Frances Warner, Plaintiff, v. John Graham, et al., Defendant
Civil No. A1-85-259
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA, SOUTHWESTERN DIVISION
675 F. Supp. 1171
May 15, 1987, Decided
May 15, 1987, Filed
SUBSEQUENT HISTORY: Reversed, April 27, 1988.
JUDGES: Conmy, Chief Judge.
OPINION BY: CONMY
OPINION
[*1172] MEMORANDUM AND ORDER
CONMY, Chief Judge
Frances Warner sues defendants for violation of her first amendment right to free
exercise of her religion. 42 U.S.C. § 1983. Defendants have moved this court for
summary judgment pursuant to Rule 56, Fed.R.Civ.P.
Summary judgment is appropriate where there are no genuine issues of material fact
and it appears that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). Williams v. City of St. Louis, 783 F.2d 114, 115 (8th
Cir. 1986). For purposes of a motion for summary [*1173] judgment
this court must view the facts in the light most favorable to the non-moving party,
and must give that party the benefit of all reasonable inferences to be drawn from
the facts. Matsushita Electric Indust. Co. v. Zenith Radio Corp., 475 U.S.
574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986); Kegel v. Runnels,
793 F.2d 924, 926 (8th Cir. 1986). Summary judgment is an extreme remedy, and should
not be entered unless the movant establishes its right to judgment with such clarity
as to leave no room for controversy; the non-movant must not be entitled to recover
under any discernible circumstances. Foster v. Johns-Manville Sales Corp.,
787 F.2d 390, 392 (8th Cir. 1986).
FACTS
The following facts are not disputed:
Termination
In 1981 the Lake Region Human Services Center hired plaintiff as a consultant on
an independent contract basis to provide drug and alcohol education to various public
schools, non-profit associations, and other groups both on and off the Devils Lake
Sioux Indian Reservation.
In 1982, plaintiff became a full-time Program Specialist with the Lake Region Human
Services Center. The Position Information Questionnaire for the position indicated
that plaintiff's primary function was to provide alcohol and drug education services
of a preventive nature to students in grades 5-12 (45% of allocated time). She was
also to conduct chemical abuse awareness sessions with adults and community groups,
develop a "minor in possession" program, participate in incest groups,
and other specialized assignments (25% of time); assist addiction counselors in
assigned tasks related to overall case plans for addicted individuals and families
(20% of time); and work with community groups and caretakers in doing needs assessments
and effectiveness of services data collection (10% of time).
On July 13, 1984, plaintiff was arrested and charged with distribution and possession
with intent to distribute peyote, a Schedule I, non-narcotic controlled substance,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. She was acquitted of these
charges on October 29, 1984.
On July 16, 1984, plaintiff discussed the situation with defendant Duainne Bourcy,
the regional director for the Lake Region Human Services Center. During the meeting,
plaintiff admitted that she used peyote, and explained that this use was associated
with her religious practices in the Native American Church.
After the meeting, Bourcy telephoned Wayne Anderson, the deputy director of the
Department of Human Services, and they decided that the appropriate course of action
was to suspend plaintiff for thirty days without pay, pending the outcome of the
criminal proceedings. Bourcy and Anderson had previously discussed various options
and prior practices within the Department in deciding which course to follow with
plaintiff.
Bourcy mailed a letter notifying plaintiff of her suspension on the same date. The
letter informed plaintiff that, if the charges were dropped or she were acquitted,
she might be reinstated. Lake Region reserved the right to alter her employment
status at any time, however.
On August 14, 1984, plaintiff was suspended without pay for an indeterminate period.
This suspension was purely procedural: since personnel guidelines only permitted
thirty-day suspensions, and it appeared that criminal proceedings would require
more time, Bourcy and Anderson placed plaintiff on an indefinite leave of absence.
On September 25, 1984, Bourcy met with Anderson, defendant John Graham, the Executive
Director of the Department of Human Services; and Assistant Attorneys General Judith
Cummings and Blaine Nordwall. Bourcy then informed the others that plaintiff had
admitted to using peyote, and that she intended to continue using peyote. Mr. Bourcy
also stated that several school officials and community members had expressed an
unwillingness to allow plaintiff into their schools and community groups, even if
she were acquitted. Mr. Bourcy did not explain that the plaintiff's [*1174]
use of peyote was connected with the practice of her religion. Everyone agreed that
plaintiff should be terminated.
On September 27, 1984, Bourcy sent plaintiff a letter informing her that she had
been terminated because of her admitted use of peyote and the adverse effect this
use would have on her working relationships with clients and addiction professionals.
Plaintiff filed a grievance.
On October 2, 1984, an internal grievance procedure hearing was held before a hearing
officer; the officer recommended upholding plaintiff's termination. The officer
considered various testimony, and determined that Bourcy's stated reasons must be
accepted as fact, and cannot be said to be without substance or reasoned basis.
Because personnel policies and procedures had been followed, the hearing officer
found that he was required to recommend that the regional director's actions be
upheld. The hearing officer recommended, however, that plaintiff's request to be
placed in alternative employment (i.e., sexual abuse counseling) be given serious
consideration.
On November 8, 1984, defendant Graham upheld Bourcy's decision to terminate plaintiff,
finding that his conclusions regarding plaintiff's future effectiveness was upheld
by the record. Graham also stated that his decision was reached after "lengthy
consideration of Mrs. Warner's claimed constitutional protection for her continued
use of peyote. It is not my intent to deny that claimed right." The reason
for her termination was that her use of a "mind-altering substance" was
deemed inappropriate for her position, and that her reinstatement would harm the
Department's clients and other public agencies served by the Department. Graham
recommended, however, that plaintiff be given priority consideration for vacant
human service center positions, and directed that the personnel division provide
her with weekly job opening announcements.
Plaintiff appealed this decision to the State Personnel Board, and an investigatory
hearing was held on December 10, 1984 before hearing officer Darwin Heinitz.
On January 28, 1985 Heinitz gave the State Personnel Board his Findings of Fact,
Conclusions of Law and Recommendation. Mr. Heinitz stated in his Recommendation
that plaintiff's acquittal had removed "use and possession of a controlled
substance" as a ground for dismissal; the only "cause" that remained
was plaintiff's effectiveness as an alcohol and drug educator. Since the extent
of the effects on plaintiff's job duties, working relationships, etc., was unknown,
Mr. Heinitz recommended that plaintiff be reinstated. Based on the Findings, Conclusions
and Recommendation, the State Personnel Board found that plaintiff's termination
was inappropriate, and ordered that plaintiff be reinstated with full back pay and
benefits.
On February 6, 1985, defendants Weldee Baetsch, Director of Personnel of the Department
of Human Services, and Bourcy met with plaintiff to discuss implementation of her
return. Plaintiff signed in for work later that afternoon. Plaintiff then requested,
and received, annual leave until February 11, 1985.
On February 7, 1985, plaintiff contacted Baetsch and informed him that she wanted
her reinstatement revoked. Baetsch informed plaintiff that he was not authorized
to do that. Baetsch then returned to Devils Lake and met with plaintiff to negotiate
the terms of her reinstatement.
The parties met for three days, but no agreement could be reached.
On February 21, 1985, Darwin Heinitz (the hearing officer before the State Personnel
Board) met with plaintiff and Bourcy and made recommendations to facilitate plaintiff's
return to work. Plaintiff left the meeting after the recommendations had been made,
and immediately submitted her written resignation.
On March 26, 1985, defendants accepted plaintiff's resignation.
Unemployment Benefits
On July 31, 1984, plaintiff applied for unemployment benefits. On August 14, 1984,
she was determined disqualified from benefits from July 29, 1984 through August
18, 1984.
[*1175] On August 22, 1984, plaintiff appealed the August 14 determination.
On September 17, 1984, an Appeals Referee held a telephonic hearing on plaintiff's
appeal. On September 19, 1984, the Appeals Referee held that plaintiff was entitled
to unemployment compensation benefits effective July 29, 1984 and thereafter as
long as she continued to meet the legal eligibility requirements. The Appeals Referee
found that the Department of Human Services had failed to establish that plaintiff's
suspension involved misconduct.
On September 28, 1984, the Department of Human Services requested Bureau review
of the Appeals Referee's decision. This request was granted on October 15, 1984,
and a remanded hearing was held November 20, 1984, at the Devils Lake Job Service
office.
On January 2, 1985, the Appeals Referee at the remanded hearing found that the Department
had failed to establish that the reasons for plaintiff's suspension involved misconduct,
and that plaintiff was therefore entitled to benefits effective July 29, 1984 through
September 22, 1984. The Appeals Referee found, however, that the reasons for plaintiff's
discharge did constitute misconduct, [Footnote 1] and that she was therefore disqualified
from benefits effective September 23, 1984.
Decision on Review 3-4 (Defendant's Appendix at 35, 37-38).
On January 15, 1985, plaintiff petitioned for judicial review of the January 2 decision.
On April 22, 1985, the state district court dismissed plaintiff's petition for improper
venue.
On May 1, 1985, the Executive Director of Job Service North Dakota issued a Redetermination
finding that since plaintiff had been reinstated with full back pay and benefits
she had not been discharged.
Following plaintiff's resignation on February 21, 1985, she again applied for unemployment
benefits. On March 15, 1985, a claims deputy issued a termination which disqualified
plaintiff from benefits.
On April 18, 1985, an Appeals Referee affirmed that determination; on October 16,
1985, the Executive Director of Job Service affirmed the Appeals Referee's decision,
finding that plaintiff had left her job without good cause attributed to her employer.
Plaintiff did not appeal or seek review of the October 16 decision.
On September 23, 1985, plaintiff brought this action.
LAW
Preclusive Effect of Previous Administrative Proceedings
Defendants argue that plaintiff is precluded from relitigating issues determined
in the various state administrative proceedings.
In University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92
L. Ed. 2d 635 (1986), the United States Supreme Court held that when a state agency
acting in a judicial capacity resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate, federal courts must
give the agency's factfinding the same preclusive effect to which it would be entitled
in the state's courts. Id. at 3227 (quoting United States v. Utah Constr.
& Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d
642 (1966)).
The Eighth Circuit has applied this standard on three occasions. Yancy v. McDevitt,
802 F.2d 1025 (8th Cir. 1986); Richardson v. Phillips Petrol. Co., 799
F.2d 426 (8th Cir. 1986); and Deretich v. Office of Admin. Hearings, State of Minn.,
798 F.2d 1147 (8th Cir. 1986). In each case, the court stated the standard, and
then looked [*1176] to the applicable state law to determine whether
the state courts would have given the agency's factual findings preclusive effect.
This court must therefore look to North Dakota law and determine whether the courts
of that state would give preclusive effect to the factual findings of its administrative
agencies.
In Amerada Hess Corp. v. Furlong Oil & Mins. Co., 348 N.W.2d 913 (N.D.
1984), the North Dakota Supreme Court found that the Order of the Industrial Commission
was res judicata, and that the plaintiff's suit for an injunction was an improper
collateral attack on the order. Id. at 916.
In 1982 defendant Furlong Oil & Mins. Co. applied to the North Dakota Industrial
Commission for authority to enter a well bore drilled and completed by plaintiff
Amerada in 1956. Amerada shut in the well in 1969, and relinquished its oil and
gas lease in 1974. Following a hearing, at which Amerada was present and participated,
the Industrial Commission issued an Order granting Furlong permission to enter the
well. The Industrial Commission found that Amerada had deserted the well, and that
it would be more economical to produce other wells through the existing well than
to drill a second well. Amerada did not appeal the determination.
Amerada then sought and obtained a temporary restraining order from the state district
court. Furlong filed an ex parte application for dissolution of the order, and both
parties appeared at a hearing on the application. The district court ultimately
dissolved the restraining order, finding that Amerada had abandoned the well.
The supreme court found that the district court would have been justified in dismissing
the action for injunctive relief as an improper collateral attack on the Industrial
Commission's Order. Id. at 916. Amerada had had a full and fair opportunity
to litigate the issue before the Commission. The findings of the Commission reflected
its expertise in the area. Amerada had the opportunity to seek judicial review of
the Commission's order, and chose not to. No fraud or bad faith were alleged, and
there appeared to be no jurisdictional defects. Accordingly,
The situation presented here is precisely the type in which the doctrine of res
judicata is most necessary to prevent collateral attacks on administrative agency
decisions in order to protect successful parties from unnecessary, duplicitous proceedings
and to prevent the drain on the resources of the parties and the judiciary which
is evident here.
Id. at 917.
The Job Service of North Dakota and the State Personnel Board are "administrative
agencies" within the meaning of the North Dakota Century Code. Lord v. Job
Service N.D., 343 N.W.2d 92, 94 (N.D. 1984); Hammond v. N.D. Personnel Bd.,
332 N.W.2d 244, 246 (N.D. 1983). Accordingly, in North Dakota, their decisions will
be given preclusive effect in a subsequent state action where the parties had a
full and fair opportunity to litigate and an opportunity to seek judicial review
in a state court, where there is no fraud or bad faith alleged, and where there
are no jurisdictional defects. Amerada Hess, 348 N.W.2d at 916-17.
None of the parties has alleged fraud or bad faith in the proceedings before the
various agencies in this case. Nor do there appear to be any jurisdictional defects.
The parties all had full and fair opportunities to litigate the facts surrounding
plaintiff's dismissal, and this court therefore finds that certain fact findings
are entitled to res judicata effect.
Plaintiff has provided this court with a copy of the transcript of the hearing before
the State Personnel Board; both parties have provided a copy of the hearing officer's
Findings of Fact & Conclusions of Law. This court finds that these Findings
of Fact are entitled to preclusive effect for the reasons stated above.
Also, the April 18, 1985 Appeals Referee Decision, and the October 16, 1985 Executive
Director's Decision are entitled to preclusive effect.
On the other hand, the findings of Robert Brady, the hearing officer at the [*1177]
October 2, 1984 hearing, are not entitled to preclusive effect. Mr. Brady admitted
that he was required to accept the statements of Mr. Bourcy as fact. See Appendix
to Brief in Support of Defendants' Motion for Summary Judgment 4. Since there was
apparently no weighing of testimony, or "fact-finding," his findings are
not entitled to preclusive effect.
Similarly, since defendant Graham's determination was based solely upon the findings
of Mr. Brady, his determination is not entitled to preclusive effect.
The remainder of the decisions issued by the various administrative agencies are
either surplusage, or do not contain factual findings relevant to the issues now
before the court.
This court is not bound, however, by the agencies' legal analysis or conclusions,
and must therefore give de novo consideration to plaintiff's free exercise claims.
Free Exercise
The first amendment to the United States Constitution preserves to the individual
the right to free exercise of religion. The right of belief is absolute, but the
right of conduct based upon those beliefs is not, and can be regulated by the state.
Sherbert v. Verner, 374 U.S. 398, 402-03, 83 S. Ct. 1790, 1793, 10 L. Ed.
2d 965 (1963).
In considering a free exercise claim, the court must apply a traditional balancing
test. First, the plaintiff must establish that the defendants have burdened a sincerely
held religious belief. The burden then shifts to defendants to show that they have
a compelling state interest that outweighs plaintiff's interest in free exercise.
Id. Finally, defendants must show that the means by which the compelling
state interest is achieved is the least restrictive means of achieving the compelling
state interest. Thomas v. Review Board of the Indiana Employment Security Div'n,
450 U.S. 707, 718, 101 S. Ct. 1425, 1432, 67 L. Ed. 2d 624 (1981).
First Prong - Burden on Religious Beliefs
Only beliefs rooted in religion are entitled to first amendment protection. What
constitutes a "religious belief" is often a difficult issue, and does
not turn upon judicial perceptions of the particular belief or practice in question.
"Religious beliefs need not be acceptable, logical, consistent, or comprehensible
to others in order to merit First Amendment protection." Thomas v. Review Bd.
of Indiana Empt. Sec., 450 U.S. 707, 714, 101 S. Ct. 1425, 1430, 67 L.
Ed. 2d 624 (1981).
Nor does the Constitution distinguish between persons born to a faith and those
recently converted. As the Supreme Court recently stated in Hobbie v. Unemployment
Appeals Comm'n of Fla., 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190
(1987):
The First Amendment protects the free exercise rights of employees who adopt religious
beliefs or convert from one faith to another after they are hired. The timing of
[one's] conversion is immaterial to our determination that her free exercise rights
have been burdened; the salient inquiry under the Free Exercise Clause is the burden
involved.
Id. at 1051.
No one questions the sincerity of the plaintiff's religious beliefs, or disputes
that her ingestion of peyote is inextricably linked with her exercise of those beliefs.
Defendants also concede, for purposes of argument, that the acts of suspending and
terminating plaintiff's employment burdened her free exercise. This concession is
in accord with well-established Supreme Court precedent. See, e.g., Thomas v. Review
Board of Indiana Empt. Sec., 450 U.S. 707, 717-18, 101 S. Ct. 1425, 1432,
67 L. Ed. 2d 624 (1981)(where state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies such benefit because
of conduct mandated by religious belief, thereby putting substantial pressure on
an adherent to modify his behavior and to violate his beliefs, a burden upon religion
exists); and Sherbert v. Verner, 374 U.S. 398, 403-04, 83 S. Ct. 1790,
1793-94, 10 L. Ed. 2d 965 (1963)(where denial of unemployment benefits forces individual
to choose between following precepts of religion or forfeiting benefits, or abandoning
[*1178] precept in order to accept work, a clear burden upon free exercise
rights exists). And see Hobbie, 107 S. Ct. at 1048-52 (affirming decisions
in Thomas and Sherbert that State may not force an employee to
choose between following the precepts of religion and forcing benefits, and abandoning
precept in order to accept work).
Second Prong - Least Restrictive Means of Achieving Compelling State Interest
The burden now shifts to defendants to show that they have a compelling state interest.
Only those interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. Wisconsin v. Yoder,
406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1972).
Defendants argue that they have a compelling interest in the health, safety and
welfare of the citizens of North Dakota, and accordingly in curbing the use of controlled
substances by citizens. The state promotes this interest by providing preventive
alcohol and drug education services through the Department of Human Services.
This court has previously recognized the compelling nature of the government's interest
in controlling illegal drug usage.
United States v. Warner, 595 F. Supp. 595, 598-99 (D.N.D. 1984). This
court must now balance the respective burdens.
Least Restrictive Means
Sherbert and the cases following it require a comparison of two burdens:
the burden on the person seeking the benefit of being denied the benefit as the
price for observing his/her religion, and the burden on the government of extending
the benefit to that person. Menora v. Illinois High School Ass'n, 683 F.2d
1030, 1033 (7th Cir. 1982). "Free exercise of religion does not mean costless
exercise of religion, but the state may not make the exercise of religion unreasonably
costly." Id.
On July 16, 1984, the State suspended plaintiff without pay pending the outcome
of the criminal prosecution. On August 14, 1984, the State, finding that the period
of suspension (30 days) would expire prior to resolution of the criminal charges,
placed plaintiff on an indeterminate leave of absence.
The defendants were justifiably concerned with the continuing viability of the drug
and alcohol education program. [Footnote 2] The acts of suspension during the pendency
of criminal proceedings were reasonable under the circumstances, and constituted
the least restrictive means of furthering this interest.
On September 27, 1984, the State terminated plaintiff because of her admitted use
of peyote and the adverse effect this would have on her working relationships with
staff members and clients.
This termination was not the least restrictive means that defendants could have
employed, as is illustrated by her subsequent reinstatement to other duties, and
therefore violated plaintiff's first amendment free exercise rights. See Hobbie,
supra; Thomas, supra., and Sherbert, supra.
Plaintiff was reinstated by the State on February 6, 1986, after determinations
by the State Personnel Board. She received full back pay and benefits. At that point,
the initial constitutional violation ended, having satisfied the least restrictive
prong.
On February 11, 1985, plaintiff resigned when defendant refused to reinstate her
to her former duties. Plaintiff apparently argues that this refusal constituted
a [*1179] de facto termination prohibited by Thomas and
Sherbert. This court finds, however, that the defendant's refusal was appropriate
in light of its compelling interest in the continuing viability of its drug and
alcohol education program. This reinstatement to other duties was the least restrictive
means that the State could employ that would preserve plaintiff's religious freedom
while protecting its interest. The State did not violate plaintiff's free exercise
rights by refusing to reinstate her to her former duties.
Finally, the State argues that its suspension and termination of plaintiff was not
motivated by a disapproval of her religious practices, but resulted from her loss
of credibility through public knowledge and condemnation of her ingestion of peyote,
and her stated intention to continue partaking of this sacrament.
This court has no reason to doubt the State's motivations. Unfortunately, however,
subjective motivation is not a consideration in free exercise analysis. If this
court finds that the State has burdened plaintiff's free exercise of religion, and
that the State's interest does not outweigh the plaintiff's free exercise interest,
or the State's means of furthering its interest is not the least restrictive means,
then this court must find that the State has violated plaintiff's free exercise
rights guaranteed under the first amendment.
For example, in both Sherbert and Thomas the person's employment
was terminated because of the person's unwillingness to work on a particular day
(Sherbert, a Seventh Day Adventist, refused to work on Saturday), or to work in
a particular area (Thomas, a Jehovah's Witness, refused to work in the armaments
section of a foundry). In each case, the employer was not concerned with the employee's
religious beliefs or affiliation. The employer's concern was purely economic: someone
has to work on this day/in this area, or I will lose money.
In neither Sherbert nor Thomas did the employer's subjective motivations
enter into the Court's free exercise analysis. It is irrelevant to this court's
analysis now.
QUALIFIED IMMUNITY
Defendants argue that they are entitled to qualified immunity from damages because
the law regarding Indian religious rights was not clearly established at the time
of plaintiff's suspension and termination, and because their acts were the least
restrictive means of furthering their interest.
Plaintiff argues that the defendants either knew, or should have known, that suspending
and/or terminating plaintiff would violate her free exercise rights, and that they
should be held to a higher standard as lawyers, or ranking state officials that
had access to legal assistance.
In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982), the Supreme Court set out a wholly objective standard for determining entitlement
to qualified immunity. Under Harlow, government officials performing discretionary
functions were shielded from liability for civil damages "insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." 457 U.S. at 818, 102 S. Ct.
at 2738. Entitlement to qualified immunity depended on the "objective reasonableness
of an official's conduct, as measured by reference to clearly established law."
Id. The Court found that the district court should determine whether the
law was clearly established at the time an action occurred. "If the law at
that time was not clearly established, an official could not reasonably be expected
to anticipate subsequent legal developments, nor could he fairly be said to 'know'
that the law forbade conduct not previously identified as unlawful." Id.
The Court concluded that the public's interest in deterring unlawful conduct and
in compensating victims was protected by a test that focused on objective reasonableness:
Where an official could be expected to know that certain conduct would violate statutory
or constitutional rights, he should be made to hesitate; and a person who suffers
injury caused by such conduct may have a cause of action. But [*1180]
where an official's duties legitimately require action in which clearly established
rights are not implicated, the public interest may be better served by action taken
"with independence and without fear of consequences."
Id. at 819, 102 S. Ct. at 2739.
Only the objective reasonableness of the official's conduct may be considered; other
circumstances are not relevant to the issue of qualified immunity, including whether
the official had violated some other statute or regulation. Davis v. Scherer,
468 U.S. 183, 190, 104 S. Ct. 3012, 3017, 82 L. Ed. 2d 139 (1984)(officials sued
for violations of rights conferred by statute or regulation, like officials sued
for violation of constitutional rights, do not forfeit immunity by violating some
other statute or regulation). The Harlow objective reasonable test amply
protects "all but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1096, 89 L.
Ed. 2d 271 (1986).
The issue before this court is whether free exercise law with regard to the Native
American Church was clearly established at the time of plaintiff's termination.
In People v. Woody, 61 Cal. 2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964),
the Supreme Court of California recognized the Native American Church as an Indian
religious organization, and further recognized the sacred nature of peyote to members
of the Native American Church:
Although peyote serves as a sacramental symbol similar to bread and wine in certain
Christian churches, it is more than a sacrament. Peyote constitutes in itself an
object of worship; prayers are directed to it much as prayers are devoted to the
Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious.
Members of the church regard peyote also as a "teacher" because it induces
a feeling of brotherhood with other members; indeed, it enables the participant
to experience the Deity. Finally, devotees treat peyote as a "protector."
Much as a Catholic carries his medallion, an Indian G.I. often wears around his
neck a beautifully beaded pouch containing one large peyote button.
40 Cal.Rptr. at 74, 394 P.2d at 817-18. The court found that enforcing the statutory
prohibition of the use of peyote resulted in the virtual inhibition of religion.
"To forbid the use of peyote is to remove the theological heart of Peyotism."
Id. at ___, 394 P.2d at 818.
At the time of plaintiff's dismissal, at least four other state courts had recognized
the sacramental use of peyote as a protected religious practice under the free exercise
clause. See Native American Church of New York v. United States, 468 F.
Supp. 1247 (S.D.N.Y. 1979), aff'd, 633 F.2d 205 (2d Cir. 1980); Peyote
Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984); Whitehorn v. State,
561 P.2d 539, 544 (Okla. Crim. App. 1977); and State v. Whittingham, 19
Ariz. App. 27, 504 P.2d 950 (1973). Ten states had statutorily exempted the sacramental
use of peyote from their Controlled Substances Acts, including Arizona, Colorado,
Iowa, Kansas, Minnesota, Nevada, New Mexico, South Dakota, Wisconsin and Wyoming.
[Footnote 3]
Defendants should have suspected that the sacramental use of peyote was entitled
to some constitutional protection.
Defendants argue, however, that at the time of plaintiff's termination it was unclear
whether plaintiff could be a bona fide member of the Native American Church, and
therefore entitled to that exemption from criminal prosecution. Defendants seem
to assume that if plaintiff was not entitled to the exemption, she would not
[*1181] have a protected free exercise interest in the sacramental
use of peyote.
Defendant's argument is fallacious. Plaintiff's membership in the Native American
Church is not determinative of her free exercise rights, but merely bears on the
issue of the sincerity of her beliefs. As the district court pointed out in Native
American Church of New York v. United States, 468 F. Supp. at 1251, the
peyote exemption is not limited to members of the Native American Church. The legislative
history of the exemption indicated that only the Native American Church was exempted
at that time because it was the only existing religious organization that regarded
peyote as a deity:
As first passed by the House, H.R. 2 exempted the use of peyote "in connection
with the ceremonies of a bona fide religious organization" (emphasis added).
Congressman Harris expressed the understanding that H.R. 2 "cannot forbid bona
fide religious use of peyote." He had before him a letter sent in response
to his request for the position of the Food and Drug Administration in respect to
H.R. 2 as passed by the Senate with the peyote exemption deleted from the House
version of the bill. The Commissioner of Food and Drugs told Congressman Harris:
If the church is a bona fide religious organization that makes sacramental use of
peyote, then it would be our view that H.R. 2, even without the peyote exemption
which appears in the House-passed version, could not forbid bona fide religious
use of peyote. We believe that the constitutional guarantee of religious freedom
fully safeguards the rights of the organization and its communicants.
(111 Cong.Rec. 15977 (1965)).
468 F. Supp. at 1251. The district court concluded that the exemption for peyote
is equally available to all bona fide organizations that make use of peyote for
sacramental purposes and regard the drug as a deity. Id.
Nor is membership in an organization a requisite to constitutional protection. Religious
beliefs that are not shared by other members of a religious organization are equally
entitled to first amendment protection. As the Supreme Court stated in Thomas,
Intrafaith differences . . . are not uncommon among followers of a particular creed,
and the judicial process is singularly ill equipped to resolve such differences
in relation to the Religion Clauses. One can, of course, imagine an asserted claim
so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection
under the Free Exercise Clause . . . . The guarantee of free exercise is not limited
to beliefs which are shared by all of the members of a religious sect. Particularly
in this sensitive area, it is not within the judicial function and judicial competence
to inquire whether the petitioner or his fellow . . . more correctly perceived the
commands of their common faith. Courts are not arbiters of scriptural interpretation.
450 U.S. at 715-16, 101 S. Ct. at 1430-31. Also see Quaring v. Peterson,
728 F.2d 1121 (8th Cir. 1984)(Pentocostal who objected to driver's license photograph
had protected free exercise interest, even though no other members of her faith
believed that photographs were prohibited).
The sincerity of belief is the key inquiry in a first amendment free exercise case.
Where no one questions the sincerity of plaintiff's belief or the spiritual nature
of her practice of that belief, membership in a religious organization becomes largely
irrelevant.
This court finds that the defendants should have known that plaintiff's sacramental
ingestion of peyote was entitled to free exercise protection. Therefore, defendants
are not entitled to qualified immunity from civil liability for terminating her
employment, to the extent that they knew of plaintiff's religious claim.
DECLARATORY JUDGMENT
Plaintiff asks that this court declare the legal relationships between the parties
pursuant to 28 U.S.C. § 2201(a). Defendants [*1182] argue that
plaintiff is not entitled to declaratory judgment because there is no case or controversy
before the court as required by that statute, since plaintiff will not accept alternate
employment with the State.
Section 2201, Title 28, United States Code, provides:
In a case of actual controversy within its jurisdiction, . . . any court of the
United States, upon the filing of an appropriate pleading, may declare the rights
and other legal relations of any interested party seeking such declaration, whether
or not further relief is or could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C.S. § 2201(a) (Supp. 1986).
The purpose of a declaratory judgment is to provide prospective relief. White v.
Califano, 437 F. Supp. 543, 560 (D. S.D. 1977), aff'd, 581 F.2d
697 (8th Cir. 1978). Declaratory relief is appropriate only
(1) where the judgment will serve a useful purpose in clarifying and settling the
legal relations in issue; or (2) when it will terminate and afford relief from the
uncertainty, insecurity and controversy giving rise to the proceedings.
Id. (quoting Maryland Casualty Company v. Rosen, 445 F.2d 1012,
1014 (2d Cir. 1971)).
A federal court has no jurisdiction to enter a declaratory judgment unless there
exists an actual case or controversy between adverse parties in an adversary proceeding.
Vorbeck v. Schnicker, 660 F.2d 1260, 1265 (8th Cir. 1981).
"Basically, the question in each case is whether the facts alleged, under all
the circumstances show there is a substantial controversy between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance
of a declaratory judgment."
Id. (quoting Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct.
956, 959, 22 L. Ed. 2d 113 (1969). A specific injury must be impending, and differences
must be "ripe for determination:"
The disagreement must not be nebulous or contingent but must have taken on fixed
and final shape so that a court can see what legal issues it is deciding, what effect
its decision will have on the adversaries, and some useful purpose to be achieved
in deciding them.
Id. at 1266 (quoting Public Service Commission v. Wycoff Co.,
344 U.S. 237, 243-44, 73 S. Ct. 236, 240, 97 L. Ed. 291 (1952)).
This court finds that an actual case and controversy exists, and that declaratory
judgment is appropriate.
Based on the foregoing, it is the ORDER of this court
1. THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OF DISMISSAL IS DENIED.
2. THAT PLAINTIFF'S REQUEST FOR DECLARATORY JUDGMENT IS GRANTED. THIS COURT FINDS
THAT THE DEFENDANTS HAVE VIOLATED PLAINTIFF'S FIRST AMENDMENT FREE EXERCISE RIGHTS
BY REQUIRING THAT SHE CHOOSE BETWEEN EXERCISING HER RELIGIOUS BELIEFS AND LOSING
HER JOB, OR ABANDONING THE EXERCISE OF HER RELIGION AND KEEPING HER JOB. THIS COURT
FINDS THAT PLAINTIFF'S FREE EXERCISE RIGHTS WERE WELL-ESTABLISHED AT THE TIME OF
HER TERMINATION, AND THAT DEFENDANTS ARE THEREFORE NOT ENTITLED TO QUALIFIED IMMUNITY,
TO THE EXTENT THAT THEY KNEW OF PLAINTIFF'S RELIGIOUS CLAIMS. THIS COURT FURTHER
FINDS THAT DEFENDANTS' REINSTATEMENT OF PLAINTIFF ENDED THE CONSTITUTIONAL VIOLATION,
AND THAT DEFENDANTS ARE THEREFORE ONLY SUBJECT TO DAMAGES FOR THE PERIOD FROM PLAINTIFF'S
TERMINATION UNTIL HER REINSTATEMENT. THE COURT NOTES THAT PLAINTIFF HAS BEEN PAID
BACK SALARY FOR SUCH PERIOD. THE ISSUE OF REMAINING DAMAGES, IF ANY, IS RESERVED
FOR FUTURE DETERMINATIONS.
Dated this 15th day of May, 1987.