concurring.
[¶ 13] On remand, the trial court did exactly as it was instructed by Justices Meschke, Maring, and VandeWalle in State v. Burckhard, 1998 ND 121, 579 N.W.2d 194 Burck-hard I. The appellant is now here asking us to overrule that majority.
[¶ 14] I disagreed with that majority in Burckhard I, and I still disagree with them today. I still believe the State is entitled to ask one explicit question of the church’s hierarchical representative, Bishop Sullivan: “Was Father Burckhard authorized to spend the money as he did?” However, I also still believe this is the only question the State may constitutionally ask of the church’s hierarchy.
[¶ 15] Unfortunately, the State, in its brief, displays a curiosity for detail, explanation and justification that goes far beyond what I believe is the limit imposed by the First Amendment of the U.S. Constitution. The State professes a desire to cross-examine Bishop Sullivan at length as to what he knew and when he knew it, whether the Bishop changed his mind about prosecuting Father Burckhard, and why he may have changed it, and a great many other details, all apparently intended to challenge the Bishop’s veracity as he seeks to speak with hierarchical authority, and to subject the correctness of that hierarchical authority to a critical review and final determination by a jury in a North Dakota court of law.
[¶ 16] I thought Justice Sandstrom’s opinion in Burckhard I, the opinion in which I concurred, made it quite clear that any attempt to reach beyond the question of Father Burckhard’s authority, any attempt to probe the validity, veracity, or accuracy of the Bishop’s pronouncement regarding that authority, would be strictly forbidden by the First Amendment. Apparently, the opinion was not clear enough to deter the State from venturing into such forbidden territory.
[¶ 17] Normally, I would dissent from the majority’s opinion because I believe it reflects an unnecessary and unjustified hypersensitivity to what it envisions and describes as an entanglement problem. However, given the State’s persistent expression of a desire to mount an unconstitutional challenge to church authority in this matter, despite the cautions and caveats contained in both Justice Sandstrom’s and Justice Meschke’s opinions in Burckhard I, in this case, I concur in the result.
[¶ 18] Dale Sandstrom, concurs.