsideration of these issues would be proper if the Supreme Court had [396]*396based its remand on a perceived error in their determination. See, e.g., Hill v. Western Elec. Co. 672 F.2d 381, 387-89 (4th Cir.) (court may reinstate prior findings upon remand after vacation on appeal if error has not affected the merits of the determination sought to be reinstated), cert. denied 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982); 18 Wright, Miller & Cooper, Federal Practice and Procedure, § 4432, at 171 (1990 Supp.) (“Following vacation by an appellate court and remand, * * * it may at times be appropriate to cure the defect that led to the appellate decision and to reinstate the original findings in the course of continued proceedings in the same case.” (emphasis added). The vacation and remand in this case goes to the application, as part of first amendment free exercise analysis, of the compelling state interest/least restrictive alternative test, and not to any perceived error in this court’s findings in Hershberger I. Appellants have demonstrated a willingness to be incarcerated to avoid using a symbol whose color and meaning are antithetical to their faith, establishing that their religious belief in opposition to the SMV symbol is sincere. We note again the state failed to establish use of reflective tape with lighted red lanterns is not a less restrictive alternative protecting public safety.

II.

While the practical application of Smith II remains to be seen, the Supreme Court appears to have significantly changed first amendment free exercise analysis. The Smith II court held a law of general application, which does not intend to regulate religious belief or conduct, is not invalid because the law incidentally infringes on religious practices. This holding apparently does away with the traditional compelling state interest test for laws burdening the exercise of religion standing alone. 494 U.S. at -, 110 S.Ct. at 1599-1603. The Smith II court limited the compelling state interest test used by this court in Hershberger I to claims involving not the free exercise clause alone, but free exercise in conjunction with other constitutional protections. Id. at -, 110 S.Ct. at 1601. These so called “hybrid” cases involve free exercise claims that touch on other constitutional protections ranging from parental rights, e.g., Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), to freedom of speech and press. E.g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Section 169.522 does not intend to regulate religious conduct or belief. Accordingly, under the first amendment free exercise clause as now interpreted by Smith II, whether the compelling state interest test is applicable apparently depends on whether requiring the Amish to comply with the SMV statute infringes on rights other than the free exercise of religion.

To establish a hybrid case under Smith II, appellants argue the compelled use of the SMV symbol touches on freedoms of assembly, speech, travel and particularly, freedom of association. The Amish community demonstrates the attributes of those associations traditionally deserving constitutional protection. The Amish community embodies “deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.” Roberts v. United States Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984). The United States Supreme Court has recognized that religious practices of the Amish “pervade[] and determine[] the entire mode of life of * * * adherents.” Yoder, 406 U.S. at 210, 92 S.Ct. at 1530. Buggy and other slow moving vehicle transportation is an integral part of the Amish communal life and worship, so that a statute infringing on such transportation impairs associational freedoms.

While there might be merit in deciding the case and affirming Hershberger I based on associational freedoms also infringed by the statute, thereby distinguishing Smith II, we decline to do so. It is unnecessary to rest our decision on the uncertain meaning of Smith II when the Minnesota Constitution alone provides an [397]*397independent and adequate state constitutional basis on which to decide. See, e.g., Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983) (respect for independence of state courts avoids federal review of issues of state law); L. Tribe, American Constitutional Law § 3-24, at 165-66 (2d ed. 1988) (doctrine of independent and adequate state grounds prevents interference with state’s interest in developing and applying its own law). We therefore decline to decide the applicability of Smith II to the facts before us.

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Cite This Page — Counsel Stack

Bluebook (online)
462 N.W.2d 393, 1990 Minn. LEXIS 341, 1990 WL 171343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hershberger-minn-1990.