Opposition Brief — Orange County Department of Probation v. Warner

No. 99-24

IN THI

Supreme Court of the United States

October Term, 1999

ORANGE COUNTY DEPARTMENT OF PROBATION,

Petitioner

ROBERT WARNER,

Re spondent

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUTT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ROBERT N.ISSEKS

Attorney for Respondent

and Counsel of Record

6 North Street

Middletown, NY 10940

Of Counsel (914) 344-4322

ALEX SMITH

41 Dolson Avenue

P.O. Box 578%

Middletown, New York 10940

(914) 343-210]

Pit REPORTER COMPANY, Printers and Publishers, Ine

1%! Delaware Street, Walton, NY | 4%56—00 252-71%1!

(1911 — 1999)

Printed on Recycled Paper

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QUESTIONS PRESENTED

|. Do the Twelve Steps of Alcoholics Anonymous constitute rel igious

doctrine and practice within the meaning of the Establishment Clause

of the First Amendment?

2. Does government coerced attendance at Alcoholics Anonymous

meetings violate the Establishment Clause of the First Amendment?

3. Was it reasonably foreseeable that the sentencing judge would adopt

Orange County Probation Department's recommendation that Warner

be required to attend Alcoholics Anonymous meetings?

TABLE OF CONTENTS

Cucstions FYOOCMNRG .oos6 isc dedanctes ae dearer eeeeeeaes

Table of Contents t0 ADPOndIX 2... cccccvsccevececceccces iil

TORO OF AWEROTIRIOS « s occacc ce eu ene eee eee iV

summary Of the ATSIONE . 02.6500 cs sabe eee easekebbeetos

8. eee ee rere eee re 2

Reasons For Denying The Writ

I. It Is Well Settled That the Twelve Steps of Alcoholics

Anonymous Constitute Religious Doctrine and Practice Within

The Meaning of the Establishment Clause of the First

AMONG 0000 creeseteeneee6eklseEeNeeeaeeeNees 5

Il. It Ils Well Settled That Government Coerced Attendance at

Alcoholics Anonymous Meetings Violates the Establishment

Clause of the First Amendment..............eeceeee- 13

Ill. The Department of Probation Is Constitutionally

Responsible for its Policy of Requiring Probationers to

Work Through the Twelve Steps of A.A. .............4. 21

CORCHIGION . oc kc ccvisesesoadneteoe nee 30

;

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;

iil

TABLE OF CONTENTS TO APPENDIX

Appendix A.

"Twelve Steps of Alcoholics Anonymous"

Appendix B.

Excerpts from "Twelve Steps and Twelve Traditions” .....

Appendix C.

Page 45 froin Chapter Four of the "Big Book" entitled "We

Agnostics"

. da

iV

TABLE OF AUTHORITIES

Cases: Page

97 Columbia Law Review, 437, 448 (March, 1997) .......... 10

Abington School Dist. V Schempp, 83 S.Ct. 1560, 1571-72 ... 7,8

Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985) ... 23.27

Arnold v Tennessee Board of Parole, 956 §.W.2d 478

Ph SY cred ed ced budeae ecw doeecesl ee 8, 13

Board of Educ. v Barnette, 319 U.S. 624, 640-642 ........... 19

Board of Education v Grumet, 114 S.Ct. at2497 ............ 20

Chabad-Lubavitch of Georgia v Miller, 976 F.2d 1386,

See ae TD bk oad eceaeescd casa daueateu 16

REBT dwtcsiace¥ecveaksisékusvess dius tein 7

County of Allegheny v American Civil Liberties Union,

Gs Gs BU, SO TEIN 600s cinveuceéviss 11, 13, 16

Engel v Vitale, 370 U.S. 421 (1962) .............. 6, 12, 20, 30

Gillette v United States, 401 U.S. 437, 452 (1971) ............ 7

Grand Rapids School Dist. v Ball, 473 US 373, 382 ........... 8

Griffin v. Coughlin, 88 N.Y .2d 674 (1996), cert den 519

Aah PPPOE cctGheevavebedecubaceceluanekes passim

Page

Jones v Clear Creek Independent School Dist., 977 F.2d

SOP Dae Gre es Sh oc wr baGe veues ei ences dae 16

JORGE Ue, COGS VE ov ictde cee detuctccacivawbas 9

Kerr v Farrey, 95 F.3d 472, 497-480 (7th Cir. 1996) ....... 8, 13

Lamb's Chapel v Center Moriches Union Free School

District, 124 L.Ed.2d 352, 363 n 7 (1993) ......... eee ee 17

Lee v. Weisman, 120 L.Ed.2d 467, 482-83 (1992)........ passim

Lemon v Kurtzman, 403 U.S. 602 (1971) ..........45.. passim

Malley v. Briggs, 475 U.S. 335, 334n. 7 (1986) .......... 1,2!

Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77

Le SE CSP CODES 6 CR KEUU HOVER CC RSE eRe eh ehdene 16, 20

O'Connor v Staie of Cal., 855 F.Supp. 303, 307-308

GRR. SOD vi neewsicsdepucawerececees teeters 8, 10

O'Lone v Estate of Shabazz, 482 U.S. 342 2.0... 0... cc cece. 12

Otero v State Election Bd. Of Oklahoma, 975 F.2d 738,

PEPER GE, FUSED ces ccctvddvesvbivesien eerie 16

Owen v. City of Independence, 445 U.S. 622 (1980).......... 26

PUR UTVOM, GEE Bae. 666i sic bWdceieaieti sine: 12

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 112 S.Ct. 2791, 2807 (1992) ......... 19

vi

Robinson v City of Edmond, 68 F.34 1226 (10th Cir.

RP ee ee re CO PEE ee 1]

Scarpino v Grosshiem, 852 F.Supp. 798, 804

CR TED |. once nes Lawes 2 bh eee oes 10

Singleton v. Wulff, 428 U.S. 106, 120 (1976) ............... 25

Stafford v Harrison, 766 F.Supp. 1014 (D.Kan. 1991) ...... 9 10

yomer y Bate Gee aime, We. ods nc ceded eusn nena 12

Warburton v. Underwood, 2 F.Supp.2d 306

(W.D.N-Y. 1998) Sade wae ae a avin iors _ 10

Ward v Walsh. | F.3d 873. 876 (9th Cir. 1993) cert den

114S8.Ct. 1297 — oe ne era er 19

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Summary of the Argument

Respondent Robert Warner ("Warner") brought this suit under 42

U.S.C. 1983 to obtain declaratory and compensatory relief on his claim

that petitioner Orange County Department of Probation ("Probation

Department") coerced him into attending Alcoholics Anonymous

("A.A.") meetings in violation of the Establishment Clause of the First

Amendment to the United States Constitution. By Opinion dated

December 19, 1994, the District Court for the Southern District of

New York (Hon. Gerard L. Goettel) found that the idea of requiring

Warner to attend A.A. originated with the Probation Department, that

"the A.A. program that Warner experienced placed a heavy emphasis

on spirituality and prayer, in both conception and practice," (91a) that

Warner was “unquestionably coerced" (93a) to attend A.A. meetings

that were "the functional equivalent of religious exercise" (93a) and

that such coercion "tends to establish a state religious faith" in violation

of the Establishment Clause. (94a)

The Court of Appeals below agreed with the District Court, stating

that "{t}he A.A program to which Warner was exposed had a

substantial religious component" and that it had "no doubt that the

{A.A.] meetings Warner attended were intensely religious events." The

Court of Appeals also had "no doubt . . . that Warner was coerced into

participating in these religious exercises by virtue of his probation

sentence," since if he failed to attend A.A., he "would have been

subject to imprisonment for violation of probation." (36a-37a)

The Court of Appeals upheld the District Court's finding that the

Probation Department's "recommendation that Warner be required to

participate in A.A. therapy was unquestionably made pursuant to a

general policy,"(27a-28a) and found citing Malley v. Briggs, 475 U.S.

335, 334n. 7 (1986) that the A.A. conditions in Warner's sentence was

a "natural consequence" of that general policy.

2

Statement of Facts

!. The Policy of the Probation Department

On November 13, 1990, before the Justice Court of the Town of

Woodbury, County of Orange, State of New York, Warner pled guilty

to the charges of aggravated unlicensed operation of a motor vehicle

in the second degree [N. Y.S. Veh. Traf. Law Sec. 51 1(2)] and driving

while ability impaired [N.Y.S. Veh. Traf. Law, Sec. 1192(1)]. The

Justice Court thereupon ordered the Probation Department to prepare

Warner's pre-sentence investigation report. When the Probation

Department presented its report to the Justice Court, it included a pre-

printed form, drafted by the Probation Department, entitled "Standard

Conditrons of Probation" This form was used by the Probation

Department county-wide and was included in every pre-sentence

investigation report where the defendant to be sentenced might receive

a period of probation.

Attached to the "Standard Conditions" form in Warner's

pre-sentence report was another pre-printed form, also drafted by the

Probation Department, entitled "Additional Conditions of Probation

Pertaining to Aicohol." This form stated in pertinent part: "Your

Wamer’s Exhibit "2" provides in pertinent part the following

In accordance with Section 65 of the Penal Law, you have been sentenced by the

Court to a (3) three-year period of Probation. While on Probation, you are in the

legal custody of the COURT. If your community adjustment is favorable, you can

be discharged from probation before the maximum expiration date, if so ordered by

the COURT.

While on probation, you shall faithfully observe the conditions of your probation.

You realize that a violation of these conditions or any others imposed by the COURT

may result in yourbeing returned to the COURT for further action, which may result

in your possible confinement

Your conditions of probation are

* * *

Other special conditions:

Special Alcohol Conditions (as per attached)

* * *

hte sae Bib bib

3

probation is subject to the following additional conditions * * * That

you will attend Alcoholics Anonymous at the direction of your

probation officer." This directive was included in the Probation

Department's pre-sentence report whenever it may be relevant to the

prospective probationer.

The Probation Department did not consult with the sentencing

judges in Orange County when it introduced its "Additional Conditions

of Probation Pertaining to Alcohol". But when the Probation

Department drafted this form, it was aware of the fact that Alcoholics

Anonymous utilized the "Twelve Steps of Alcoholics Anonymous"

(See Appendix A. at pps. la - 2a).

Prior to and throughout the time that Warner was on probation, it

had been the Probation Department's policy to use the Twelve Steps to

monitor probationers who were subject to the additional alcohol

conditions as to whether they were gaining any insight in terms of

themselves and their use of alcohol.

From as early as December 13, 1990, Warner's probation officer,

Neal Terwilliger, directed Warner to attend three A. A. meetings per

week. Throughout the period that Terwilliger was Warner's probation

officer he required Warner to turn in an "A.A. Monitoring Sheet", the

purpose of which was to verify that Warner, as with all probationer's

similarly situated, was, in fact, attending A. A. meetings as directed.

Warner's uncontroverted testimony at trial was that the vast

majority of the A.A. meetings that he attended involved discussions

about God, how hopeless an alcoholic was until he or she accepted

God into his or her life, and how to start praying. On January and

February 1991, Warner told Terwilliger that the A. A. meetings were

4

too religious-based for him, but Terwilliger persisted to direct Warner

to attend the meetings.*

On August 4, 1992, before the Town of Woodbury Justice Court,

Warner moved pursuant to N.Y.S. Criminal Procedure Law Section

440.20 to challenge the constitutionality of that part of his sentence

which imposed, as an express condition of his probation, the

requirement that he attend A. A. at the direction of his probation

officer. The Justice Court never ruled on the constitutional issue and,

instead, ruled that the motion was moot because the Probation

Department presented Warmer with suitable alternatives to A.A.

Il. The Religious Nature of the Twelve Step Program

The religiously indoctrinating nature of the Twelve Step program is

explained in the two basic A. A. publications, Twelve Steps and

Twelve Traditions, and Alcoholics Anonymous, commonly referred to

as the "Big Book". Both of these books were received in evidence at

trial.

Twelve Steps and Twelve Traditions ("TSTT") "presents an explicit

view of the principles by which A.A. members recover and by which

their Society functions." (Preface TSTT 15) "It is hoped," write the

authors, "that this volume will afford all who read it a close-up view

of the principles and forces which have made Alcoholics Anonymous

‘ During the spring and summer of 1991, Terwilliger perceived Warmer as "13

stepping", which meant that Wamer was critical of the program and didn't see any

sense in it. Thus, one of Terwilliger’s "behavioral objectives" for Warner for the

quarter following August 13, 1991, was that Warmer attended A.A. "Step meetings"

and, on October 16, 1991, Terwilliger so directed Warmer. Step meetings were

distinct from the other kinds of A.A. meetings in that at a Step meeting the group

discussion would be confined to one particular Step of the Twelve Steps. One of

Terwilliger’s behavioral objectives at the end of the period from November 14, 1991,

to February 13, 1992, was for Wamer to "attend three A.A. step meetings every

week, and obtain a sponsor". Terwilliger viewed Wamer’s attendance at three Step

meetings per week as an objective which was part of Warner's "working the Steps"

of the program.

what it is." (Preface TSTT 18) The book elaborates, chapter by

chapter, upon each of the Twelve Steps. (See Appendix B. at pps. 3a - 8a).

The District Court fourid that Alcoholics Anonymous (the "Big

Book") is "A.A.'s basic text" and that "the central theme" of the book

is the "emphasis on a higher power". As "an all-purpose guide for

anyone having problems working the Twelve Steps", the Big Book's

main object is 'to enable [the reader] to find a Power greater than

[himself] which will solve [his] problem," and that it is "spiritual as

well as moral." (See Appendix C. at p. 9a).

A preliminary step in the A.A. program requires the participant to

admit the existence "of a Creative Intelligence, a Spirit of the Universe

underlying the totality of things. . ." (Big Book, page 46). Once this

"power and direction." The program provides that "[a]t the start, this

was all [the participant] needed to commence spiritual growth, to effect

[his] first conscious relation with God as [he] understood Him." (Big

Book, page 47) As soon as the participant can say that "he does

believe, or is willing to believe, . . .[the program] emphatically assures

him that he is on his way" and that a "wonderfully effective spiritual

structure can be built." (Big Book, page 47)

Reasons For Denying The Writ

I. It ls Well Settled That the Twelve Steps of Alcoholics Anonymous

Constitute Religious Doctrine and Practice Within the Meaning of

the Establishment Clause of the First Amendment

The Orange County Probation Department contends that certiorari

should be granted so that this Court can determine whether A.A. is

"sufficiently religious" for Establishment Clause purposes. The

Probation Department misleads this Court by stating that this issue has

resulted in a "split of opinions around the country". The Probation

) Department then contends that this "split" has been caused by some

courts using the three-pronged Lemon test and others using the Lee v.

6

Weisman coercion test. The Probation Department then asks this

Court to end this "confusion",

Actually, the only entity "confused" by this issue is the Probation

Department. Its confusion begins with its apparent belief that whether

a court applies Lemon or Lee will make a difference on the threshold

issue of whether the Twelve Steps constitute religious practice. The

Probation Department's confusion continues with its disingenuous

attempt to convince this Court that two discredited district court

opinions have caused a "split of opinions around the country".

In Griffin v. Coughlin, 88 N.Y.2d 674 (1996), cert den 519 U.S.

1054 (1997), the New York Court of Appeals observed that the A.A.

literature "demonstrates beyond peradventure that doctrinally and as

actually practiced in the 12-step methodology, adherence to the A.A.

fellowship entails engagement in religious activity and religious

proselytization." The N.Y. Court of Appeals explained that followers

of the Twelve Steps

are urged to accept the existence of God as a Supreme Being,

Creator, Father of Light and Spirit of the Universe. In "working"

the 12 steps, participants become actively involved in seeking such

a God through prayer, confessing wrongs and asking for removal of

shortcomings. These expressions and practices constitute, as a

matter of law, religious exercise for Establishment Clause purposes,

no less than the nondenominational prayer in Engel v Vitale (370

US 421), that is, "a solemn avowal of divine faith and a

supplication for the blessings of the Almighty. The nature of such

a prayer has always been religious” (id., at 424 {emphasis

supplied]; see also, Lee v Weisman, 505 US __, _,112 SCt 2649,

2664 [Blackmun, J., concurring]).

Griffin, 88 N.Y.2d at 683 (emphasis in original). The Griffin Court

further observed:

[A] fair reading of the fundamental A.A. doctrinal writings discloses

that their dominant theme is religious . . . Indeed, the A.A. basic

J

literature most reasonably would be characterized as reflecting the

traditional elements common to most theistic religions. Thus, God

is named or referred to in five of the 12 steps . . . While A.A.

literature declares an openness and tolerance for each participant's

personal vision of God ("as we understood Him" [Steps 3 and 11]

[emphasis in the original]), the writings demonstrably express an

aspiration that each member of the movement will ultimately

commit to a belief in the existence of a Supreme Being of

independently higher reality than humankind ... Aside from the

obvious difficulty in conceptualizing how one could perform a

confessional of "wrongs" (Step 5) or seek, through "prayer,"

"contact" (Step 11) with a God devoid of religious content," and

even if "A.A. permits a secular interpretation of its doctrines and

practices, undeniably its paramount theme . . . favors a religious

interpretation.

Griffin, 88 NY2d at 681-682, 689. These findings led the Court of

Appeals to reject the New York Attorney General's position that "the

Establishment Clause was not violated because other A.A. writings

Suggest a toleration of belief in a "God" as merely some "Higher

Power" without any religious content". Griffin, 88 NY2d at 688. The

Court concluded that the Attorney General's "defense fails under the

‘wholesome neutrality' requirement of the Establishment Clause."

Griffin, 88 N.Y.2d at 689, citing Abington School Dist. v Schempp,

83 S.Ct. 1560, 1571-72 (emphasis supplied in Griffin).

Even if this Court were to go so far as to accept the Probation

Department's suggestion that words like "God" and "prayer" and

"Him" and "Higher Power" and "spirituality" can be given a neutral or

secular "spin" (which, of course, they really can't), the Establishment

Clause would still be violated. This is because the First Amendment

"forbids" even "subtle departures from neutrality". Gillette v United

States, 401 U.S. 437, 452 (1971)... quoted in Church of Lukumi

Babalu Aye v Hialeah, 113 S.Ct. 2217, 2227 (1993). The religious

indoctrination inherent in a departmental policy of recommending,

endorsing and using the Twelve Steps is not erased, or even minimized,

simply by labeling it "spiritual" or "therapeutic".

The Probation Department's heavy reliance upon A.A.'s conclusory,

self-serving disclaimer that the Twelve Step process is not "religious,"

not only has been rejected by the New York Court of Appeals,’ it is

Presently being uniformly rejected in the federal courts,

In Kerr y Farrey, 95 F.3d 472, 497-480 (7th Cir. 1996) the

Seventh Circuit Court of Appeals rejected the argument that the

"program escaped the 'religious' labe| because the twelve Steps used

phrases like 'God, as we understood Him,' and because the warden

indicated that the concept of God could include the non-religious idea

of willpower within the individual." The Seventh Circuit reasoned that

because "[a] Straightforward reading of the twelve Steps shows Clearly

that the steps are based on the monotheistic idea of a single God or

Supreme Being."’ Jd. See, also, O'Connor y State of Cal., 855

F.Supp. 303, 307-308 (C.D.Cal. 1994) which, prior to Kerr, drew the

same conclusion that A.A.. for Purposes of First Amendment analysis,

iS not only religious, but specifically "monotheistic" in its basic

principles:

The Probation Department also Suggests that because A.A. Purportedly does

not embrace one particular religion it does not violate the First Amendment. But

even assuming that the A.A. requirement does include the Principle of

non-affiliation, this stil} would not remove it from the Scope of the Establishment

Clause. In Abington y Schempp, 374 U.S. at 216, the Supreme Court observed how

it "has rejected unequivocally the contention that the Establishment Clause forbids

only governmental preference of one religion over another." Abington, 374 U.S. at

216. See, also, ¢ srand Rapids School Dist. v Ball, 473 US 373, 382, where this

Court observed that the government must “maintain a course of neutrality among

religions, and between religion and nonreligion. . . "

: See, Arnold y Tennessee Board of Parole, 956 S.W.2d 478 (Tenn. 1997)

(Supreme Court of Tennessee held that a prisoner's failure to attend A.A. meetings

The Seventh Circuit went on to point out that the Phrase "God, as we

understood Him," Stressed by the Probation Department to show the so-called

flexibility of the "God" concept, really works against the State, since the phrase

refers to God as "Him" Kerr, 95 F.3d at 480. The Seventh Circuit determined that

the Twelve Steps are “fundamentally based on a religious concept of a Higher

Power." Kerr, 95 F.3d at 480,

9

Spirituality is_a central part of the Alcoholics Anonymous

philosophy, and the program contains religious overtones. While

A.A. is nota "religion" -- various faiths may all participate without

renouncing their religious convictions -- a review of the "Big Book

of Alcoholics Anonymous" reveals that it is founded on

monotheistic principles.

The Second Circuit below stated that it had "little difficulty

concluding that the constitutional line was crossed" by the

government's endorsement of, and requirement of participation in, the

Twelve Step program. Addressing the disclaimer argument now being

propounded to this Court by the Probation Department, and

specifically that argument's reliance upon Stafford v Harrison, 766

F.Supp. 1014 (D.Kan. 1991),° the Second Circuit observed that

Stafford involved a mandatory prison-based substance abuse

program, structured around the principles of A.A. The court upheld

the program, arguing that A.A.'s notions of a "higher power" and

"God" were sufficiently flexible and non-denominational that the

program could not be said to constitute a "religion." This is a

misapplication of First Amendment doctrine, which prohibits

coerced participation in religious exercise of any variety for its

favoritism of religion over non-religion. We decline to follow that

case, which has been criticized for misreading relevant Supreme

Court precedent.’

° The Stafford court, pointing to the disclaimer in the "Big Book", held that

"[wJhile the spiritual nature of Alcoholics Anonymous cannot be denied, the court

is not persuaded this program is a religion." 766 F.Supp. at 1016. The holding in

Jones v Smid, (4-89-CV-20857), the unpublished 1993 Southem District of lowa

decision also cited in the instant petition, expressly adopted the reasoning in

Stafford.

” In the District Court decision below, the reasoning in Stafford was found faulty

and rejected as follows:

The case upon which Defendant relies for the proposition that A.A. is not a

religious organization, Stafford v Harrison, 766 F.Supp. 1014 (D.Kan. 1991),

draws its legal justification from a misapplication of Justice Douglas’ concurring

opinion in U.S. v. Seeger, 380 U.S. 163 (1965). Stafford finds that "the belief

10

Stafford was also rejected in Scarpino v Grosshiem, 852 F.Supp. 798,

804 (S.D.lowa 1994) which described the reliance upon A.A.'s

disclaimer as 'dubious."”

After the hearing on remand in June of 1997, the District Court

below made the further finding that "[t}he A.A. program for combating

addictive alcoholism is deeply religious." (15a)

In Warburton v. Underwood, 2 F.Supp.2d 306 (W.D.N.Y. 1998),

a district court rejected a qualified immunity defense by finding that

the plaintiff had a clearly established right in 1998 not to be coerced

into a Twelve Step program by New York State.

As observed by one commentator, "judicial consensus is emerging

behind the proposition that AA is a religious program for

Establishment Clause purposes. Therefore, courts facing cases that

involve the issue of AA's religiousness should devote little, if any,

analysis to this question." 97 Columbia Law Review, 437, 448

(March, 1997) The Twelve Step modality of indoctrination does not

lose its religiosity simply because the County might be of the view that

A.A. is effective or that some people might need it to keep them sober.

in a Supreme Being ‘cannot be sustained as a distinguishing characteristic of

religion."' The passage from Seeger cited by the Stafford court stands not for the

proposition that reference to a Supreme Being does not make something a

‘religion’, but for the proposition that belief in a Supreme Being is not a

prerequisite for a religion. In fact, Douglas specifically notes Hinduism and

Buddhism as religions which do not include a concept of a Supreme Being. As

a result, we base our analysis upon decisions of the Supreme Court rather than

upon Stafford. (109a)

* Also refusing to follow Stafford and adopt the sort of selective and misleading

references to the A.A. literature that can be found in the instant petition, the District

Court in O'Connor took the following quote as revealing: )

This is the how and why of it. First of all, we had to quit playing God. {t didn't

work. Next, we decided that hereafter in this drama of life, God was going to be

our Director. He is the Principal; we are His agents. He is the Father, and we

are His children. Most good ideas are simple, and his concept was the keystone

of the new and triumphant arch through which we passed to freedom . . .

O'Connor, 855 F.Supp. at 307, n. 6.

The fact remains that the Twelve Steps of A.A. is a program of

indoctrination which methodically induces its participants to

understand their problems in theistic terms, to pray to "God" and to

surrender their wills over to that "God".

The primary problem with the Probation Department's argument is

that it would guarantee the government's ability to circumvent the

Establishment Clause in every challenge to state-endorsed religious

indoctrination. If states and municipalities were permitted to use

traditionally religious terms simply on their claim that such terms are

not to be taken literally, but as mere metaphorical tokens, then

accountability under the First Amendment would become impossible.

See, e.g., Robinson v City of Edmond, 68 F.3d 1226 (10th Cir. 1995),

which, rejecting a request to go behind the objective? significance of a

traditionally religious symbol, observed that an argument which would

discard the objective standard "could always ‘trump' the Establishment

Clause." /d.

The Probation Department's argument, with its proffered

interpretation of "God" and "prayer" as state-of-the-art terms within

the treatment industry, similarly asks that the objective standard be

discarded and that plainly religious language not be taken at face

value. At the very least, however, the First Amendment must forbid

government from using language conventionally understood as

religious as a tool for social engineering. Otherwise, any governmental

entity, such as Orange County's Probation Department, which has a

policy of making sure people are exposed to a religiously proselytizing

program, always would be able to "trump" the Establishment Clause

by simply saying that when it uses the word "God" it doesn't mean

God, and when it urges people to "pray to God" it really is telling them

to do something non-religious.

? Instead, the Tenth Circuit applied the objective standard enunciated in C. ounty

of Allegheny v American Civil Liberties Union (492 U.S. 573) and looked “only to

the average receiver of the government communication or average observer of the

government action." Robinson v City of Edmond, supra.

Se —

oo

Similarly, the Probation Department's Free Exercise balancing

argument fails. If this Court were to approve the Probation

Department's exclusive endorsement of the Twelve Steps on the theory

that working them is good for certain types of people because "God"

has a therapeutic, non-religious significance, the variety of

opportunities to "trump the Establishment Clause" would be virtually

limitless. Nothing then could stop any governmental entity from

requiring the working of the Twelve Steps as a condition of, say, child

visitation, or public or government-regulated employment, or even a

student's right to remain in public school. As the New York Court of

Appeals correctly observed in Griffin, "[a]dopting a balancing

approach here would be unprecedented and raise serious implications

WiO

beyond the prison context.

The Probation Department's effort to psychologize, and thereby

secularize, the Twelve Steps -- by deconstructing the words "God",

"Him", "prayer" and "spiritual awakening" as mere metaphors -- also

has the effect of degrading '' traditional religious beliefs and insulting

those who hold them. This is because the Probation Department is

telling this Court (and the citizens of Orange County, New York) that

the word "God" has no objective referent and that, despite one's

10 Free Exercise cases such as O'Lone v Estate of Shabazz, 482 U.S. 342;

Turner v Safley, 482 U.S. 78; and Pell v Procunier, 417 U.S. 817 involve personal,

rather than public, constitutional rights. In O’Lone, for example, a case involving a

claim under the Free Exercise Clause, this Court held that a balancing is permitted

between an inmate's personal right to engage in his religion's rituals and practices

and the State's penological and administrative interests. Obviously, there are some

religious practices that a prison simply cannot accommodate for reasons of security,

order or economy. However, such balancing between personal freedoms and

penological objectives has absolutely nothing to do with the Establishment Clause.

Under the Establishment Clause, State institutional objectives may never justify

State religious indoctrination.

See, Engel v Vitale (370 U.S. 421), where this Court stated that a "union of

government and religion tends to destroy government and to degrade religion."

13

religious convictions, ''God" and "prayer" are nothing more than useful

. ‘ - , . ‘ )

slogans in carrying out the County's therapeutic objectives. '”

Whether the Court applies Lemon or Lee, the threshold question

remains the same: are the Twelve Steps religious? The answer to this

threshold question, as discussed above, has been obvious to American

appellate courts. What the Probation Department is doing is precisely

what the Establishment Clause was intended to prevent. It is

perverting religious language to serve the purposes of the County.

II. It Is Well Settled That Government Coerced Attendance at

Alcoholics Anonymous Meetings Violates the Establishment Clause

of the First Amendment

Without any precedential authority whatsoever, the Probation

Department requests this Court to (1) ignore every American appellate

court that has confronted this issue'’ and (2) somehow use the Lemon

test -- as opposed to the Lee v Weisman coercion test -- to reason that

Orange County's policy of recommending to sentencing judges that

probationers be required to attend A:A. meetings does not violate the

Establishment Clause.

“Whether the key word is ‘endorsement’, 'favoritism' or ‘promotion’,

the essential principle remains the same. The Establishment Clause at

the very least prohibits government from appearing to take a position

on questions of religious belief . . ."" County of Allegheny v American

Civil Liberties Union, 492 U.S. 573, 593-594 (1989)(emphasis

added).

. Compare, Bertrand Russell, Can Religion Cure Our Troubles?, in The Basic

Writing of Bertrand Russell,Egner & Dennon, Eds., Simon & Schuster, 1961, at

page 600: "I can respect the men who argue that religion is true and therefore ought

to be believed, but I can only feel profound moral reprobation for those who say that

religion ought to be believed because it is useful, and that to ask whether it is true

is a waste of time."

13 . _ . , a

Kerr v Farrey, Griffin v Coughlin, Arnold v Tennessee, Warner v Orange

County

14

Petitioner's policy of recommending to all sentencing courts

throughout the County that anyone with an alcohol problem who is

sentenced to probation should be required to attend A.A. meetings as

a condition of probation, without recommending any secular

alternative, makes it appear, "at the very least," that the State has

“take[n] a position on questions of religious belief." /d. There is no

intellectually honest way to deny this fact. As long as the Probation

Department has the policy of seeing that probationers are required to

attend and listen to the religiously proselytizing language of A.A., the

objective appearance of government-endorsed religiosity is undeniable.

The Griffin Court had no trouble concluding that the use of the A.A.

Twelve Step program by New York's prison system "as an essential

component of an exclusive, compulsory attendance . . . [p]rogram

violates the Establishment Clause."

Petitioner at bar, making virtually the same argument made by the

New York State Attorney General in his petition for certiorari in

Griffin, wants this Court to disregard fundamental Establishment

Clause jurisprudence in order to reinstate the Probation Department's

County-wide program of coerced religious indoctrination. Petitioner

is asking this Court to approve a new civic religion'* of secular

spiritualism which demands recognition and acceptance of a distinction

between religious belief in "God", on the one hand, and secular belief

in a spiritual "Higher Power" expressed in traditional religious terms,

on the other. Petitioner is essentially arguing that so long as the

Probation Department (or its adjunct, such as A.A.) disclaims

affiliation with any religion and insists that the word "God" can mean

anything one wants it to mean, the Probation Department is free to

exhort its probationers -- using traditionally religious language -- to

hand their wills over to a spiritual Higher Power, to acknowledge that

'* See, Lee v Weisman, 120 L.Ed.2d 467, 482-83 (1992) where Justice Kennedy,

writing for the majority, stated that "[t}he suggestion that government may establish

an official or civic religion as a means of avoiding the establishment of a religion

with more specific creeds strikes us as a contradiction that cannot be accepted."

;

15

they are otherwise powerless, and to pray every day for the rest of their

lives.

The compelling nature of this Establishment Clause v iolation, which

distinguishes it from other, less flagrant governmental practices

previously held by this Court to be violative of the separation between

church and state, is underscored by the threat of imprisonment if

Warner failed to "attend Alcoholics Anonymous at the direction of

[his] probation officer." See N.Y. Penal Law Secs. 60.01(4) and

65.00(2); Veh. Traf.Law Secs. 51 1(2)(b) and 1193.'° The pressure put

upon Warner to attend A.A. meetings ts the very sort of direct, overt

compulsion which the drafters of the First Amendment found to be

intolerable. The Courts below quite properly and without difficulty

determined that Warner was coerced to attend A.A. meetings.

Moreover, the Probation Department obfuscates the difference

between the coercion which forced Warner to attend the three A.A.

meetings per week with the amount of damages he may have suffered.

Such an argument has no precedent in Establishment Clause

> ox . . .

he statutory scheme is clear and Straightforward. Section 65.00(2) of the

Penal Law provides that if a plaintiff violates a condition of his probation the Court

may revoke the sentence at any time prior to the expiration or termination of the

period of probation. Section 60.01(4) of the Penal Law provides that if the

probationary sentence is revoked, the court must sentence the plaintiff to a term of

imprisonment or imprisonment combined with probation ("split bid"). See also,

Veh.Traf.Law, Section 51 1(2)(b) (providing a sentence which includes a fine of not

less than five hundred dollars; and either a term of imprisonment not to exceed one

hundred and eighty days, or an additional sentence of probation); see also,

Veh.Traf.Law, Section 1193 (providing a sentence which includes a fine of not less

than two hundred and fifty dollars and not more than three hundred and fifty dollars,

or by imprisonment in a penitentiary or county jail for not more than fifteen days,

or by both such fine and imprisonment).

” No probation violation can occur without the Probation Department's

determination that a violation petition should be filed. It is the fear that a probation

officer will exercise his authority to file such a violation petition that Operates as

coercion to obey each and every directive of a probation officer. Surely the

Probation Department is not Suggesting to this Court that it is the sentencing court

that tells the probation officer when a violation petition should be filed.

16

jurisprudence, and properly so. The fact that Warner was able to

maintain his atheism in the face of religious indoctrination does not

make his state-mandated exposure to such _ indoctrination

constitutional.

In its opinion below, the District Court did not analyze nor rest its

conclusions of law upon the three-pronged test articulated in Lemon v

Kurtzman, 403 U.S. 602 (1971)'’ Instead, Judge Goettel based his

determination upon the holding of Lee v Weisman that government

cannot coerce anyone to participate in religion in a way which

establishes or tends to establish a state religious faith.'” This

formulation of Establishment Clause law is very close to the second

Lemon prong.

The Probation Department now argues the applicability of the

Lemon three-prong test. This test arguably lost some of its

authoritativeness in the 1980's,'’ but its force now appears to have

been re-established.’ It is Warner's position that whether or not the

— : ' a

This Court, in Lemon v Kurtzman, 403 U.S. 602 (1971), promulgated a

three-pronged test for determining whether a challenged governmental act is

permissible under the Establishment Clause: first, the act must have a secular

purpose; second, its principal or primary effect must be one that neither advances

nor inhibits religion; and third, the act must not foster excessive entanglement with

religion.

'® The Second Circuit took essentially the same position. (40a)

+ See, e.g., Marsh v Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019

(1983) (applying an historical analysis to the question of whether the Nebraska

Legislature's practice of opening each legislative day with a prayer by a chaplain

paid by the State violated the Establishment Clause).

° See, e.g., County of Allegheny v ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106

L.Ed.2d 472 (1991) where the Supreme Court indicated a return to the

three-pronged test, putting emphasis on the second prong -- the appearance or effect

of endorsing religion. See also, Chabad-Lubavitch of Georgia v Miller, 976 F.2d

1386, 1392 (11th Cir. 1992); Otero v State Election Bd. of Oklahoma, 975 F.2d 738,

740 (10th Cir. 1992) (holding that the three-pronged test has been criticized but

never abandoned); Jones v Clear Creek Independent School Dist., 977 F.2d 963, 966

(Sth Cir. 1992).

17

Lemon test is utilized the conclusion is inexorable that the practical

effect of coercing probationers to work the Twelve Steps results in an

unconstitutional establishment of religion prohibited by Lee y

Weisman.

Applying the three-pronged Lemon test to the instant challenge,

Warner first concedes that the requirement that a probationer make an

effort to overcome his addiction serves a secular purpose; there is no

issue with respect to the first prong of the Lemon test. However,

Warner submits that the Probation Department's policy of using the

Twelve Steps violates both the second and third prongs of the test in

that a principle or primary effect of requiring attendance and

acceptance of the A.A. doctrine advances religion, or at a minimum

fosters an excessive, and unnecessary, entanglement with religion.

The fallacy of the Probation Department's argument lies in its

treatment of the first and second prongs of the Lemon test as though

they are interchangeable. After indicating that the "purpose" of A.A.

is secular and therefore satisfies the first prong, the Probation

Department pretends to address the second prong by arguing that the

principle or primary effect of encouraging participation in A.A. is not

to advance religious belief but to treat substance abuse. This crafty

argument restates A.A.'s professed purpose while obscuring the issue

of A.A.'s effect.”' Indeed, the Probation Department never comes to

terms with the question of whether its policy of using the Twelve Steps

has the effect of advancing religious belief. Its reason for avoiding this

question is rather obvious.

Finally, in Lamb's Chapel v Center Moriches Union Free School District, 124

L.Ed.2d 352, 363 n 7 (1993), a Six-justice majority observed that "we return to the

reality that there is a proper way to inter an established decision and Lemon,

however frightening it might be to some, has not been overruled."

*! It is one thing to try simply to get a substance abuser to overcome his

addiction. It is quite another to get him to hand over his will to "God" and to get

him to see himself as having to petition that "God" every day for the rest of his life,

that is, work the Twelve Steps.

18

The District Court below, on the other hand, addressed this issue

squarely when it determined "that sending probationers to

rehabilitation programs which engage in the functional equivalent of

religious exercise is an action which tends to establish a state religious

faith." (94a) The District Court correctly noted that while the

Probation Department may not have intended to establish a state

religious faith, "the practical effect of coercing probationers into the

exercise of religion is to tend towards a state-mandated and

state-approved religion." (94a) The result reached by the District

Court is mandated by the First Amendment. A government agency

may not require anyone, including probationers, to accept the

Probation Department's claim that words like "God" and "prayer" and

"Him" and "Higher Power" and "spirituality" and "faith" -- as these

words are used in the Twelve Steps -- have non-religious significance.

The exhortations contained in the Twelve Steps become no less

repugnant to the Establishment Clause simply because the probationer

might (theoretically) be told that he can interpret them in non-religious

terms. The fact that a person might be able to maintain his atheism (or

his particular form of religious conviction) in the face of indoctrination

administered in A.A.’s anthropomorphic, monotheistic terms does not

make his state-mandated exposure to such_ indoctrination

constitutional. The Twelve Step requirement still violates the second

and third prongs of the Lemon v Kurtzman (403 U.S. 602) test in that

a principal or primary effect of requiring acceptance of the A.A.

doctrine advances religion, and at a minimum fosters an excessive, and

unnecessary,” entanglement with religion.

The Probation Department seems to argue that the specific

references to "God" and "Him" can somehow be ignored and that there

is nothing wrong with the State methodically inducing probationers to

understand their problems in "spiritual" terms and to surrender their

2 a .

22 ‘The religious entanglement is "unnecessary" in the sense that the State can

achieve the goal of alcohol rehabilitation without coercing individuals to practice

religion. There are secular alternatives to A.A.

es AA ble RRA eet ate

19

wills to a spiritual "Higher Power". Apart from the unintelligibility of

its spiritual-but-secular "Higher Power", the Probation Department is

making the constitutionally erroneous assumption that there is nothing

wrong with the County dictating the terms in which human existence

is to be understood or in asserting the existence of such entities as "'a

Spirit of the Universe underlying the totality of things." As this Court

has made clear, matters such as "one's own concept of existence, of

meaning, of the universe, and of the mystery of human life" -- matters

that "define the attributes of personhood" -- must never be "formed

under compulsion of the State." Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 279] , 2807 (1992).

A probationer, like any other person,”* must be permitted to maintain

the integrity of his intellect, for such integrity is essential to the

preservation of human dignity and, thus, a free society.”

Moreover, the Establishment Clause violation does not occur solely

within the confines of the mandated A.A. meetings. It is the religious

foundation of the entire County program, together with the Probation

Department's exclusive endorsement of it and their coercion of Warner

and other probationers to participate in it, which violates the First

Amendment.

, See, also, Lee v Weisman, 112 S.Ct. at 2665, stating: "There is no doubt that

attempts to aid religion through government coercion jeopardize freedom of

conscience. Even subtle pressure diminishes the right of each individual to choose

voluntarily what to believe."

24 ua human being does not cease to be human because the human being is a

prisoner of the state."" Ward y Walsh, | F.3d 873, 876 (9th Cir. 1993) cert den 114

S.Ct. 1297.

7 “Freedom of thought, which includes freedom of religious belief, is basic in

a society of free men. * * * It embraces the right to maintain theories of life and

of death and of the hereafter which are rank heresy to the followers of the orthodox

faiths.” Board of Educ. v Barnette, 319 U.S. 624, 640-642.

20

Coerced” rarticipation in a program based upon the Twelve Steps

is consideratsi vy more than mere exposure to religious ideas or the mere

use of the word "God", as the Probation Department appears to argue.

It is overt religious indoctrination. To analogize it to the Marsh v

Chambers chaplain's prayer, and to distinguish Lee v Weisman on the

theory that adult probationers are not as susceptible as children,

ignores the fact that the very premise of the Orange County program

is that the participant is susceptible. Otherwise, the Probation

Department's program makes no sense at all.

In Engel v Vitale, 370 U.S. 421 (1962) this Court held that New

York's recommendation to the local school boards that they adopt the

practice of daily prayer’ violated the Establishment Clause: "We think

that by using its public school system to encourage recitation of the

Regent's prayer, the State of New York has adopted a practice wholly

inconsistent with the Establishment Clause." Engel, 370 U.S. at 424.

It is equally clear that by using its probation system to encourage

working the Twelve Steps, without providing a secular alternative, the

County of Orange has adopted a practice wholly inconsistent with the

Establishment Clause.

Finally, the Probation Department makes a throwaway argument

that if recommending attendance at A.A. meetings violates the

Establishment Clause, then it mattes not if probationers are given a

secular choice. (17) First, the Probation Department bases this

argument upon comments made by Judge Winters in a dissent that he

expressly withdrew . (5a) Second, this case does not involve the issue

6 ‘The fact that Wamer had the option of forgoing probation -- for imprisonment

(a rather silly argument) -- is of no moment. Once the County provides such a

program, it must do so in a manner that does not infringe upon constitutional rights.

See, Board of Education v Grumet, 114 S.Ct. at 2497, where Justice Souter,

expressing the view of the majority, stated that the Religion Clauses of the

Constitution "all speak with one voice on this point: Absent the most unusual

circumstances, one's religion ought not affect one's legal rights or duties or benefits."

27 wPhis dail y procedure was adopted on the recommendation of the State Board

of Regents." Engel, 370 U.S. at 422.

HC RT acho aie

ans ite hasta abit Me uN aioe etiscionrealnice

21

of whether the Establishment Clause would be violated if the

government offered a secular alternative to A.A. Third, an argument

could be made that whether offering an alternative would comport with

the Establishment Clause would depend upon how it was offered. If

the Probation Department offered A.A. as one of a number of

acceptable treatment programs without expressing any preference for

A. A. over the others, then it could be argued that the Department has

fulfilled its duty of neutrality on matters of religious belief.28

III. The Department of Probation Is Constitutionally Responsible for

its Policy of Requiring Probationers to Work Through the Twelve

Steps of A.A.

A. Foreseeability is a Question of Fact

The Court of Appeals below correctly applied the principle

enunciated in Malley v. Briggs, 475 U.S. 335, 334 n. 7 (1986) that

defendants sued under Section 1983 are "responsible for the natural

consequences of [their] actions". Any assertion by Orange County that

the imposition of Warner's sentence necessarily broke the "causal

chain" is "inconsistent with [this Court's] interpretation of Sec. 1983."

Malley v. Briggs, 475 U.S. at 344n. 7. The foreseeability of the

sentencing court's adoption of the Probation Department's

recommendation that Warner attend A.A. "is a question of fact" (32a)

which was properly determined by the District Court and properly

reviewed and affirmed by the Court of Appeals.

B. The Finding of F. oreseeability is not Clearly Erroneous

There is no basis for setting aside the Second Circuit's determination

that, "[g]iven the neutral advisory role of the probation officer toward

-

” By analogy, there is no question that the State can require all children be

educated. It does not violate the Establishment Clause for the State to indicate that

this requirement might be met by attendance at parochial schools, rather than the

secular public school.

22

the [sentencing] court, it is an entirely 'natural consequence[]'. . . for

a judge to adopt the [Probation Department's] recommendations as to

a therapy provider without making an independent investigation of the

qualifications and procedures of the recommended provider." (3 1a-

32a) Anyone familiar with our criminal justice system knows that

"[s]uch action by a judge is neither ‘abnormal’ nor 'unforeseen'." (32a)

Based upon the undisputed evidence, the Probation Department's

"recommendation that Warner be required to participate in A.A.

therapy was unquestionably made pursuant to a general policy."

(27a-28a) The Probation Department promulgated the use of A.A. as

a condition of probation to every criminal judge in Orange County

whenever the prospective probationer's use of alcohol was an issue.

No court ever Ordered the Probation Department to make A.A. one of

its standard conditions for probationers with alcohol problems. There

is also no dispute that it was the Probation Department's policy to use

the Twelve Steps of A.A. to monitor probationers and that this policy

was not forced upon the Probation Department by any criminal judge.

As stated by the District Court, "the idea of requiring [Warner] to

attend A.A. as a condition of probation originated with the Probation

Department, not with the judge." (92a)

Indeed, the undisputed facts confirm the Second Circuit's

observation that a sentencing court's "adoption of the probation

officer's recommendation is particularly likely when the

recominendation deals with a provider of therapy" and that "courts

generally rely heavily on [such] probation department

recommendations." (32a) The record shows that the Probation

Department initiated the idea of requiring A.A. without ever consulting

or seeking permission from a single criminal court judge. No court

ever issued an order directing the Probation Department to use the

Twelve Steps to monitor its probationers or to direct probationers who

might be ''13-Stepping" to attend Step meetings. In fact, the record is

devoid of any proof that there was a single criminal court in Orange

County which even knew what the Twelve Steps are or that the

Probation Department was using them.

23

But if Warner's sentencing Judge had questioned the Probation

Department about the nature of A.A.. the Department would have told

that judge that A.A. is not religious, since this is the position the

Department has always taken and continues to take in the instant

petition. Thus, implicit in the County's superseding cause theory is the

untenable, wholly unrealistic, assumption that a sentencing judge

would go behind the Probation Department's self-serving description

of A.A. and make further inquiries elsewhere. This is why there is no

substance to the County's complaint that the Second Circuit's decision

implies that sentencing courts merely "rubber stamp" Probation

Department recommendations.”

“Findings of fact . . . shall not be set aside unless clearly erroneous

..' Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S.

564, 572 (1985). The salient factual finding below -- that there was

"a high likelihood that a judge would follow" the Probation

Department's standard A.A. recommendation -- was based upon an

uncontroverted record and was definitely not "clearly erroneous". (32a-

33a) The requirement that Warner attend A.A. was the result of the

Probation Department's long-standing, systematic and exclusive use

of the Twelve Steps throughout Orange County, nor the exercise of an

individual sentencing judge’s informed discretion. As stated by the

District Court:

Even though technically it is the judge, not the Probation

Department, that imposes conditions of probation, in reality the

Probation Department was responsible for Warner's having to

attend A.A. The Constitution deals with realities, not technicalities.

» of course, even if a sentencing judge decided to attend an A.A. meeting

himself -- just to make sure he wasn't being a "rubber stamp" -- that judge, just like

Wamer, would be told by the A.A. members that the Probation Department was

rght and that A.A. is nof religious. The sentencing judge would have to go further

and sit in on sessions like the ones between Terwilliger and Wamer, in which

Terwilliger accuses Warmer of “1 3-stepping” and directs him to go to Step meetings.

That judge would also have to read the A.A. literature.

24

(92a) The Probation Department's contention to the contrary amounts

to nothing more than a factual argument already rejected by the courts

below.

C. The County's Distortion of the Sentencing Process

The County's factual argument is also misleading. In its Petition,

the County states that the issue of foreseeability "should have been

framed" by the lower courts "as whether it was foreseeable that a

ten-year avowed atheist who had attended four (4) or five (5) A.A.

meetings, some of which were held in churches and each of which

began and ended with a prayer, would have voiced some objection,

either at the time of sentencing, or within the time-frame allowed to

appeal from a sentence." (9-10) Nothing in this record, however, even

suggests that the Probation Department, when it made its

recommendation to Warner's sentencing judge, had any notice, actual

or constructive, of either Warner's atheism or his observations at the

A.A. meetings he attended.

In the same vein, it is misleading for the County to state that the

Probation Department's recommendation to the sentencing judge was

that "Warner continue as a condition of probation his previously

voluntary attendance at A.A." (27) This, too, is simply not true. The

Probation Department provided Warner's sentencing judge with the

Department's preprinted form entitled, "Additional Conditions of

Probation Pertaining to Alcohol". This preprinted form, which is

provided to the sentencing court whenever alcohol is an issue (Joint

Appendix to Court of Appeals, 137a), states to the prospective

probationer, "That you will attend Alcoholics Anonymous at the

direction of your Probation Officer." (Joint Appendix to Court of

Appeals, 21a) This form was attached to Warner’s probation report in

case the judge decided to sentence Warner to probation; not, as the

County disingenuously states, as a recommendation that ''Warner be

allowed probation, rather than be incarcerated, with the ‘special’

condition that he continue his attendance at A.A. meetings" (5,

emphasis added)

25

The County's motive for distorting the record in this manner is

obvious. By creating the mis-impression that the Probation

Department recommended that Warner receive probation so long as he

continued to attend A.A. meetings, the County makes it appear as

though the sentencing court was focused upon the choice of therapy

provider, as opposed to the mere basic question of whether probation

and alcohol therapy were even appropriate. The County obfuscates the

Court of Appeals' important distinction between "the selection of a

therapy provider", which was made, as a matter of county-wide policy,

by the Probation Department, andthe "determination of

appropriateness of probation and of alcohol therapy", which is made,

on a case-by-case basis, by the sentencing judge. (32a, n. 4)

D. The County's Immunity Argument

The County also makes the impermissible and meritless argument

that Warner's injury was not foreseeable because the Probation

Department's conduct was “objectively reasonable”. See, e.g.,

Petition, p 28 ("If it was objectively reasonable for county officials to

have recommended the later-determined ‘of, fensive' condition, how was

the 'harm' foreseeable'?") This argument must be rejected for three

reasons.

First, by pointing to the purported “objective reasonableness" of the

Probation Department's conduct, the County is attempting to raise the

defense of immunity which it waived by never raising the issue until

its reply brief on appeal. (27a, n.1)°° The Second Circuit, citing

Singleton v. Wulff, 428 U.S. 106, 120 (1976) rightly refused to hear

the County on the question of immunity, since "[a]n issue raised for the

first time on appeal is not properly before th{e] court". (27a, n.i)

7 Not only did the County "fail to ever raise[] a defense of immunity before the

district court", its "failure to raise the issue on appeal in its initial brief deprived

Wamer of the opportunity to dispute the question and deprived the court of the

benefit of both side's briefing." (27a, n.1)

i

26

Second, even if there had not been a waiver, the Court of Appeals,

citing Owen v. City of Independence, 445 U.S. 622 (1980), correctly

Observed that the defense of immunity is not available to a

municipality. (41a, n 9)

Third, the County's remarks about the "objective reasonableness" of

the Probation Department's recommendation of A.A. has no bearing

upon the factual issue of the "foreseeability" of the sentencing court's

adoption of that recommendation. The question of "objective

reasonableness" is one of law: whether the Probation Department's

recommendation violated a clearly established constitutional right at

the time it was issued. The question of "foreseeability", on the other

hand, is one of fact: whether it was a foreseeable consequence of the

Probation Department's recommendation that Warner would be

required to attend A.A. as a condition of his probationary sentence. In

its Petition, the County argues as though these two questions are one

and the same, but, in fact, they are quite separate and distinct. The

issue of foreseeability is not whether the "harm" flowing from the A.A.

requirement was foreseeable, but whether the A.A. requirement, itself,

was foreseeable. The latter question can be answered in the

affirmative, even if the former were to be answered in the negative.

E. The Waiver and Consent Issues Were Fully Heard and Determined

The County states that the Courts below "focus[ed] exclusively" on

foreseeability and proximate cause and "completely failed to apply or

balance other equally important and applicable rules governing

intentional torts, including superseding causes, waiver and consent."

This statement is groundless. Not only was the Court of Appeals

expressly mindful of these concerns, it went so far as to issue an Order

of Remand (51 a-53a) directing the District Court to conduct a hearing

|

27

and make specific findings se that these concerns would be fully

addressed."

Notably, the Court of Appeals issued its Order of Remand despite

the County’s failure to raise the issues of consent or waiver before the

District Court and on its appeal. It was not until after Chief Judge

Winters' dissent that the County (in its motion for reargument) ever

took the position that Warner must have known that A.A. is religious

-- a position which the District Court correctly observed is "directly

contrary to [the County's] basic position that the A.A. program has no

religious content." (12a)

F. The Issues on Remand Were Correctly Determined

The District Court's determination of the waiver/consent issue, like

its determination of the issue of foreseeability, was in no way "clearly

erroneous". Fed.R.Civ.P. 52(a); Anderson y. City of Bessemer City,

supra. Indeed, the uncontroverted facts adduced at the remand hearin zg

compelled the District Court's finding that there was no waiver or

consent. As stated in the Court of Appeals' Opinion, "the district

court's factual findings are amply supported by the record, and its

conclusion that there was no consent, wavier or forfeiture follows

inevitably from these findings." (4a)

Based upon the undisputed evidence, the District Court found that,

although the A.A. program is "deeply religious" (15a) and Warner

perceived some of its religious aspects at the meetings he attended

before his sentencing (16a), "[a]t these meetings, A.A. members

attempted to convince him that their approach was not religious only

‘spiritual’ and that different people have different concepts as to what

God is", and that "God could be anything, even a 'spoon'." (1 4a-16a)

Although this "didn’t make sense" to Warner at the time, he "wanted

- The Court of Appeals explained that it "remanded to the district court for

factual findings on these issues, and the district judge's findings dispel those

concems." (4a, n. 1)

28

to give Alcoholics Anonymous a fair hearing in [his] mind", and

eventually "[cloncluded that the organization of Alcoholics

Anonymous lies when they say that they are not religious." (March 10,

1994, Oral Deposition of Robert Warner, nages 92-93)”

The uncontroverted proof at the remand hearing showed that it was

not until long after Warner's sentencing, when his probation officer

began directing him to obtain a sponsor and to attend Step meetings,

that Warner "'bec[a]me fully aware of the religious intensity of the step

meetings." (14a) The District Court found that Warner "tried to

reconcile his own perceptions with what others were telling him, but

he gradually decided that they were wrong and were attempting to trick

him." (15a)

There is no basis in the record to upset the District Court's

determination that it was "[o]ver a period of two years" that ''Warner

ultimately became convinced that the A.A. program was religious, and

that he was being subjected to religious indoctrination" (16a) and that

Warner, therefore, did not knowingly or voluntarily waive, or in any

other manner relinquish, his Establishment Clause right at the time of

his sentencing or within the time he could have taken an appeal.

G. The County's “Independent Cause” Argument is Illogical

The County argues that "the judicial act of formalizing the [A.A.]

recommendation constitutes an independent cause which supersedes the

initial recommendation" of the Probation Department. (28) The

County therefore is forced to claim that "it was not foreseeable that

Warner would not have voiced some concern" about the religious

Warmer gave this testimony two and one half years prior to Chief Judge

Winter's Dissenting Opinion, long before the issue of consent and waiver ever

entered this litigation.

3 this is assuming that the sentencing judge would not have "formalized" (28)

the recommendation if Warmer had objected to it.

29

nature of A.A. "after having voluntarily attended four or five A.A.

meetings" before the date of his sentencing. (28) But, by making this

latter claim, the County contradicts its main position that A.A. is not

"sufficiently 'religious' to trigger the Establishment Clause of the First

Amendment" (11)

On the one hand, the County argues that simply by attending a mere

four or five A.A. meetings, even without the benefit of the A.A.

literature contained in this record, Warner must have realized that the

A.A. disclaimers about the program's religiosity were untrue. ** On the

other hand, the County points to the purportedly "flexible nature of

A.A. and its accommodation of various spiritual and non-spiritual

philosophies" (12) to argue that "[n]o reasonable person would view

referral to A.A. as a governmental endorsement of religion" (13)

Thus, in order to make the argument that the judicial imposition of

Warner's sentence broke the causal chain, the County is forced to

assert that Warner's failure to object to (or appeal) his sentence was

unforeseeable, the implication being that A.A. meetings (no matter

what kind) are so blatantly religious that no reasonable person who

attended them could have had any doubt about it. The problem with

the County’s argument is that the District Court found otherwise: that

Warner did "tr[y] to reconcile his own perceptions with what others

were telling him" at the meetings. (15a) As elsewhere in its Petition,

the County is just rearguing facts that have already been determined

below.

* The District Court's December 14, 1994, finding at trial that A.A. is, in fact,

religious was based upon proof of (1) what went on in the different kinds of A.A.

meetings Warmer attended, particularly the Step meetings Wamer’s probation officer

directed him to attend long after the date of sentencing, (2) the manner in which the

probation officer intensified Wamer’s Participation in the program when Wamer

protested, which included having Wamer obtain a sponsor and work the Twelve

Steps. and (3) the contents of the basic A.A. literature, including Twelve Steps and

Twelve Traditions and Alcoholics Anonymous (the "Big Book"). The proof at the

1994 trial showing that A.A. is religious went far beyond what Warmer observed ai

his first four or five voluntarily attended meetings.

H. Conclusion

The County's self-contradictory arguments also, in effect, ask this

Court to sanction a county-wide establishment of religion that could

never be remedied except on a case-by-case basis by probationers who

have the courage, strength of conviction and financial resources to

make individual motions to their sentencing courts. What makes

matters worse is that so long as a probation department immediately

offers an alternative to A.A. whenever an individual probationer

objects to his sentencing judge (like the Probation Department did in

Warner's case), and that judge thereby declares the probationer's

objection moot (as did Warmer's sentencing judge), the government's

systemic constitutional violation could never be addressed.

It would be analogous to requiring the school children in Engel v.

Vitale to suffer through daily classroom prayer sessions ualess and

until they mustered the nerve to ask their teacher for permission to

leave the room. Unlike the Free Exercise Clause which affords

protection to the individual, the Establishment Clause protects the

public, including probationers.

CONCLUSION

The Petition should be denied.

Dated: September 18, 1999

Respectfully submitted by:

ROBERT N. ISSEKS, ESQ.

(Counsel of Record)

6 North Street

Middletown, New York 10940

(914) 344-4322

Attorney for Respondent

Of Counsel:

ALEX SMITH, ESQ.,

la

Appendix A." Twelve Steps of Alcoholics Anonymous"

We admitted we were powerless over alcohol -- that our lives had

become unmanageable.

Came to believe that a power greater than ourselves could restore

us to sanity.

Made a decision to turn our will and our lives over to the care of

God as we understood Him.

Made a searching and fearless moral inventory of ourselves.

Admitted to God, to ourselves and to another human being the

exact nature of our wrongs.

Were entirely ready to have God remove all these defects of

character.

Humbly asked Him to remove all of our shortcomings.

Made a list of all persons we had harmed, and became willing to

make amends to them all.

Made direct amends to such people wherever possible, except

when to do so would injure them or others.

Continued to take personal inventory and when we were wrong

promptly admitted it.

Sought through prayer and meditation to improve our conscious

contact with God, as we understood Him, praying only for

knowledge of His will for us and the power to carry that out.

2a

Having had a spiritual awakening as a result of these steps, we

tried to carry this message to alcoholics, and to practice these

principles in all our affairs.

(emphasis in original)

3a

Appendix B.

Excerpts from "Twelve Steps and Twelve Traditions"

Some of us won't believe in God, others can't, and still others who do

believe that God exists have no faith whatever He will perform this

miracle [of removing our obsession] . . . Let's look first at the case of

the one who says he won't believe -- the belligerent one. He is in a

state of mind which can be described only as sa’ ige. (Step Two TSTT

25)

Whether agnostic, atheist, or former believer, we can stand together

on... Step [Two]. True humility and an open mind can lead us to

faith, and every A.A. meeting is an assurance that God will restore

us to sanity if we rightly relate ourselves to Him. (Step Two TSTT 33)

Like all the remaining Steps, Step Three calls for affirmative action,

for it is only by action that we can cut away the self-will which has

always blocked the entry of God -- or, if you like, a Higher Power

-- into our lives. Faith, to be sure, is necessary, but faith alone can

avail nothing. We can have faith, yet keep God out of our lives.

Therefore our problem now becomes just how and by what specific

means shall we be able to let Him in? Step Three represents our

first attempt to do this. In fact, the effectiveness of the whole A.A.

program will rest upon how well and earnestly we have tried to

come to a ‘decision to turn our will and our lives to the care of God

as we understood Him. (Step Three TSTT 34-35)

All of the Twelve Steps require sustained and personal exertion to

conform to their principles and so, we trust, to God's will. (Step

Three TSTT 40)

It is when we try to make our will conform with God's that we begin

to use it rightly. To all of us, this was a most wonderful revelation.

Our whole trouble had been the misuse of willpower. We had tried

to bombard our problems with it instead of attempting to bring it

into agreement with God's intention for us. To make this

4a

increasingly possible is the purpose of A.A.'s Twelve Steps, and

Step Three opens the door. (Step Three TSTT 40)

Step Five is "the beginning of a true kinship with man and God."

(Step Five TSTT 57)

Many an A.A., once agnostic or atheistic, tells us that it was during

this stage of Step Five that he first actually felt the presence of God.

And even those who had faith already often become conscious of

God as they never were before. (Step Five TSTT 62)

This feeling of being at one with God and man, this emerging from

isolation through the open and honest sharing of our terrible burden

of guilt, brings us to a resting place where we may prepare ourselves

for the following Steps toward a full and meaningful sobriety. Step

Five TSTT 62)

Of course, the often disputed question of whether God can -- and

will, under certain conditions -- remove defects of character will be

answered with a prompt affirmative by almost any A.A. member.

To him, this proposition will be no theory at all; it will be just about

the largest fact in his life. (Step Six TSTT 63)

[I]n avery complete and literal way, all A.A.'s have 'become entirely

ready' to have God remove the mania for alcohol from their lives.

And God has proceeded to do exactly that. (Step Six TSTT 64)

If we ask, God will certainly forgive our derelictions. (Step Six

TSTT 65)

So Step Six -- 'Were entirely ready to have God remove all these

defects of character’ -- is A.A.'s way of stating the best possible

attitude one can take in order to make a beginning on this lifetime

job. (Step Six TSTT 65)

No matter how far we have progressed, desires will always be found

which oppose the grace of God. (Step Six TSTT 66)

ee ee

Sa

{T]he difference b tween 'the boys and the men’ is the difference

between striving fora self-determined objective and for the perfect

objective which is of God. (Step Six TSTT 68)

The moment we say, 'No, never!’ our minds close against the grace

of God. Delay is dangerous, and rebellion may be fatal. This is the

exact point at which we abandon limited objectives, and move

toward God's will for us. (Step Six TSTT 69)

For just so long as we were convinced that we could live exclusively

by our own individual strength and intelligence, for just that long

Was a working faith in a Higher Power impossible. This was true

even when we believed that God existed. We could actually have

earnest religious beliefs which remained barren because we were

still trying to play God ourselves. As long as we placed self-reliance

first, a genuine reliance upon a Higher Power was out of the

question. That basic ingredient of all humility, a desire to seek and

do God's will, was missing. (Step Seven TSTT 73)

Refusing to place God first, we had deprived ourselves of His help.

But now the words 'Of myself I am nothing, the Father doeth the

works' began to carry bright promise and meaning. (Step Seven

TSTT 75)

The Seventh Step is where we make the change in our attitude which

permits us, with humility as our guide, to move out from ourselves

toward others and toward God. (Step Seven TSTT 76)

Whenever our pencil falters, we can fortify and cheer ourselves by

remembering what A.A. experience in this Step has meant to others.

It is the beginning of the end of isolation from our fellows and from

God. (Step Eight TSTT 82)

As an insurance against ‘big-shot-ism' we can often check

ourselves by remembering that we are today sober only by the grace of

6a

God and that any success we may be having is far more His success

than ours. (Step Ten TSTT 92)

Prayer and meditation are our principal means of conscious contact

with God. (Step Eleven TSTT 96)

It has been well said that ‘almost the only scoffers at prayer are

those who never tried it enough. (Step Eleven TSTT 97)

We all need the light of God's reality, the nourishment of His

strength, and the atmosphere of His grace. To an amazing extent the

facts of A.A. life confirm this ageless truth. (Step Eleven TSTT 98)

Now and then we may be granted a glimpse of that ultimate reality

which is God's kingdom. And we will be comforted and assured that

our own destiny in that realm will be secure for so long as we try,

however falteringly, to find and do the will of our own Creator.

(Step Eleven TSTT 98)

The object of meditation "is always the same: to improve our

conscious contact with God, with His grace, wisdom, and love."

(Step Eleven TSTT 100)

Now what of prayer? Prayer is the raising of the heart and mind to

God -- and in this sense it includes meditation. How may we go

about it?) And how does it fit in with meditation? Prayer, as

commonly understood, is a petition to God. Having opened our

channel as best we can, we try to ask for those right things of which

we and others are in the greatest need. And we think that the whole

range of our needs is well defined by that part of Step Eleven which

says: '... knowledge of His will for us and the power to carry that

out.’ A request for this fits in any part of our day. (Step Eleven

TSTT 102)

... when making specific requests, it will be well to add to each one

of them this qualification: '. . . if it be Thy will.’ We ask simply that

7a

throughout the day God place in us the best understanding of His

will that we can have for that day, and that we be given the grace by

which we may carry it out. (Step Eleven TSTT 102)

In A.A. we have found that the actual good results of prayer are

beyond question. They are matters of knowledge and experience

..- Almost any experienced A.A. will tell how his affairs have taken

remarkable and unexpected turns for the better as he tried to

improve his conscious contact with God... All of us, without

exception, pass through times when we can pray only with the

greatest exertion of will. Occasionally we go even further than this.

We are seized with a rebellion so sickening that we simply won't

pray. When these things happen we should not think too ill of

ourselves. We should simply resume prayer as soon as we can,

doing what we know to be good for us. (Step Eleven TSTT 104- 105)

We know that God lovingly watches over us. We know that when

we turn to Him, all will be well with us, here and hereafter. (Step

Eleven TSTT 105)

Reviewing the first eleven Steps it is observed that "in Step Three

we turned our will and our lives over to the care of God as we

understood Him. For the time being, we who were atheist or

agnostic discovered that our own group, or A.A. as a whole, would

suffice as a higher power. . . [P]racticing these Steps, we had a

spiritual awakening about which finally there was no question.

Looking at those who were only beginning and still doubted

themselves, the rest of us were able to see the change setting in.

From great numbers of such experiences, we could predict that the

doubter who still claimed that he hadn't got the 'spiritual angle,' and

who still considered his well-loved A.A. group the higher power,

would presently love God and call Him by name. (Step Twelve

TSTT 107-109)

Practically every A.A. member declares that no satisfaction has

been deeper and no joy greater than in a Twelfth Step job well done.

Sa

To watch the eyes of men and women open with wonder as they

move from darkness into light, to see their lives quickly fill with

new purpose and meaning, to see whole families reassembled, to see

the alcoholic outcast received back into his community in full

citizenship, and above all to watch these people awaken to the

presence of a loving God in their lives -- these things are the

substance of what we receive as we carry A.A.'s message to the next

alcoholic. (Step Twelve TSTT 110)

When we developed still more, we discovered the best possible

source of emotional stability to be God himself. We found that

dependence upon His perfect justice, forgiveness, and love was

healthy, and that it would work where nothing else would. (Step

Twelve TSTT 116)

Service, gladly rendered, obligations squarely met, troubles well

accepted or solved with God's help, the knowledge that at home or

in the world outside we are partners in a common effort, the

well-understood fact that in God's sight all human beings are

important, the proof that love freely given surely brings a full return,

the certainty that we are no longer isolated and alone in

self-constructed prisons, the surety that we need no longer be square

pegs inround holes but can fit and belong in God's scheme of things

-- these are the permanent and legitimate satisfactions of right living

for which no amount of pomp and circumstance, no heap of material

possessions, could possibly be substitutes. True ambition is not

what we thought it was. True ambition is the deep desire to live

usefully and walk humbly under the grace of God. (Step Twelve

TSTT 124-125)

With each passing day of our lives, may every one of us sense more

deeply the inner meaning of A.A.'s simple prayer:

God grant us the serenity to accept the things we cannot change.

Courage to change the things we can,

And wisdom to know the difference." (Step Twelve TSTT 125)

9a

Appendix C.

Page 45 from Chapter Four of the "Big Book" entitled "We Agnostics"

If, when you honestly want to, you find you cannot quit

entirely, or if when drinking, you have little control over the amount

you take, you are probably an alcoholic. If that be the case. you

may be suffering from an illness which only a spiritual experience

will conquer.

To one who feels he is an atheist or agnostic such an experience

seems impossible, but to continue as he is means disaster, especially

if he is an alcoholic of the hopeless variety. To be doomed to an

alcoholic death or to live on a spiritual basis are not always easy

alternatives to face.

But it isn't so difficult. About half our original fellowship were

exactly of that type. At first some of us tried to avoid the issue,

hoping against hope we were not true alcoholics. But after a while

we had to face the fact that we must find a spiritual basis of life --

orelse. Perhaps it is going to be that way with you. But cheer up,

something like half of us thought we were atheists oragnostics. Our

experience shows that you need not be disconcerted.