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Any Reliance On AA or NA Participation During Parole Consideration Violates Establishment Clause
Any Reliance On AA or NA Participation During Parole
Consideration Violates Establishment Clause
by John E. Dannenberg
The United States District Court, E.D. Cal., ruled that requiring a California life prisoner to attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) as a predicate for parole constituted a state establishment of religion prohibited by the First Amendment. Furthermore, the court enjoined the Board of Prison Terms (BPT) from ever imposing such a requirement in the future, and ordered all records of past references to the prisoners failure to attend NA expunged from his prison records.
Charles Turner, serving a 15-life sentence for second degree murder since 1979, had been denied parole by the BPT eight times. Each time he was admonished to attend NA or AA prior to his next hearing. In 1997, BPT Commissioner Steven Baker (a former San Diego Police Detective, whose small son was murdered) drove his mandate home: Let me explain it to you so its real simple. Do you want to get out of prison?. When Turner replied, Yes, Baker continued, Go to NA, learn those Twelve Steps, work those Twelve Steps. And this Board will not accept any excuses. Can I make it any simpler than that. ... [I]f you dont go to NA, I would never let you out of prison, ever. ... I cant make it any plainer, I really cant. NA is mandatory for you.
Although Turner, a Christian, had attended NA sporadically since his first parole denial, he was uncomfortable with the religious aspects of NA that required assertion of belief in a higher power and saying the Lords Prayer among a group consisting of others (including atheists) who falsely so swore to get BPT credit for attendance. He sued under 42 U.S.C. § 1983 claiming the Boards actions amounted to establishment of religion prohibited by the First Amendment.
The court relied upon Lee v. Weisman, 505 U.S. 577 (1992) for the proposition that government may not coerce anyone ... to participate in religion or its exercise .... Applying this coercion test, the court followed the three-part test of Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996). First, as to the requirement of state action, the court found it clear that the BPT told Turner he had to participate in NA to parole. Second, he was told if he didnt participate, he would never parole. Third, the coercion was religious, because the NA reference to `God necessarily implied a spiritual system of faith and worship. The Boards argument that `God could refer to, say, just a doorknob, fell flat under the facts of the case. Accordingly, the court followed the Second Circuit (Warner v. Orange County Dept Of Probation, 115 F. 3 d 1068 (1997)) and the Seventh Circuit (Kerr, supra) to hold that requiring participation in NA is an establishment of religion prohibited by the First Amendment.
The court rejected the Boards counter-argument that a recent establishment of secular alternatives to NA mooted Turners complaint. Mere voluntary cessation of illegal conduct does not moot a case; if it did, courts would be compelled to leave defendants free to return to their old ways. Moreover, the existence of secular alternatives would not stop defendants from ... considering plaintiffs past failure to complete NA at future parole hearings.
Thereupon, the court ordered adoption of the Magistrates Findings and Recommendations in full, specifying that BPT Chair[person) Perez, their superiors, agents, co-employees and successors to state office be enjoined from considering plaintiffs refusal to participate in NA at any point in time as a basis for denying plaintiff parole. The court further enjoined Youth and Adult Correctional Agency Secretary Roderick Q. Hickman and his successors, ... to expunge all references to plaintiffs failure to attend NA from any file maintained by the California Department of Corrections (CDC). Lastly, the court permitted plaintiffs counsel, Harry Arthur Oliver of Los Angeles, to apply for award of attorney fees and costs per 42 U.S.C. § 1988. See: Turner v. Hickman, 342 F.Supp.2d 887 (E.D. Cal. 2004).
Note: Any California lifer whose file contains unwanted references to BPT requirements to attend AA or NA should write the BPT and CDC to request expungement of their files prior to their next hearing. Of course, dealing with substance abuse remains a valid concern for parole, and those affected should seek secular treatment/counseling if they object to AA or NA.
Consideration Violates Establishment Clause
by John E. Dannenberg
The United States District Court, E.D. Cal., ruled that requiring a California life prisoner to attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) as a predicate for parole constituted a state establishment of religion prohibited by the First Amendment. Furthermore, the court enjoined the Board of Prison Terms (BPT) from ever imposing such a requirement in the future, and ordered all records of past references to the prisoners failure to attend NA expunged from his prison records.
Charles Turner, serving a 15-life sentence for second degree murder since 1979, had been denied parole by the BPT eight times. Each time he was admonished to attend NA or AA prior to his next hearing. In 1997, BPT Commissioner Steven Baker (a former San Diego Police Detective, whose small son was murdered) drove his mandate home: Let me explain it to you so its real simple. Do you want to get out of prison?. When Turner replied, Yes, Baker continued, Go to NA, learn those Twelve Steps, work those Twelve Steps. And this Board will not accept any excuses. Can I make it any simpler than that. ... [I]f you dont go to NA, I would never let you out of prison, ever. ... I cant make it any plainer, I really cant. NA is mandatory for you.
Although Turner, a Christian, had attended NA sporadically since his first parole denial, he was uncomfortable with the religious aspects of NA that required assertion of belief in a higher power and saying the Lords Prayer among a group consisting of others (including atheists) who falsely so swore to get BPT credit for attendance. He sued under 42 U.S.C. § 1983 claiming the Boards actions amounted to establishment of religion prohibited by the First Amendment.
The court relied upon Lee v. Weisman, 505 U.S. 577 (1992) for the proposition that government may not coerce anyone ... to participate in religion or its exercise .... Applying this coercion test, the court followed the three-part test of Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996). First, as to the requirement of state action, the court found it clear that the BPT told Turner he had to participate in NA to parole. Second, he was told if he didnt participate, he would never parole. Third, the coercion was religious, because the NA reference to `God necessarily implied a spiritual system of faith and worship. The Boards argument that `God could refer to, say, just a doorknob, fell flat under the facts of the case. Accordingly, the court followed the Second Circuit (Warner v. Orange County Dept Of Probation, 115 F. 3 d 1068 (1997)) and the Seventh Circuit (Kerr, supra) to hold that requiring participation in NA is an establishment of religion prohibited by the First Amendment.
The court rejected the Boards counter-argument that a recent establishment of secular alternatives to NA mooted Turners complaint. Mere voluntary cessation of illegal conduct does not moot a case; if it did, courts would be compelled to leave defendants free to return to their old ways. Moreover, the existence of secular alternatives would not stop defendants from ... considering plaintiffs past failure to complete NA at future parole hearings.
Thereupon, the court ordered adoption of the Magistrates Findings and Recommendations in full, specifying that BPT Chair[person) Perez, their superiors, agents, co-employees and successors to state office be enjoined from considering plaintiffs refusal to participate in NA at any point in time as a basis for denying plaintiff parole. The court further enjoined Youth and Adult Correctional Agency Secretary Roderick Q. Hickman and his successors, ... to expunge all references to plaintiffs failure to attend NA from any file maintained by the California Department of Corrections (CDC). Lastly, the court permitted plaintiffs counsel, Harry Arthur Oliver of Los Angeles, to apply for award of attorney fees and costs per 42 U.S.C. § 1988. See: Turner v. Hickman, 342 F.Supp.2d 887 (E.D. Cal. 2004).
Note: Any California lifer whose file contains unwanted references to BPT requirements to attend AA or NA should write the BPT and CDC to request expungement of their files prior to their next hearing. Of course, dealing with substance abuse remains a valid concern for parole, and those affected should seek secular treatment/counseling if they object to AA or NA.
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Related legal case
Turner v. Hickman
| Year | 2004 |
|---|---|
| Cite | 342 F.Supp.2d 887 (E.D. Cal. 2004) |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | Granted |
CHARLES EDWARD TURNER, Plaintiff, vs. R. HICKMAN, et al., Defendants.
No. CIV S-99-1869 FCD KJM P
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
342 F. Supp. 2d 887; 2004 U.S. Dist.
September 29, 2004, Decided
September 30, 2004, Filed
PRIOR HISTORY: Turner v. Hickman, 2004 U.S. Dist. (E.D. Cal., Aug. 3, 2004)
DISPOSITION: Magistrate's recommendation adopted. Plaintiff's motion for summary judgment was granted.
COUNSEL: [**1] For CHARLES EDWARD TURNER, plaintiff: Harry Arthur Olivar, Quinn Emanuel Urquhart Oliver and Hedges, Los Angeles, CA.
For ARTHUR -- VAN COURT, defendant: Michael G Lee, Attorney General's Office for the State of California, Sacramento, CA; Constance L Picciano, Attorney General's Office for the State of California, Sacramento, CA.
For M GUADERRAMA, defendant: Michael G Lee, Attorney General's Office for the State of California, Sacramento, CA; Constance L Picciano, Attorney General's Office for the State of California, Sacramento, CA.
For STEVEN BAKER, defendant: Michael G Lee, Attorney General's Office for the State of California, Sacramento, CA; Constance L Picciano, Attorney General's Office for the State of California, Sacramento, CA.
OPINION:
[*889] ORDER
Plaintiff, a state prisoner proceeding with counsel, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On August 4, 2004, the magistrate judge filed findings and recommendations herein, which were served on all parties [**2] and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Defendants have filed objections to the findings and recommendations. n1
n1 With their objections, defendants submit the declaration of Marvin E. Speed II. While a district court judge may receive additional evidence under 28 U.S.C. § 636(b)(1)(C)'when determining whether to accept or reject a magistrate judge's findings and recommendations, the court exercises its discretion and declines to consider the Speed declaration as counsel for defendants has not provided any reason why the declaration was not submitted during the approximately five month period defendants' and plaintiff's motions for summary judgment were pending before the magistrate judge issued her findings and recommendations. U.S. v. Howell, 231 F.3d 615, 622-23 (9th Cir. 2000), cert, denied, 534 U.S. 831, 151 L. Ed. 2d 40, 122 S. Ct. 76 (2001) (district court judge has discretion to reject evidence submitted after findings and recommendations have issued).
[**3]
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 4, 2004 are adopted in full;
2. Plaintiffs March 5, 2004 motion for summary judgment is granted;
3. Defendants Perez, Van Court, Baker, Guaderrama, their superiors, agents, co-employees and successors to state office are enjoined from considering plaintiff's refusal to participate in Narcotics Anonymous at any point in time as a basis for denying plaintiff parole;
4. Defendant Hickman, and his successors, are ordered to expunge all references to plaintiff's failure to attend Narcotics Anonymous from any file maintained by the California Department of Corrections; and
5. This case is closed. n2
n2 In her findings and recommendations, the magistrate judge recommended that plaintiff's counsel be awarded attorneys fees and costs under 42 U.S.C. § 1988. If plaintiff seeks fees and / or costs under § 1988, or any other applicable statute or rule, plaintiff shall file a motion in accordance with the applicable rules.
[**4]
DATED: September 29, 2004
UNITED STATES DISTRICT JUDGE
No. CIV S-99-1869 FCD KJM P
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
342 F. Supp. 2d 887; 2004 U.S. Dist.
September 29, 2004, Decided
September 30, 2004, Filed
PRIOR HISTORY: Turner v. Hickman, 2004 U.S. Dist. (E.D. Cal., Aug. 3, 2004)
DISPOSITION: Magistrate's recommendation adopted. Plaintiff's motion for summary judgment was granted.
COUNSEL: [**1] For CHARLES EDWARD TURNER, plaintiff: Harry Arthur Olivar, Quinn Emanuel Urquhart Oliver and Hedges, Los Angeles, CA.
For ARTHUR -- VAN COURT, defendant: Michael G Lee, Attorney General's Office for the State of California, Sacramento, CA; Constance L Picciano, Attorney General's Office for the State of California, Sacramento, CA.
For M GUADERRAMA, defendant: Michael G Lee, Attorney General's Office for the State of California, Sacramento, CA; Constance L Picciano, Attorney General's Office for the State of California, Sacramento, CA.
For STEVEN BAKER, defendant: Michael G Lee, Attorney General's Office for the State of California, Sacramento, CA; Constance L Picciano, Attorney General's Office for the State of California, Sacramento, CA.
OPINION:
[*889] ORDER
Plaintiff, a state prisoner proceeding with counsel, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On August 4, 2004, the magistrate judge filed findings and recommendations herein, which were served on all parties [**2] and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Defendants have filed objections to the findings and recommendations. n1
n1 With their objections, defendants submit the declaration of Marvin E. Speed II. While a district court judge may receive additional evidence under 28 U.S.C. § 636(b)(1)(C)'when determining whether to accept or reject a magistrate judge's findings and recommendations, the court exercises its discretion and declines to consider the Speed declaration as counsel for defendants has not provided any reason why the declaration was not submitted during the approximately five month period defendants' and plaintiff's motions for summary judgment were pending before the magistrate judge issued her findings and recommendations. U.S. v. Howell, 231 F.3d 615, 622-23 (9th Cir. 2000), cert, denied, 534 U.S. 831, 151 L. Ed. 2d 40, 122 S. Ct. 76 (2001) (district court judge has discretion to reject evidence submitted after findings and recommendations have issued).
[**3]
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 4, 2004 are adopted in full;
2. Plaintiffs March 5, 2004 motion for summary judgment is granted;
3. Defendants Perez, Van Court, Baker, Guaderrama, their superiors, agents, co-employees and successors to state office are enjoined from considering plaintiff's refusal to participate in Narcotics Anonymous at any point in time as a basis for denying plaintiff parole;
4. Defendant Hickman, and his successors, are ordered to expunge all references to plaintiff's failure to attend Narcotics Anonymous from any file maintained by the California Department of Corrections; and
5. This case is closed. n2
n2 In her findings and recommendations, the magistrate judge recommended that plaintiff's counsel be awarded attorneys fees and costs under 42 U.S.C. § 1988. If plaintiff seeks fees and / or costs under § 1988, or any other applicable statute or rule, plaintiff shall file a motion in accordance with the applicable rules.
[**4]
DATED: September 29, 2004
UNITED STATES DISTRICT JUDGE