Church of New Song v. Establishment of Religion on Taxpayers' Money in Federal Bureau of Prisons
| Decision Date | 13 May 1980 |
| Docket Number | No. 79-1649,79-1649 |
| Citation | 620 F.2d 648 |
| Parties | CHURCH OF the NEW SONG et al., Plaintiffs-Appellants, v. ESTABLISHMENT OF RELIGION ON TAXPAYERS' MONEY IN the FEDERAL BUREAU OF PRISONS et al., Defendants-Appellees. Dr. Harry W. THERIAULT, etc., et al., Plaintiffs-Appellants, v. ESTABLISHMENT OF RELIGION ON TAXPAYERS' MONEY IN the FEDERAL BUREAU OF PRISONS et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John S. Elson, Northwestern University Legal Clinic, Chicago, Ill., for plaintiffs-appellants.
James M. Cole, Dept. of Justice, Washington, D.C., for defendants-appellees.
Before CUMMINGS, SPRECHER and CUDAHY, Circuit Judges.
Plaintiffs object to the district court's dismissal of their First Amendment suit, arguing that the court impermissibly relied on the doctrine of res judicata. We find the dismissal proper and affirm the judgment below.
Harry W. Theriault, the founder and chief exponent of the Church of the New Song, is a federal prison inmate who has a protracted history of litigation in the federal courts concerning the exercise of his faith in prison. Indeed, it appears that almost all of the followers of his faith are prison inmates. On June 18, 1970, Theriault and a fellow inmate at the Atlanta, Georgia penitentiary filed suit against the Catholic and Protestant chaplains at that penitentiary for allegedly depriving them of their constitutional right freely to practice their religion. 1
Subsequent to filing suit in Georgia, Theriault was transferred to the federal penitentiary in Marion, Illinois. Shortly after the transfer, on September 30, 1970, he filed suit in the district court for the Eastern District of Illinois against a Protestant and a Catholic chaplain at Marion. As in the Georgia suit, he again alleged the violation of his First Amendment rights. 2
On March 17, 1971, Theriault filed another suit, this time in the district court for the District of Columbia. In his complaint he alleged generally the violation of prisoners' First Amendment rights throughout the federal prison system. The District of Columbia suit was transferred to the Eastern District of Illinois and consolidated with the suit pending against the Marion defendants.
On February 25, 1972, the district court for the Northern District of Georgia issued an opinion in the Atlanta case. Theriault v. Carlson (Theriault I), 339 F.Supp. 375 (N.D.Ga.1972). That court's findings of fact are particularly important to the disposition of the present appeal. In reaching its conclusion that the Church of the New Song was a religion entitled to First Amendment protections a conclusion which was ultimately reversed by the Fifth Circuit Court of Appeals, see Theriault v. Carlson, 495 F.2d 390 (5th Cir. 1974), the Theriault I court considered the testimony of some Marion officials:
Immediately after the petition was allowed filed in this court, Theriault was transferred to Marion which houses the most severe security risks in the federal system. Theriault now began to take his own religious claims seriously and attempted to explain them to the prisoners and staff at Marion. The Chief of Classification and Parole at Marion testified in this court that, at this point, Theriault's activities were truly religious in nature. Theriault approached the Protestant chaplain at Marion for permission to hold religious services for himself and his followers, but the request was denied because the chaplain felt the Church of the New Song was not "recognized." Theriault attempted to meet this objection by assuring the chaplain he would obtain an official church charter from the Universal Life Church, Inc., the mail-order organization which supplied Theriault with his "doctor of divinity" degree. The chaplain brought the matter to the attention of respondent Silber, and Rev. Silber testified in court that he upheld the decision of the Marion chaplain because the Church of the New Song and the Eclatarian faith were not "recognized." Theriault also wrote to respondent Carlson but received only a form response directing him to the institutional staff.
As Theriault continued his activities among the Marion prisoners, the staff began to suspect that he was actually organizing a radical political movement. One staff member filed a memorandum on the subject and urged that something be done to control Theriault's activities. Three days after the memorandum was filed, Theriault was placed in punitive segregation ("H-Unit") for failing to obey the order of a security officer to move. He was subsequently released and later cited for a minor violation and for threatening a security officer. On April 1, 1971 Theriault approached Mr. J. Culley, a correctional supervisor, and demanded a place to hold religious services. Culley discussed the matter with Theriault but refused to accede to his demand. Then, "as a preventive measure," Culley had Theriault placed in punitive segregation ("H-Unit"). Theriault remained in H-Unit from that night until he was transferred to Atlanta for the hearings before this court. The day Theriault was received back in Atlanta he was immediately placed in the segregation unit and he is still there today. The court finds as fact that the sole basis for the punitive segregation of Theriault was his demand to hold religious services.
Theriault v. Carlson (Theriault I), 339 F.Supp. 375, 378-80 (N.D.Ga.1972) (footnotes omitted).
A few days after the decision in Theriault I, Theriault was transferred to the federal penitentiary in LaTuna, Texas, where he was again subjected to intermittent segregative confinement because of his insistence, accompanied by physical violence, that he be allowed to use the prison chapel for services without prior approval from the prison chaplain. On August 17, 1972, Theriault filed a First Amendment suit in the District Court for the Western District of Texas, alleging more violations of his First Amendment rights. 3 That case, which has been labeled Theriault II, was dismissed by the district court on the same day it was filed.
In the meantime, before filing the Texas suit, on March 27, 1972, Theriault had again filed suit in the Northern District of Georgia, this time alleging violations by Atlanta officials of the order in Theriault I. On January 22, 1973, in what has been labeled Theriault III, the Georgia court found the defendants in that case in civil contempt for violating its earlier decision. Theriault v Carlson (Theriault III), 353 F.Supp. 1061 (N.D.Ga.1973).
The three Theriault decisions were appealed to the Fifth Circuit Court of Appeals. The appellate court reversed and set aside the Georgia court's contempt ruling in Theriault III, and remanded Theriault I and II for further evidentiary findings. Theriault v. Carlson, 495 F.2d 390 (5th Cir. 1974).
On remand, Theriault I and II were consolidated for hearing in the Western District of Texas. The Texas court found that the Church of the New Song was not a legitimate religion entitled to First Amendment protection, Theriault v. Silber (Theriault IV), 391 F.Supp. 578 (W.D.Tex.1975), but the Fifth Circuit again reversed and remanded for more complete findings. 547 F.2d 1279 (5th Cir. 1977).
On remand, in a decision rendered February 13, 1978, the Texas court incorporated by reference all of the findings made in Theriault IV, while making additional findings as required by the remand. Theriault v. Silber (Theriault V), 453 F.Supp. 254, 264 (W.D.Tex.1978). Of particular importance for this appeal is the statement by the court in Theriault IV that its decision was based on an examination of
all of the documents, testimony and records made of record in the instant case together with the evidence presented at the various hearings . . . .
Theriault IV, 391 F.Supp. at 581. The Theriault IV court specifically referred to Theriault's violent behavior at Marion as one of the facts developed in the prior hearings. Id. at 581. Based on the facts developed in all of the previous hearings involving the Church of the New Song including those facts concerning Theriault at Marion and an examination of the governing legal principles, the Theriault V court concluded that the Church of the New Song was not a legitimate religion entitled to First Amendment protection. 4 Theriault V, 453 F.Supp. at 265.
During the lengthy course of the litigation in the Fifth Circuit, the district court for the Eastern District of Illinois conducted an evidentiary hearing on the consolidated Marion suit. On April 4, 1975, the Illinois court dismissed the suit, holding that the Church of the New Song was not a religion. Almost four years later, on January 17, 1979, a panel of this court vacated the lower court's dismissal and remanded for further proceedings. The court stated:
The course and extent of further proceedings will depend upon the course of events in the actions in the Western District of Texas. We draw the district court's attention to the possibility that judgment in Texas may be res judicata or collateral estoppel.
Church of the New Song v. Establishment of Religion on Taxpayers' Money in the Federal Bureau of Prisons, No. 75-1684 (7th Cir. Jan. 17, 1979), 590 F.2d 337, memo. op. at 10-11. Pursuant to the remand, the district court concluded that the Texas judgment was determinative of all the issues before it under the doctrine of res judicata. Plaintiffs appealed.
We find it unnecessary to recite the details of plaintiffs' purported religion; instead, we will consider the arguments against application of res judicata.
Plaintiffs first argue that the district court should not have relied on res judicata because defendants did not raise it as an affirmative defense in the pleadings or in a pretrial motion. However, defendants did affirmatively raise the res judicata effect of the Fifth Circuit's decision in Theriault v. Carlson, 495 F.2d 390 (5th Cir. 1974), in their ...
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