August 8, 2008
EDWARD WALKER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2008
Before Judges Payne and Sapp-Peterson.
Edward Walker, a Roman Catholic of Irish ancestry, imprisoned at the Adult Diagnostic and Treatment Center (ADTC), has challenged various decisions and practices at the institution, principally, the provision of religious broadcasting supplied by the Three Angels Broadcasting Network (3ABN), a Seventh Day Adventist organization, on two channels of the ADTC's in-house cable network and the use of religious-themed materials in its sex offender treatment programs. Additionally he has challenged the denial by the ADTC of his request to hold a dinner honoring Catholic volunteers at the institution. Walker's challenges were rejected by the ADTC, and he has appealed.
On appeal, Walker presents the following arguments:
POINT I - Actions of DOC Serve to Establish
Religion in Violation of the Federal and State Constitutions.
A. State May Not Act With the Purpose or Effect of Advancing or Inhibiting Religion or in a Manner that Creates Government Entanglement with Religion.
B. Turner Test Either Inapplicable Or Subsumes the Establishment Clause Analysis.
C. DOC's Endorsement of a Particular Religious Sect Over Other Religions and Non-Religion Violates the Establishment Clause.
POINT II - State Action Complained of Violates the Equal Protection Clause of the State and Federal Constitution.
A. The Equal Protection Clause of the 14th Amendment of the Federal Constitution Bars State Actions That Favor One Religion Over Another or Religion Over Non-Religion.
B. Equal Protection, Under the New Jersey State Constitution, Bars State Actions That Favor One Religion Over Another or Religion Over Non-Religion.
POINT III - State Promotion of Seventh-day Adventism Including Material Insulting of and Inflammatory to Roman Catholics Violates the New Jersey Law Against Discrimination.
POINT IV - Actions of DOC Officials Denied Appellant His Right To Free Exercise of Religion Under the Free Exercise Clause.
A. DOC Actions Denying Accommodations to Catholic Practices Violates Free Exercise of Religion.
B. DOC Actions Denying Accommodations to Catholic Practices Violates RLUIPA.
The record reflects that, on November 24, 2004, Walker submitted an administrative remedy form (ARF) that contained a request that "the ADTC terminate all broadcasting of religious programming on Channels 10 & 14, cease the expenditure of state funds to operate and maintain the satellite dish used to capture the signal from 3ABN, remove this satellite dish from state property, cease all forms of endorsement of religious proselytizing in the treatment programs, and cease any reliance upon religious values, doctrines or beliefs in decisions affecting conditions of confinement at the ADTC." Walker claimed that the ADTC's practices violated the federal and state constitutions as well as state law. In support of the necessity of his requested remedy, Walker stated that on November 20, 2004, at approximately 11:30 a.m., he happened upon an hour-long program entitled "The Carter Report"*fn1 broadcast on the 3 Angels Broadcasting Network, "a proselytizing organ for Seventh Day Adventists," in which a person who identified himself as a "staunch Irish protestant from Northern Ireland" made numerous anti-catholic statements that included:
The supreme pontiff (Pope) is the anti-Christ.
The Catholic Church is the seed of Satan, uttering blasphemy against God, His Saints, and His true Church.
The Church of Rome is the Kingdom of the anti-Christ.
The Church of Rome martyred the saints, ruined the Church and ruined Christianity. It isn't good to be too Irish, especially Irish Catholic -- if you know what I mean.
Walker claimed to be offended by the broadcast, and stated further:
I am both Irish Catholic and a Roman Catholic. I am proud of my faith and my heritage. However, by funding, operating and maintaining this broadcast, not only has the DOC consigned me to the role of second class citizen as compared with the favored Seventh Day Adventists, but it has promoted a State established preference for a religious doctrine of hate that is extremely offensive to me, and which blatantly violates my constitutional rights.
Additionally, Walker complained of the religious content of therapy materials, which he characterized as an effort to inculcate inmates into a particular religious value system through mandatory indoctrination with religious oriented themes in therapy materials (including the "Facing the Shadows" workbook and anger management module materials which ask inmates to find spiritual/religious basis for both their behavior and their treatment) . . . .
In a handwritten administrative response to Walker's ARF as it related to the television broadcasts, the ADTC's chaplain, the Rev. Joseph Buzick, noted that other inmates had complained about the "one-sided, judgmental, divisive nature of the programming," and that an attempt had been made to tape the offensive material, but the attempt had been unsuccessful because the material was broadcast on an unpredictable schedule.*fn2
The chaplain recommended that "the T.V. dish in question be stopped and broadcast of these 2 religious programs end." He stated:
For people who are not strong in their own faith, messages that denigrate others' faith tends to cause an "us/them" mentality with a demonizing of other groups. If this is not hate messaging, it certainly is not inclusive and conveys the "I'm right and all others who differ are wrong" message.
Return of the technology to the donor was recommended.
Nonetheless, following Walker's request for formal administrative review, Rev. Buzick responded on December 20, 2004: "Be advised that the viewing of these channels is an option. Only these channels may or may not be viewed as any inmate who may choose." No response was made at that time to Walker's complaints regarding the religious content of therapeutic materials.
Because he had never received a formal administrative response to his ARF, on March 7, 2005, Walker submitted a second ARF in which he again complained about the Seventh-day Adventist channels and the promotion of religion in the ADTC treatment program materials. Finally, on March 29, 2005, a response was provided by the Administrator of the facility, Grace Rodgers, which stated in relevant part:
The satellite dish you refer to had been donated to the institution without cost or obligation. This donation was accepted with the understanding that no one particular person would be forced to watch the programming offered by it. Although the program schedules are unpredictable in terms of specific content, one could argue that many broadcast shows are similar in terms of presenting a particular viewpoint. Since the audience is not forced to watch or listen to the program, I do not find this to be proselytizing. The ability for others to view these programs, is not an endorsement of the religious beliefs rather an endorsement for the freedom of speech.
The ADTC operations and Treatment Programs are not influenced by any religious belief or value system. The conditions of confinement are based on basic humanitarian and security concerns.
Unfortunately you appear to have been insulted by previous programs and I would recommend that you not tune your personal television to those channels. As your opinion on this matter is tolerated, you must demonstrate a tolerance towards the beliefs of others.
Later that year, in June 2005, Walker requested authorization to hold the Third Annual Catholic Recognition dinner on January 31, 2006 "to recognize the contributions of time and talent by persons from within and without the Catholic Congregation." That request was denied, and in response to Walker's ARF regarding the denial, in which he alleged that two other religious organizations were permitted to hold such events,*fn3 Rodgers stated:
The Catholic Recognition Dinner was denied as the Administration officially recognizes all volunteers with an annual banquet and appreciation certificates from the inmate population as well as from the Administration. Previous dinner approvals were given with the understanding that there was a religious element and reason for the dinner.
Walker has appealed from both final administrative decisions.
The State has moved to dismiss that portion of Walker's appeal that concerns the religious content of therapeutic materials, claiming for the first time on appeal that the issue is "moot" because Walker has either successfully completed the programs of which he now complains or he was never enrolled in them. In response, Walker has moved pursuant to Rule 2:5-5 to supplement the record, in part, with the Inmate Handbook for the ADTC, which demonstrates that the religiously-based materials offered in Phase I of treatment form the foundation for the four-phase treatment process, and thus are of continuing relevance and effect.
We grant Walker's motion insofar as it seeks inclusion in the record of the Inmate Handbook as the result of its relevance to the Establishment Clause arguments that form the core of Walker's appeal. We characterize the State's "mootness" argument as addressing standing, and conclude in that regard that Walker has raised judiciable issues regarding the treatment modules that "are of substantial importance and are capable of repetition, yet evade review" that require our consideration. Standing thus exists. Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998) (citing Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996); Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 118-10 (1990); and In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104-05 (1988)). Although we recognize that Walker has not been required to undergo substance abuse treatment, we find that he has standing as a taxpayer to extend his religious-based challenge to that treatment module as well. Flast v. Cohen, 392 U.S. 83, 103-04, 88 S.Ct. 1942, 1954-55, 20 L.Ed. 2d 947, 963-64 (1968).
Our review of the record supplied by Walker in connection with his challenge to treatment materials unquestionably confirms their religious content. For instance, the Personal Journal, utilized in connection with the ADTC's twelve-step substance abuse program, requires a commitment of the participant's will and life "to the care of God," although that expression is qualified by the phrase "as we understood Him." It requires "prayer and meditation to improve [the participant's] conscious contact with God as we understood Him" and a "spiritual awakening" as the result of completion of the twelve mandated steps. In contrast, the ADTC's sex offender treatment program Level I workbook, "Facing the Shadows," counsels in Chapter 5 against "religious addiction." But an Anger Management Module handout requires an acknowledgment of original sin, stating:
Loneliness is as ancient as humanity's sinful nature. . . . Ultimately, we feel lonely because sin causes us to be estranged from God and thus inhibited from fully knowing and experiencing contentment.
In Chapters 4 and 7 we explored how control and pride began with Adam's fall into sin. . . .
It can be fun to picture what life must have been like for Adam and Eve prior to sin. Created in God's image and unstained by imperfection at that point, we can assume they knew no lonely feelings. Instead, they were filled with godly qualities like love, joy, peace and patience. . . .
But sin changed all that.
On appeal, Walker claims that mandatory use of materials such as these violate the Establishment Clauses of the Federal Constitution, which requires that state action have a secular legislative purpose, that its principal or primary effect be one that neither advances nor inhibits religion, and that it not foster an excessive governmental entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed. 2d 745, 756 (1971). See also McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed. 2d 729 (2005) (upholding the validity of the Lemon test); Agostini v. Felton, 521 U.S. 203, 232-33, 117 S.Ct. 1997, 2015, 138 L.Ed. 2d 391, 420 (1997) (explaining the third prong of the Lemon test essentially as a component of the second, rather than as independent); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed. 2d 844, 858 (1963) (emphasizing necessity of a secular legislative purpose and a primary effect that neither advances nor inhibits religion).*fn4
Unfortunately, no findings were made at the administrative level with respect to compliance by the Department of Corrections with Establishment Clause precepts in this connection, and no argument is made by the State on appeal, reliance having been placed instead solely on the concept of mootness, or as we characterize it, standing. In this regard, precedent indicates that, at the very least, the Establishment Clause prohibits a state from mandating an inmate's participation in a treatment program grounded in religious beliefs contrary to those to which he subscribes, under threat of penalty and in the absence of a suitable alternative program, thereby both diminishing the inmate's chances for release and frustrating his rehabilitation. See, e.g., Inouye v. Kemna, 504 F.3d 705, 712-16 (9th Cir. 2007) (finding it "essentially uncontested" that requiring parolee to attend religiously-based treatment program violates the First Amendment); Warner v. Orange Cty. Dept. of Probation, 115 F.3d 1068, 1074-77 (2d Cir. 1997) (finding requirement that probationer attend Alcoholics Anonymous as a condition of probation, without offering a non-religious alternative treatment, violated the Establishment Clause); Kerr v. Farrey, 95 F.3d 472, 476-80 (7th Cir. 1996) (requiring inmate to attend religiously-based narcotics rehabilitation meetings or be rated a higher security risk and suffer parole consequences violated Establishment Clause); Griffin v. Coughlin, 673 N.E.2d 98, 105-08 (N.Y. 1996), cert. denied, 519 U.S. 1054, 117 S.Ct. 681, 136 L.Ed. 2d 607 (1997) (family prison visitation could not be conditioned on participation in a treatment program that adopted the "religious oriented practices and precepts of Alcoholics Anonymous").
In the present case, it is not clear to us whether an inmate's participation in the religiously-based treatment modules is mandatory, whether alternatives exist, and what consequences flow from failure to participate in the programs that have a religious content, including the likelihood of a lengthened term at the ADTC or civil commitment upon release. Rogers has certified in connection with the substance abuse program:
Inmates at ADTC who have been found to have a substance abuse problem, but refuse to attend the Facility's substance abuse programs, as may be available, will receive one point on their Minnesota Sex Offender Screening Tool - Revised ("MnSOST-R") for failing to obtain substance abuse treatment. Notably the MnSOST-R is a tool for predicting certain types of sex offenders' level of risk of recidivism upon release from incarceration. This tool is just one factor that might be set forth in the clinical certificate of a psychiatrist or other physician justifying a recommendation that a person be civilly committed under the SVPA [Sexually Violent Predator Act]. . . . Moreover, the Facility offers, but does not monitor, participate in, or otherwise have involvement for inmate classification purposes, alternative programs run by private entities, such as Alcoholics Anonymous and Narcotics Anonymous. Additionally, the Facility offers an inmate- run support group, the Substance Abuse Support Group.
Rogers's certification does not describe the content of these alternative substance abuse programs, their availability, or the degree to which they can be substituted for the ADTC's program. Her certification is silent with respect to the other program materials, except to say that they are provided under contract with the University of Medicine and Dentistry of New Jersey. However, the Department of Corrections cannot absolve itself of its constitutional obligations to the inmates through contracts with other parties or entities. J.D.A. v. N.J. Dept. of Corr., 189 N.J. 413 (2007).
In order to obtain a record sufficient to evaluate Walker's arguments, we therefore remand this matter, pursuant to Rule 2:5-5, and require its supplementation as we have specified.
Walker's challenge to the ADTC's acceptance of a satellite dish from the Seventh-day Adventists and its broadcast of that denomination's religious programming on two of the cable television channels available to inmates must be analyzed in a different fashion, because Walker has conceded that viewing of the channels in question is voluntary. Moreover, in this context, the ADTC is not constitutionally forbidden from devoting any of its resources to religious activity or materials. Instead, it is constitutionally required as the result of the Constitution's Free Exercise Clause to provide all inmates with "reasonable opportunities . . . to exercise the religious freedom guaranteed by the First and Fourteenth amendments." DeHart v. Horn, 227 F.3d 47, 60 (3d Cir. 2000) (quoting Cruz v. Beto, 405 U.S. 319, 322 n.2, 92 S.Ct. 1079, 1081 n.2, 31 L.Ed. 2d 263, 268 n.2 (1972)).
Nor is the ADTC required to seek out religious programming equally from every religious sect represented in its inmate population. See Henderson v. Frank, 190 Fed. Appx. 507, 509-10 (7th Cir. 2006) (noting that the Constitution "does not require prisons to provide identical worship opportunities for every religious sect or group") (citing Cruz, supra, 405 U.S. at 322 n.2, 92 S.Ct. at 1081 n.2, 31 L.Ed. 2d 268 n.2)). Although the Establishment Clause generally prohibits the state from favoring one religion over another or religion over non-religion, the Constitution does not forbid the state from providing inmates access to religious programming directed to adherents of or prospective converts to some sects, even to the incidental exclusion of such programming directed to those of other sects, so long as alternative, non-religious programming is available, and none of the inmates is coerced to view the religious content. Ibid. See also Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 985 (8th Cir) (although not all sects represented among religious programs selectively broadcast on channel accessible to inmates, finding "no evidence that [the prison] exclusively promotes or favors any one particular religion in its programming"), cert. denied, 432 U.S. 991, 125 S.Ct. 501, 160 L.Ed. 2d 378 (2004).
Nonetheless, a review of the record in this case discloses, at best, a pro forma effort on the part of the ADTC to comply with discovery demands, to which we ordered a response, that required the production of documents with respect to the gift of the satellite dish, its installation at the facility, its maintenance, and costs incurred in connection with the satellite connection. We require a further, more exhaustive, review for evidence relating to the gift and its installation at the facility, finding it inconceivable that no records with respect to the satellite network exist.
Additionally, in light of publicly-available materials suggesting a strong bias on the part of Seventh-day Adventists against other faiths and the acknowledged complaints of inmates in addition to Walker regarding the content of 3ABN telecasts, we also require that a representative sample of said telecasts be recorded and reviewed by ADTC staff, and that a determination be made whether the content is such that it is inimical to prison discipline and goals of rehabilitation. The content of other inmate's complaints would also be relevant in this regard.
We also require a further explication of the proportion of television programming devoted to 3ABN telecasts, the proportion of programming focusing on other religious beliefs, and an explanation of how an inmate obtains television access and whether a decision by an individual to switch channels can be countermanded by another inmate.
We require that upon resubmission to us, additional briefing focused on the issues raised in the opinion and the various legal theories presented by Walker will be provided by both the State and by Walker, to the extent that his initial brief requires supplementation.
We affirm the denial of Walker's request to hold a separate recognition dinner in honor of Catholic volunteers as rationally related to a legitimate penological interest in security and order. Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 2578, 165 L.Ed. 2d 697, 705 (2006); Turner v. Safley, 482 U.S. 78, 89-91 107 S.Ct. 2254, 2262, 96 L.Ed. 2d 64, 79-80 (1987); see also Pryor v. Dept. of Corr., 395 N.J. Super. 471, 482-84 (App. Div. 2007), certif. denied, 194 N.J. 442 (2008). In accordance with Turner, there must be a valid rational connection between the prison regulation and the legitimate governmental interest justifying it and alternate means of exercising the right that remain open to the inmate. Additionally, the impact of the accommodation of the asserted constitutional right on guards and other inmates and on the allocation of prison resources in general must be considered, as well as whether there are ready alternatives for furthering the governmental interest.
In the present case, Walker's request was denied because the banquet he envisioned duplicated one already given by the institution. Rogers stated in this regard:
Holding a single annual dinner to honor all prison volunteers at one time avoids the necessity of having a large number of volunteer celebrations on behalf of various prison groups at different times of the year, including the need for additional security at each separate dinner and the increased number of food packages entering the prison.
We find the restriction, thus explained, to be rationally and reasonably connected to a legitimate governmental interest in consolidating events honoring volunteers, thereby decreasing the need for additional guards and security measures. Moreover, denial of the opportunity to hold the banquet does not foreclose Walker from seeking authorization for a more generically-themed Catholic celebration, nor does it otherwise impinge upon his free exercise of religion. We thus see no constitutional infirmity in the ADTC's action.
Affirmed in part and remanded for further proceedings in light of this opinion, in which Walker is authorized to participate to the extent feasible. The remand shall be completed within 90 days of the issuance of this opinion. Upon submission to the Clerk of the Appellate Division of an expanded record, as specified, a further briefing schedule will be set. Jurisdiction is retained.