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State of Idaho v. Levon Fred Cordingley

March 21, 2013


Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge; Hon. Thomas P. Watkins, Magistrate.

The opinion of the court was delivered by: Gutierrez, Chief Judge

2013 Opinion No. 18

Stephen W. Kenyon, Clerk

Decision, on intermediate appeal, affirming magistrate's order denying motion to dismiss possession of marijuana and paraphernalia charges, affirmed.

Levon Fred Cordingley appeals from the district court's intermediate appellate decision affirming the magistrate's denial of his motion to dismiss the possession of marijuana and paraphernalia charges against him on the basis his right to religious freedom under the Idaho Free Exercise of Religion Protected Act (FERPA), Idaho Code §§ 73-401 to 73-404, was violated by enforcement of the controlled substances statutes. For the reasons set forth below, we affirm.



In February 2008, Cordingley was arrested after officers found him in possession of marijuana and related paraphernalia. He was cited for possession of marijuana, I.C. § 37-2732, and marijuana paraphernalia, I.C. § 37-2734A. He filed a motion to dismiss the charges, arguing his possession of the drug and associated paraphernalia was an exercise of his religion and, therefore, protected under the FERPA. At a hearing before the magistrate on the motion, Cordingley testified he was the founder of the Church of Cognitive Therapy (COCT), established specifically for the use of marijuana as a "sacrament."

The magistrate issued an order denying the motion to dismiss, determining Cordingley failed to meet his burden to show he was engaged in statutorily recognized religious practice protected by the FERPA. Cordingley entered a conditional guilty plea to the charges, reserving his right to appeal the denial of his motion to dismiss. On intermediate appeal, the district court affirmed the magistrate's ruling, also concluding the COCT did not constitute a "religion" for purposes of the statute.*fn1 Cordingley now appeals.


Cordingley contends the district court erred in affirming the magistrate's denial of his motion to dismiss on the basis the controlled substances statutes violate his right to religious freedom under the FERPA. On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Id. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Id.

The operative provision of the FERPA states, in relevant part: 73-402. Free exercise of religion protected.

(1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral.

(2) Except as provided in subsection (3) of this section, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

(3) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:

(a) Essential to further a compelling governmental interest;

(b) The least restrictive means of furthering that compelling governmental interest.

(5) In this section, the term "substantially burden" is intended solely to ensure that this chapter is not triggered by trivial, technical or de minimus infractions.

Additionally, the Act provides the following definitions in Idaho Code § 73-401:

(1) "Demonstrates" means meets the burdens of going forward with evidence, and persuasion under the standard of clear and convincing evidence.

(2) "Exercise of religion" means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

(5) "Substantially burden" means to inhibit or curtail religiously motivated practices.

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute, and its legislative history. Id.

The legislative history of the FERPA makes it clear that in adopting the statute, the Idaho legislature intended to adopt the "compelling interest test" contained in its federal counterpart, the Religious Freedom Restoration Act (RFRA), which the United States Supreme Court held in City of Boerne v. Flores, 521 U.S. 507, 536 (1997) was invalid as it applied to states. Statement of Legislative Intent, 2000 Idaho Sess. Laws ch. 133, § 1.*fn2 Thus, as we recognized in State v. White, 152 Idaho 361, 364-65, 271 P.3d 1217, 1220-21 (Ct. App. 2011), the Ninth Circuit's reference to the "compelling interest test" in interpreting the RFRA, is instructive:

To establish a prima facie RFRA claim, a plaintiff must present evidence sufficient to allow a trier of fact rationally to find the existence of two elements. First, the activities the plaintiff claims are burdened by the government action must be an "exercise of religion." Second, the government action must "substantially burden" the plaintiff's exercise of religion. If the plaintiff cannot prove either element, his RFRA claim fails. Conversely, should the plaintiff establish a substantial burden on his exercise of religion, the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a "compelling governmental interest" and is implemented by "the least restrictive means." If the government cannot so prove, the court must find a RFRA violation.

Id. (quoting Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (internal citations omitted)).

Therefore, Cordingley must carry the burden of showing that Idaho's controlled substance statutes substantially burden his exercise of "religion" as protected by the statute. Our review of whether he carried this burden, although largely factual in nature, presents mixed questions of fact and law. White, 152 Idaho at 365, 271 P.3d at 1221. See also United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996). The meaning of the FERPA, including the definitions as to what constitutes a substantial burden and the exercise of a "religious" belief, and the ultimate determination as to whether the FERPA has been violated is reviewed de novo. White, 152 Idaho at 365, 271 P.3d at 1221. Sincerity is a factual matter and, as with historical and other underlying factual determinations, we defer to the lower court's findings, reversing only if those findings are clearly erroneous. Id. In addition, determining whether a person's act is substantially motivated by a "religious" belief requires determinations of fact. Id. See also Toca v. State, 834 So. 2d 204, 209 (Fla. Dist. Ct. App. 2002) (discussing the issue of whether the defendant was, in truth, motivated by religious belief).*fn3 Thus, although the issue of whether a belief motivating a particular practice is "religious" is a question of law, the question of what comprises the substantial motivation behind a defendant's conduct--i.e., whether the defendant is motivated by "religious" (as encompassed by the FERPA) or secular purposes--is a question of fact to which we defer to the lower court unless its finding is clearly erroneous. White, 152 Idaho at 365, 271 P.3d at 1221.

In denying Cordingley's motion to dismiss, the magistrate first noted it was undisputed that Cordingley's beliefs were both sincerely held and substantially burdened by the applicable controlled substances statutes. The magistrate then analyzed whether Cordingley's beliefs are "religious" such that the FERPA is implicated, relying on a multi-factor test utilized by the Tenth Circuit Court of Appeals in Meyers, 95 F.3d 1475 to determine whether a particular set of beliefs is "religious" under the RFRA. The magistrate surmised:

As Cordingley explained, the COCT is a community within with an emphasis on spirituality, rather than an emphasis on any particular religious beliefs. The goal is to attain enlightenment. This enlightenment can be had by Catholics, Jews, and even atheists. The only connecting fiber among the various members is their use of marijuana to help them in this pursuit. Despite some of the trappings of religion, this is nothing more than a basic philosophical belief that such use will help with enlightenment. This Court believes that more is required to establish religious beliefs that are protected under Idaho law.

On intermediate appeal, the district court affirmed the magistrate's denial of Cordingley's motion to dismiss, first indicating the magistrate did not err in utilizing Meyers as guidance into its inquiry of whether Cordingley's use of marijuana was "religious" in nature. The district court then affirmed the magistrate's finding that Cordingley had not carried his burden to show he was engaging in a "religious" practice:

Cordingley acknowledged that the Church of Cognitive Therapy is not so much a religion as it is a companion to religion. In reality, this church presents an ideology or philosophical belief as to how people can become spiritual or enlightened, but it does not have a comprehensive belief system with the trappings of a religion. There is no evidence that the church provides a belief system with answers to the problems and concerns that confront human beings or that it provides answers to questions about life, purpose, or death. The church does not promote a moral code or rely on any one set of teachings. Instead, the church provides a sacrament that is to be used as an accompaniment to other religious beliefs.

Cordingley's initial argument on appeal is that the magistrate erred in utilizing the test adopted by the Tenth Circuit Court of Appeals in Meyers to determine whether his use of marijuana was "religious." Specifically, Cordingley contends the court's reliance on Meyers was erroneous since Meyers construes the RFRA, which was determined to be unconstitutional in Flores. Rather, he asserts, the inquiry should focus on the plain language of the FERPA, which "does not involve a micro-inspection of an individual's belief system to determine whether a belief is sincerely held or is an actual religious conviction" as is dictated by Meyers.

Cordingley's argument is unavailing. The fact the RFRA was held to be unconstitutional as applied to the states is irrelevant; it continues to be applicable as to federal law, and we specifically noted in White that the caselaw interpreting the RFRA is instructive in interpreting the FERPA given that the Idaho legislature explicitly indicated it intended to adopt the RFRA's compelling interest test. White, 152 Idaho at 364-65, 271 P.3d at 1220-21. Although Meyers is certainly not controlling precedent, as we discuss below, it provides a helpful framework for the key inquiry of whether a particular practice is motivated by statutorily recognized "religion." Relatedly, Cordingley's assertion that the FERPA does not allow for a "micro-inspection" of whether a belief is an "actual religious conviction," is in direct contravention to White (as well as the overwhelming majority of both federal and state jurisprudence in this area) where we pointed out that "just because [an individual] has claimed that his impetus for smoking marijuana is religious, does not make it so for the purposes of the FERPA." White, 152 Idaho at 369, 271 at 1225. As we explicitly stated, "To establish a free exercise defense, a defendant must first show that his religion is bona fide and, by extension, that his conduct is actually motived by statutorily-recognized religious beliefs." Id. (emphasis added) (citation omitted).

Accordingly, we turn to the salient inquiry in this case--whether Cordingley's use of marijuana was substantially motivated by "religion" such that it is protected pursuant to the FERPA.*fn4 Although the FERPA defines the "exercise of religion" as "the ability to act or refusal to act in a manner substantially motivated by a religious belief," I.C. § 73-401(2), the statute does not define "religion" or "religious belief," and this issue has not been addressed by Idaho appellate courts. Nor does the RFRA include such a definition. In addition, "religion" is one of the few key terms, if not the only key term, of the First Amendment that the contemporary United States Supreme Court has not authoritatively and comprehensively defined, which has left lower courts to create various approaches to defining the term. Such an undertaking is not easy--as the United States Supreme Court has long recognized, determining whether a belief or practice is "religious" is a "difficult and delicate task." Thomas v. Review Bd. of Indiana Emp't Sec. Div., 450 U.S. 707, 714 (1981). Accord Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[A] determination of what is a 'religious' belief or practice entitled to constitutional protection may present a most delicate question . . . ."); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir. 1981) ("[W]hen an individual invokes the first amendment to shield himself or herself from otherwise legitimate state regulation, we are required to make such uneasy differentiations."). When undertaking this difficult determination, however, there are some applicable overarching principles. In United States v. Ballard, 322 U.S. 78, 86-88 (1944), the United States Supreme Court declared that courts may not consider whether the party's purportedly religious beliefs are true or false. The Ballard Court added, "The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position." Id. at 87.

Furthermore, in Thomas, 450 U.S. at 714, the United States Supreme Court held that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." If there is any doubt about whether a particular set of beliefs constitutes a religion, the court will err on the side of freedom and find the beliefs are a religion. United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995). On the other hand, in Yoder, the United States Supreme Court explained:

Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself . . . , their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.

Yoder, 406 U.S. at 215-16 (footnote omitted).*fn5

Without definitive guidance from the Supreme Court, various circuit courts of appeals, as well as state courts, have attempted to apply these principles by creating a variety of tests that generally, but not completely, overlap. Most widely utilized is the multi-factor test, a version of which was articulated by the Tenth Circuit Court of Appeals in Meyers, 95 F.3d 1475 and utilized by the magistrate and district court in this case. The genesis of this approach was a concurring opinion in Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979), and a form of its analysis has since been adopted by at least five of the federal circuit courts of appeals and numerous district and state courts. Under this test, to help determine whether a particular set of beliefs qualifies as "religious" under the RFRA or its state equivalent, a court examines the extent to which a party's asserted "religion" (1) addresses "deeper and more imponderable questions" of the meaning of life, man's role in the universe, moral issues of right and wrong, and other "ultimate concerns"; (2) contains an "element of comprehensiveness"; and (3) the "formal, external, or surface signs that may be analogized to accepted religions." Id. at 208-09 (Adams, J., concurring). See also Love v. Reed, 216 F.3d 682, 687-89 (8th Cir. 2000) (applying the Africa factors to determine whether inmate's vaguely Jewish beliefs and practices were "religious"); Alvarado v. City of San Jose, 94 F.3d 1223, 1229 (9th Cir. 1996) (adopting the test utilized in Africa); Dettmer v. ...

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