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Munns v. Martin

January 30, 1997


Appeal from Superior Court of Walla Walla County. Docket No: 94-2-00620-8. Date filed: 03/11/96. Judge signing: Hon. Yancey Reser.

Authored by Philip A. Talmadge. Concurring: Barbara Durham, Charles Z. Smith, Richard P. Guy, Gerry L. Alexander, Richard B. Sanders. Dissenting: James M. Dolliver, Barbara A. Madsen, Charles W. Johnson.

The opinion of the court was delivered by: Talmadge


TALMADGE, J. -- We are confronted yet again with the question of whether a local land use ordinance designed to further historic preservation and aesthetic purposes violates our State's free exercise of religion clause, Wash. Const., art. I, sec. 11 (amend. 34) when applied to a structure that is part of a church's religious ministry.

Walla Walla's demolition permit ordinance provides a "cooling off period" during which the religious organization is subject to negotiation with governmental and private authorities before an historic or architecturally significant structure can be demolished. The ordinance is an administrative burden on the religious ministry of the Roman Catholic Church and the ordinance involved no compelling state interest. We hold the Walla Walla ordinance is unconstitutional under article I, section 11 as applied. ISSUES

1. Does article I, section 11 apply to a church building that is not a "house of worship" but is used for religious purposes?

2. Does the Walla Walla ordinance constitute an administrative or financial burden on the free exercise of religion by the Roman Catholic Church? FACTS

The Catholic Bishop of Spokane (the Bishop) wishes to demolish St. Patrick's School in Walla Walla and replace it with a new pastoral center. *fn1 Built in 1928, the building was used primarily as a school until 1974. Since then, the parish has used it for various purposes, including educational, social, and community. The new pastoral center will be "used for religious education, outreach programs, parish social activities related to church celebrations and Sacraments, parish retreat programs such as marriage encounter, renewal, cursillos [Spanish for "little course," a short course of study, specifically of intensive religious studies and exercises], and activities of other Catholic organizations." Clerk's Papers at 108-09. There is no dispute that the proposed functions of the pastoral center will be in furtherance of the church mission.

Local opposition to the proposal developed. The individual members of the St. Patrick Parishioners and Friends of Historic Preservation are the petitioners/appellants in this case. Of the seven members of this group, six are members of St. Patrick Parish and one is not. Munns is the former parishioner, but is a graduate of St. Patrick School. "The Petitioners seek to prevent the demolition of the 1928 building in furtherance of their desire to preserve and to renovate the 1928 building." Clerk's Papers at 4, 44. They contend the building is the only example of Romanesque revival architecture in Walla Walla, and was built to complement the Gothic architecture of the St. Patrick Church built in 1881. Through the appellants' efforts, and against the objections of the Bishop, the Washington Advisory Council on Historic Preservation in early 1995 listed the building on the Washington State Register of Historic Places, after the Bishop had applied for the demolition permit. The building is not on the National Register of Historic Places because of the Bishop's objection.

On July 25, 1994, the Bishop, through the St. Patrick Parish Building Committee, applied to the City of Walla Walla for a demolition permit. By letter of July 26, Respondent Robert C. Martin, the City's Development Services Manager, sought comments from individuals who might have concerns about the historic and architectural significance of St. Patrick's School pursuant to the Walla Walla Municipal Code, which contains a chapter on conversion of historic structures. Based on the comments the City received during the 10-day holding period (numerous letters protesting demolition), on August 15, 1994, Martin declared a 60-day stay in the issuance of the demolition permit to allow for a hearing before the Planning Commission.

Subsequently, after consultation with the Walla Walla City Attorney, Martin sent a letter on September 13 to the Bishop's local attorney rescinding the stay, and informing the Bishop he intended to issue a Determination of Non-significance (DNS) on September 19, 1994. Martin gave as the reason for rescinding the stay the holding in First Covenant Church v. City of Seattle, 120 Wash. 2d 203, 223, 840 P.2d 174 (1992), in which this Court held a city's interest in preservation of aesthetic and historic structures was not compelling, and therefore an historic preservation ordinance violated the First Amendment. The letter also cited article I, section 11 of the state constitution as authority.

On September 29, 1994, the appellants filed a petition for a Writ of Mandamus in Walla Walla County Superior Court, asking the court to issue a writ requiring Martin and the City of Walla Walla to impose the 60-day stay pursuant to WWMC 20.146.040(B)(1), to hold a hearing on the demolition permit application before the Planning Commission, and to receive comment pursuant to WAC 197-11-330(3)(e)(i), a SEPA rule dealing with the threshold determination process. *fn2 On October 10, 1994, the trial court entered an agreed Order Prohibiting Demolition Permit. The order stayed the issuance of the demolition permit pending further court order.

Up to this point, the Bishop had not been a party to the proceedings. On November 1, 1994, the trial court issued an order permitting the Bishop to intervene and to file an answer to the petition for the writ. The Bishop filed a response on March 24, 1995, alleging as an affirmative defense the City's constitutional inability to prevent the demolition, and praying for dismissal of the writ petition and vacation of the order prohibiting the issuance of the demolition permit.

The parties filed Stipulated Facts and the court heard the case on December 11, 1995. Thereafter, the court issued a Memorandum Decision on February, 22, 1996, and subsequently entered Findings of Fact, Conclusions of Law & Order of Dismissal on March 11. The trial court concluded the administrative restrictions -- the municipal ordinance requiring at most a 14-month delay, and the SEPA rule requiring consideration of the impact of the loss of historic and cultural areas -- were a burden on the free exercise of religion, and thus in violation of both the state and federal constitutions. The court ordered dismissal of the petition for the writ of mandamus. The court also set aside its previous order prohibiting issuance of the demolition permit. The appellants appealed directly to this Court and we granted review. RAP 4.2(a).



Our decisions in First Covenant Church v. City of Seattle, 114 Wash. 2d 392, 787 P.2d 1352 (1990), rev'd, 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d 208 (1991) (First Covenant I); First Covenant Church v. City of Seattle, 120 Wash. 2d 203, 215, 840 P.2d 174 (1992) (First Covenant II); and First United Methodist Church v. Hearing Examiner, 129 Wash. 2d 238, 916 P.2d 374 (1996), largely govern the analysis of article I, section 11 and the free exercise of religion. This Court applies a strict scrutiny test to the analysis of religious exercise cases:

Since free exercise of religion is a fundamental right, First Covenant I applied the strict scrutiny test of Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963).

Under this test, the complaining party must first prove the government action has a coercive effect on the practice of religion. Once a coercive effect is established, the burden of proof shifts to the government to show the restrictions serve a compelling state interest and are the least restrictive means for achieving the government objective. If no compelling state interest exists, the restrictions are unconstitutional. First United Methodist, 129 Wash. 2d at 246.

The first prerequisite for any free exercise challenge is that the parties have a sincere religious belief. "To qualify for First Amendment protection individuals must prove only that their religious convictions are sincere and central to their beliefs. The court will not inquire further into the truth or reasonableness of the individual's convictions." Backlund v. Board of Comm'rs, 106 Wash. 2d 632, 639, 724 P.2d 981 (1986), appeal dismissed, 481 U.S. 1034, 107 S. Ct. 1968, 95 L. Ed. 2d 809 (1987). No party has raised any question of the sincerity or centrality of the beliefs of the Roman Catholic Church or the Bishop of Spokane.

The second question for analysis is whether the challenged enactment or action constitutes a burden on the free exercise of religion. The Court's prior holdings in First Covenant I, First Covenant II, and First United Methodist are dispositive as to whether an action or enactment is a burden on religious exercise. As we noted in First Covenant II:

Article 1, section 11 of the state constitution absolutely protects "freedom of conscience in all matters of religious sentiment, belief, and worship" and guarantees that "no one shall be molested or disturbed in person or property on account of religion." This constitutional guaranty of free exercise is "of vital importance." Bolling, 16 Wash. 2d at 381. If the "coercive effect of [an] enactment" operates against a party "in the practice of his religion", it unduly burdens the free exercise of religion. Witters v. Comm'n for the Blind, 112 Wash. 2d 363, 371, 771 P.2d 1119, cert. denied, 493 U.S. 850 (1989); Sumner, 97 Wash. 2d at 5. A facially neutral, even-handedly enforced statute that does not directly burden free ...

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