Duffy v. State Personnel Bd.

Decision Date09 July 1991
CourtCalifornia Court of Appeals Court of Appeals
PartiesFr. Daniel Patrick DUFFY, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, et al., Defendants and Respondents, CALIFORNIA CATHOLIC CONFERENCE, Real Party in Interest and Respondent. Civ. C006810.

James M. Mize, Law Office of James M. Mize, Sacramento, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Floyd Shimomura, Supervising Deputy Atty. Gen., and Ramon M. de la Guardia, Deputy Atty. Gen., for defendants and respondents.

Raymond J. Leonardini, Sacramento, for real party in interest and respondent.


DAVIS, Associated Justice.

In this case we determine whether the Department of Corrections can limit certain publicly paid chaplaincy positions to persons ordained, accredited by and in good standing with the Roman Catholic Church without violating the Establishment Clause, the Equal Protection Clause, or article I, sections 4, 7 and 8 of the California Constitution. We hold that it can.


The minimum qualifications established by respondent Board of Corrections for the position of Catholic Chaplain require that an applicant be an "[o]rdained priest, duly accredited by and in good standing with the Roman Catholic Church, and approved by the Bishop of the diocese in which the [correctional] institution is located." The State Personnel Board's description of the duties and functions of a Catholic Chaplain is as follows: "A Catholic Chaplain, under direction, gives spiritual and moral guidance to State Institution residents; conducts Roman Catholic religious services and instruction; interviews and counsels mental patients, juvenile or adult offenders, or Veterans Home members on ethical and moral problems and spiritual matters; celebrates Mass, administers the Sacraments, and conducts other Roman Catholic religious rites as needed by institution residents; organizes and instructs classes in Roman Catholic religion, ethics and sacred music; cooperates with other staff members in carrying out the institution treatment program; supervises the arranging of programs conducted in the institution by visiting religious and allied groups; assists in problems involving welfare agencies where family help is needed; visits the sick; works with residents in their group and club activities; counsels with families on problems involved in rehabilitation; explains and interprets the institution's religious program to community groups; serves, when designated, as a member of or consultant to the institution classification committee." [Emphasis added.]

In July 1984, appellant, Father Daniel Patrick Duffy, applied for the position of Catholic Chaplain at the Susanville prison facility. At the time he applied and was hired for this position, Father Duffy understood that the term "Catholic Chaplain" meant a Roman Catholic Chaplain. Father Duffy was appointed to the position of Catholic Chaplain on December 17, 1984. The Department then learned that the Roman Catholic Diocese of Sacramento would not issue a letter of authorization for Father Duffy's appointment because he was not a Roman Catholic priest in good standing. He was rejected from this position during his probationary period, on February 8, 1985. 1

Father Duffy had been ordained as an order priest in the Roman Catholic Church in 1967 and was suspended from the priesthood in 1968. He married in 1970, divorced and remarried in 1979. In 1981, Father Duffy received a certificate of ministry from the Federation of Christian Ministries which authorized him to function as a minister and/or priest. In August 1984, he joined a non-Roman Catholic Christian denomination, the Ecumenical Catholic Diocese of the Americas, and was granted faculties to practice as a priest of that denomination. At the time he was hired, Father Duffy was accredited by and in good standing with the Ecumenical Catholic Diocese of the Americas and was approved by its Bishop in the Susanville area.

At the time of Father Duffy's appointment, the prison facility at Susanville had been without a Roman Catholic Chaplain for approximately one year.

Father Duffy appealed his rejection. On September 3, 1985, the Administrative Law Judge (ALJ) for respondent State Personnel Board recommended that the rejection be set aside. The basis for this decision was that, while Father Duffy was not a Roman Catholic Chaplain, he was a Catholic Chaplain of another denomination and the appointment should not be limited to Roman Catholic Chaplains.

The State Personnel Board rejected the ALJ's proposed decision on September 16, 1985. After a hearing at which four Board members could not reach a decision, the case was reset for hearing before all five members of the Board. In early 1986, the Board granted requests to file amicus curiae briefs 2 and allowed various organizations to intervene as real parties in interest. 3 3 The case was remanded to the ALJ who unsuccessfully attempted settlement, then conducted further hearings on March 10, 11, 12, 13, 16 and 25, 1987.

The ALJ found that the "sole issue in this case is whether or not a competent religious leader working for the State as a chaplain can be terminated because he is not approved by a specific denomination." Concluding that he cannot, the ALJ recommended Father Duffy's reinstatement.

The Board again rejected the ALJ's decision. In its decision of February 9, 1988, affirming Father Duffy's rejection during probation, the Board declined to void or modify the duly-approved specifications which provide inmates with a Roman Catholic Chaplain.

On March 25, 1988, Father Duffy filed a petition for writ of mandate under Code of Civil Procedure section 1094.5 to compel the State Personnel Board to set aside its decision and to reinstate him to the position of Catholic Chaplain with back pay. The trial court denied the petition. On appeal, as he did in the trial court, Father Duffy contends that by funding a prison chaplaincy position which is limited to Roman Catholic priests in good standing with their diocese, the State violates the Establishment Clause, the Equal Protection Clause, and article I, sections 4, 7, and 8 of the California Constitution. 4 He requests reinstatement, back pay, costs and attorney's fees.


The Religion Clauses of the First Amendment provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, ..." These constitutional concepts of religious autonomy which assure both free exercise and nonestablishment apply to state as well as federal action through the incorporation of their principles into the Fourteenth Amendment due process clause. (Cantwell v. Connecticut (1940) 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 [applying the Free Exercise Clause to the states]; Everson v. Board of Education (1946) 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 [applying the Establishment Clause to the states].)

Prior to 1974, article I, section 4 of the California Constitution provided in pertinent part: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State...." As re-adopted by vote of the people on November 5, 1974 (in conjunction with its repeal as formerly worded), it now provides in part that "[f]ree exercise and enjoyment of religion without discrimination or preference are guaranteed.... The Legislature shall make no law respecting an establishment of religion." The electorate adopted language almost identical with that of the federal Establishment Clause. Nonetheless, article I, section 24 provides in pertinent part: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." When appropriate we may interpret rights set forth in our Constitution by a different standard than that applicable to similarly worded clauses in the federal Constitution so long as those rights extend equal or greater protection to those guaranteed by the federal Constitution. (Feminist Women's Health Center, Inc. v. Philobosian (1984) 157 Cal.App.3d 1076, 1086, 203 Cal.Rptr. 918.) Given the particular governmental practice at issue here, we find our analysis under the Establishment Clause equally applicable to our determination that article I, section 4 has not been transgressed.

In Lemon v. Kurtzman (1971) 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, the Court noted that the authors of the First Amendment not only prohibited the establishment of a state church or a state religion, but "commanded that there should be 'no law respecting an establishment of religion.' ... A given law might not establish a state religion but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment." (Emphasis in original.) (Id. at p. 612, 91 S.Ct. at p. 2111.) The Court employed a three-part test to determine if the questioned statute passes constitutional muster: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; [and] finally, the statute must not foster 'an excessive government entanglement with religion.' " (Id. at pp. 612-613, 91 S.Ct. at p. 2111.)

Although the Lemon test remains a useful analytical approach to resolving many Establishment Clause challenges to government action, (cf. Tilton v. Richardson (1971) 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790; Widmar v. Vincent (1981) 454 U.S. 263, 271-275, 102 S.Ct. 269, 275-277, 70 L.Ed.2d 440) 5 the Supreme Court has made clear that it is not the approach to be followed in all such cases. Soon after Lemon was decided the Supreme Court began describing the test as only a "guidelin...

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