Choice of Support Groups: It’s the Law

1. Choice of Support Groups:It’s the Law Treatment Referral Practice in the Aftermath of Inouye v. Kemna

2. By Martin Nicolaus, M.A., J.D. Attorney at Law CEO of LifeRing Secular Recovery Author of: Recovery by Choice, Living and Enjoying Life Free of Alcohol and Drugs, a Workbook How Was Your Week? Bringing People Together in Recovery the LifeRing Way -- A Handbook. Empowering Your Sober Self: The LifeRing Approach to Addiction Recovery (Jossey-Bass, forthcoming April 2009)

3. Choice is the Law – Introduction (1) • Ricky Inouye, a resident of Honolulu, was addicted to methamphetamine and was convicted of possession and related drug crimes. • When he was released from prison, he became a client of Mark Nanamori, his parole officer.

4. Choice is the Law – Introduction (2) • Nanamori knew that Inouye was a Buddhist and had objected to participating in a “religion-based” treatment program while in prison. • Inouye had already filed a suit about the issue while in prison. (That suit ultimately settled.)

5. Choice is the Law – Introduction (3) • Nanamori also knew that Ricky continued to object to “religion-based” treatment after his release. • Ricky’s lawyer sent Nanamori a letter, which said:

6. Inouye’s Letter “Mr. Inouye is a Buddhist. As such, he objects on grounds of the Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution to any state imposed religious practice as a condition of his parole. Enclosed is a copy of the decision in Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996), which holds that the Alcoholics Anonymous 12 step program cannot be imposed by the state as a requirement for eligibility for parole. Mr. Inouye does not object to participating in a substance abuse treatment program. However, he does object to any program that has explicit religious content. This includes, but is not limited to, the recitation of prayers at meetings, whether or not Mr. Inouye is required to participate in the prayer. Please assure that there is no religious content in any substance abuse program that is imposed as a requirement of Mr. Inouye's parole.”

7. Choice is the Law – Introduction (4) • Despite this knowledge, Nanamori assigned Inouye to participate in a treatment program run by the Salvation Army. • The Salvation Army program requires attendance at meetings of Alcoholics Anonymous and/or Narcotics Anonymous.

8. Choice is the Law – Introduction (5) • Ricky attended a few sessions of the S.A. program and NA meetings and then stopped going. • Because Ricky did not comply with the program, Nanamori moved to revoke his parole. • Ricky was sent back to prison.

9. Choice is the Law – Introduction (6) • After Ricky was released, he filed a new lawsuit. • He sued Nanamori, Nanamori’s superiors, county officials, and the officer who arrested him (Kemna) for violating his constitutional rights.

10. Choice is the Law – Introduction (7) • His suit was based on 42 U.S.C. §1983, a federal law that provides for monetary damages to a plaintiff who proves a violation of his or her constitutional rights.

11. Choice is the Law – Introduction (8) • The specific constitutional right which he claimed was violated was the Establishment Clause of the First Amendment to the U.S. Constitution, which says:

12. Choice is the Law – Introduction (9) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thomas Jefferson

13. Choice is the Law – Introduction (10) • The case was heard in the federal district court in Honolulu. • Nanamori and the other defendants agreed that the 12-step program was “religious.” • They agreed that sending Ricky to 12-step groups may have violated his constitutional rights. • But:

14. Choice is the Law – Introduction (11) • Nanamori claimed that the law on this issue was unclear and unsettled, so that he should not be held liable for breaking it. • This is known as the defense of “qualified immunity,” available only to government officials. • In other words, “My mistake about the law was reasonable under the circumstances.”

15. Choice is the Law – Introduction (12) • The federal district court in Honolulu agreed with Nanamori. • Ricky lost at that level. • But Ricky appealed the case to the next higher level, the Ninth Circuit Court of Appeals in San Francisco.

16. Choice is the Law – Introduction (13) • On Sept. 7, 2007, the Ninth Circuit reversed the lower court’s decision and ruled in favor of Ricky. • Judge Marsha Berzon wrote the decision for a unanimous three-judge panel. • The official citation is Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007)

17. Focus on the Decision • Let’s take a closer look at the court’s decision in this case.

18. Inouye v. Kemna – Issues (1) • Because Nanamori admitted that “reverence for ‘a higher power’ is a substantial component of the AA/NA program,” the court spent very little time on the issue whether the AA/NA program was substantially “religious” in nature. Both sides agreed that it was.

19. Inouye v. Kemna – Issues (2) • Because Nanamori also admitted that “requiring a parolee to attend religion-based treatment programs violates the First Amendment,” the court also spent very little time on the constitutional issue. • It merely touched on the basics:

20. Inouye v. Kemna – Issues (3) • The court used a three-part test to determine whether Ricky Inouye’s constitutional rights had been violated: • Has the state acted? • Was there coercion? • Was the object of the coercion religious rather than secular?

21. Inouye v. Kemna – Issues (4) (1) Has the state acted? Answer: Yes. Nanamori was a state employee acting in his official capacity. (It doesn’t matter that the state didn’t run the treatment program or the support groups. It was enough that the state sent him there.)

22. Inouye v. Kemna – Issues (5) (2) Was there coercion? Answer: Yes. Ricky had to participate as a condition of his parole, and was jailed when he refused. (Under some circumstances, psychological or emotional coercion is sufficient to make out a violation.)

23. Inouye v. Kemna – Issues (6) (3) Was the object of the coercion religious rather than secular? Answer: Yes. Both sides agreed that the AA/NA program “is based in a higher power” and is “substantially based on religion.” (A little later, the court reviews prior case law on this issue.)

24. Inouye v. Kemna – Issues (7) • In sum, Nanamori “required Inouye to attend a program rooted in religious faith and then recommended revoking his parole because he refused to participate” – and this is clearly unconstitutional. • “For the government to coerce someone to participate in religious activities strikes at the core of the Establishment Clause of the First Amendment…”

25. Inouye v. Kemna – Issues (8) • Again: “While we in no way denigrate the fine work of AA/NA, attendance in their programs may not be coerced by the state. The Hobson's choice Nanamori offered Inouye — to be imprisoned or to renounce his own religious beliefs — offends the core of Establishment Clause jurisprudence.”

26. Inouye v. Kemna – Issues (9) • Having disposed of these preliminaries, the Court got down to the central issue in the case, whether the law on this point was clear and settled at the time of Nanamori’s actions, so that he reasonably should have known that sending Ricky to AA/NA was unconstitutional.

27. Inouye v. Kemna – Issues (10) • To resolve this question, the Court reviewed all the known prior decisions on this issue, and concluded: • “The vastly overwhelming weight of authority on the precise question in this case held at the time of Nanamori's actions that coercing participation in programs of this kind is unconstitutional.”

28. Choice is the Law: Prior Cases Review of Prior Cases

29. Choice is the Law: Prior Cases (1) • Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) • Requiring a state prisoner to attend a substance abuse counseling program with explicit religious content, on pain of being rated a higher security risk and losing eligibility for parole, violates the Establishment Clause. • In Kerr, the court spent considerable time deciding whether the 12-step program is “religious” for purposes of the Establishment Clause. It considered but rejected the argument that the program was “spiritual not religious.” It concluded:

30. Choice is the Law: Prior Cases (2)(Kerr, continued) “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. True, that God might be known as Allah to some, or YHWH to others, or the Holy Trinity to still others, but the twelve steps consistently refer to ‘God, as we understood Him.’ Even if we expanded the steps to include polytheistic ideals, or animistic philosophies, they are still fundamentally based on a religious concept of a Higher Power. Kerr alleged, furthermore, that the meetings were permeated with explicit religious content.”

31. Choice is the Law: Prior Cases (3) • Warner v. Orange Cty Dept of Probation, 115 F.3d 1068 (2nd Cir. 1997) • Probation officer who recommended to judge that DUI offender be required as part of his sentence to attend AA meetings, over offender’s religious objections, violated the First Amendment's Establishment Clause.

32. Choice is the Law: Prior Cases (4)(Warner, continued) • “[T]he program Warner was required to attend involved a substantial religious component. For example, the ‘Twelve Steps’ included instruction that participants should ‘believe that a Power greater than ourselves could restore us’; ‘[make] a decision to turn our will and our lives over to the care of God as we [understand] Him’; ‘[a]dmit[ ] to God ... the exact nature of our wrongs’; be ‘entirely ready to have God remove all these defects ... [and] ask Him to remove our shortcomings’; and ‘[seek] through prayer and meditation to improve our conscious contact with God, as we [understand] Him.’"

33. Choice is the Law: Prior Cases (5)(Warner, continued) • Also, as in Kerr, the court took note of the practice of opening and closing meetings with prayer: • “Group prayer was a common occurrence at the meetings Warner attended. They frequently began with a religious invocation, and always ended with a Christian prayer.”

34. Choice is the Law: Prior Cases (6)(Warner, continued) The court found that the AA meetings • “Had a substantial religious component” • Contained “religious exercises” • Were “religion-infused” • Were “intensely religious events.” • AA was “a long-term program of group therapy that repeatedly turned to religion as the basis of motivation.”

35. Choice is the Law: Prior Cases (7)(Warner, continued) And Warner was not given a choice: “Neither the probation recommendation, nor the court's sentence, offered Warner any choice among therapy programs. The probation department's policy, its recommendation, and its printed form all directly recommended A.A. therapy to the sentencing judge, without suggesting that the probationer might have any option to select another therapy program, free of religious content.”

36. Choice is the Law: Prior Cases (8)(Warner, continued) • The county probation department appealed the Second Circuit Court of Appeals decision in Warner to the U.S. Supreme Court. • The Supreme Court declined to hear the appeal.

37. Choice is the Law: Prior Cases (9)Preliminary Summary Thus the Ninth Circuit decision in Inouye joined in and followed the almost exactly identical decisions reached by the conservative 7th Circuit (Chicago) and the moderate 2nd Circuit (New York), and left undisturbed by the U.S. Supreme Court for more than ten years.

38. Choice is the Law: Prior Cases (10)Other Prior Cases in Lower Courts • Alexander v. Schenk, 118 F.Supp.2d 298, 301-02 (N.D.N.Y.2000) (probationer) • Warburton v. Underwood, 2 F.Supp.2d 306, 318 (W.D.N.Y.1998) (same); • Ross v. Keelings, 2 F.Supp.2d 810, 817-18 (E.D.Va.1998) (same); • Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478, 483-84 (Tenn.1997) (AA/NA imposition unconstitutional as a parole condition); • In the Matter of David Griffin v. Coughlin, 88 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996) (prisoner).

39. Choice is the Law: Prior Cases (11)Other Cases after 2001 • After reviewing these decisions that came out before Nanamori sent Ricky Inouye to AA/NA, the court wrote: • “We note that this march of unanimity has continued well past March, 2001, when Nanamori acted.” • The court cited the following newer cases:

40. Choice is the Law: Prior Cases (12)Cases after 2001 • Bausch v. Sumiec, 139 F.Supp.2d 1029, 1037, 1039 (E.D.Wis.2001). • Armstrong v. Beauclair, 2007 WL 1381790, 12-13 (slip op.) (D.Idaho Mar. 29, 2007) • Turner v. Hickman, 342 F.Supp.2d 887, 895-97 (E.D.Cal.2004) • Nusbaum v. Terrangi, 210 F.Supp.2d 784, 789-91 (E.D.Va.2002)

41. Choice is the Law: Prior Cases (13)Cases after 2001 • New cases decided after Inouye v. Kemna: • Hanas v. Inter-City Christian Outreach, __ F.Supp.2d __, E.D. Mich 2/29/08 (Drug court manager liable for coercing Catholic to attend faith-based program run by Protestants.) • Americans United v. Prison Fellowship, __ F.3d __ (8th Cir. 12/3/07) State funding of faith-based prison program unconstitutional.

42. Choice is the Law: Prior Cases (14)Bottom Line in Inouye • Bottom line: A reasonable person in Nanamori’s position should have known in 2001 already that coercing a parolee to attend AA/NA meetings was unconstitutional. • Therefore Nanamori does not have “qualified immunity.”

43. Choice is the Law: Prior Cases (15)Future of Inouye case • The Ninth Circuit sent the case back to Hawaii for further proceedings. • The case is set for trial this coming November. • The main issue remaining is the amount of $ damages to be awarded. • Ricky Inouye died while the appeal was pending, but his son Zenn continues with the case. • Even if the court awards Inouye only $1, the attorney is entitled to fees, probably in the tens of thousands. • No appeal to the U.S. Supreme Court was filed.

44. Choice is the Law: Prior Cases (15)Scope of Coverage States covered by the decisions to date:

45. Choice is the Law: What it Means • Now let’s look at what the Inouye case means for the addiction professional’s referral practice.

46. Choice is the Law: What it Means (1) • What it doesn’t mean: • The court did not say that AA is a “religion.” • “We do not hold that AA/NA is itself a religion. We hold only that … the AA/NA program involved here has such substantial religious components that governmentally compelled participation in it violated the Establishment Clause.” (fn 9)

47. Choice is the Law: What it Means (2) • What it doesn’t mean: • It does not mean that referral to AA/NA is forbidden. • The decision cites AA/NA for “fine work” – • But adds a lukewarm footnote 10: “The confidential nature of AA/NA treatment makes testing efficacy difficult. There is, however, some data to suggest that the programs, as part of a larger treatment strategy, have helped many people maintain their sobriety, at least for a period of time.”

48. Choice is the Law: What it Means (3) • What it doesn’t mean: • It isn’t necessary for the client to file a lawsuit or even write a letter before the law applies. • Nanamori should have known the law without Ricky Inouye’s prior lawsuit or the letter, but those documents undercut Nanamori’s protestations of reasonable confusion.

49. Choice is the Law: What it Means (4) What it does mean: • The decision applies to “state actors.” • Definitely: criminal justice officials at all levels • Definitely: Counselors in other government agencies (E.g. Prop 36 … State Bar … Medical Board?) • Probably: employees of private programs operated with substantial government funding • Definitely not: Private programs 100% privately funded

50. Choice is the Law: What it Means (5) • The essence of the law is choice. • What is forbidden is coercion. • “The Hobson's choice Nanamori offered Inouye — to be imprisoned or to renounce his own religious beliefs — offends the core of Establishment Clause jurisprudence.”