In re Garcia

• Decision Date: 11 June 2001
• Docket Number: No. 44769-6-I.,44769-6-I.
• Citation: 24 P.3d 1091,106 Wash.App. 625
• Parties: In re the Personal Restraint Petition of Ricardo GARCIA, Petitioner.
• Court: Washington Court of Appeals

24 P.3d 1091

106 Wash.App. 625

In re the Personal Restraint Petition of Ricardo GARCIA, Petitioner.

No. 44769-6-I.

Court of Appeals of Washington, Division 1.

June 11, 2001.

Thomas Kummerow, Seattle, for Appellant.

Ricardo Garcia, pro se.

Michael Ballnik, Asst. Atty. Gen., Olympia, for Respondent.

COX, J.

Ricardo Garcia seeks relief in this personal restraint petition (PRP) from the loss of good conduct time credits following two disciplinary hearings in which he was sanctioned for failure to participate in chemical dependency treatment classes. He also asks this court to bar his future attendance at such classes. Garcia primarily argues that the chemical dependency treatment program requires that he participate in Alcoholics Anonymous (AA) classes, which he contends include religious-based content that violates the Establishment Clause of the First Amendment. Because there are other classes available to Garcia that do not have religious-based content and that will fulfill the requirements of the treatment program, we deny the petition.

In 1994, Ricardo Garcia was sentenced to seven years and six months for a conviction of first degree rape. He is incarcerated at Airway Heights Corrections Center (AHCC). In November 1997, a Department of Corrections (DOC) chemical dependency counselor screened Garcia and found him chemically dependent. The counselor then recommended a course of treatment that required Garcia, among other things, to attend AA classes. That same month, Garcia consented, in writing, to enter DOC's treatment program, including attending "AA, NA, or CA meetings each week during the course of treatment as recommended by [Garcia's] case manager." Thereafter, the treatment program became a mandatory programming assignment for Garcia.

On March 12, 1998, Garcia refused to participate in the chemical dependency program orientation class. DOC sanctioned him with the loss of 20 days good conduct time credit.¹ The sanction was imposed under the authority of the Washington Administrative Code.² On April 8, Garcia was sanctioned with loss of an additional 40 days good conduct time credit for failure to participate in Moral Recognition Therapy (MRT), a part of the chemical dependency treatment program. Thereafter, it appears that Garcia no longer participated in the treatment program.

In 1999, Garcia sought readmittance to the chemical dependency treatment program. DOC returned Garcia to treatment, conditioned on his attendance at MRT classes and "AA/NA or another self-help group." Garcia refused to participate in AA classes, allegedly because of the religious-based content of such classes. It also appears that he refused to participate in other chemical dependency treatment classes.

Garcia seeks relief by this PRP, challenging his mandatory programming assignments for the chemical dependency treatment program. He also seeks restoration of the 60 days of good conduct time credit that he lost for refusing to comply with such assignments.

Establishment Clause

Garcia argues that DOC coerced his attendance at AA classes in violation of his rights under the Establishment Clause of the First Amendment to the U.S. Constitution. We hold that DOC did not coerce Garcia into attending such classes.

A preliminary issue is the proper standard of review that applies to this case. Generally, to prevail on a personal restraint petition, a petitioner must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a complete miscarriage of justice.³ Here, Garcia's PRP implicates a constitutional error because he alleges that DOC violated his First Amendment rights. But where, as here, the petitioner has had no previous or alternative avenue for obtaining state judicial review, he need only satisfy the requirements of RAP 16.4.⁴ Thus, to prevail in his PRP, Garcia need only show that he is restrained under RAP 16.4(b)⁵ and that the restraint is unlawful under RAP 16.4(c).⁶

Here, Garcia is confined so the "restraint" requirement is satisfied. The focus here then is on whether the condition of his restraint is unlawful.

More specifically, the question before us is whether DOC may, consistent with the Establishment Clause of the First Amendment to the United States Constitution, require an inmate to attend AA classes as part of chemical dependency treatment. We hold that mandating attendance at such classes does violate the Establishment Clause. But where, as here, alternative classes without religious-based content are provided, there is no constitutional violation.

The Establishment Clause guarantees that the "government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which `establishes a [state] religion or religious faith, or tends to do so.'"⁷ Several federal and state courts have held that requiring attendance at AA or AA-based programs violates the Establishment Clause of the First Amendment due to such programs' religious content.⁸

In Kerr v. Farrey,⁹ the Seventh Circuit Court of Appeals addressed whether a state correctional institution could require an inmate to attend a substance abuse program that allegedly included religious content. There, the specific requirement was for inmates with chemical dependency problems to observe Narcotics Anonymous ("NA") meetings as part of rehabilitation.¹⁰ NA was the only substance abuse program available to the inmates.¹¹ The penalty for not attending such programs was for the inmate to be rated a higher security risk and to suffer adverse effects for parole eligibility.¹²

The Kerr court first surveyed the Supreme Court's cases dealing with the Establishment Clause, dividing those cases into two broad categories. It characterized the first group of cases as the "outsider" cases, where the state seeks to impose religion on an unwilling subject.¹³ The second group of cases includes situations where existing religious groups seek some benefit from the state, or in which the state wishes to confer a benefit on such groups.¹⁴ The court then concluded that the case before it belonged in the former group of cases. From that principle, it derived a test from certain language in the U.S. Supreme Court's majority's opinion in Lee.¹⁵

The three-part test formulated by the Kerr court rests on answers to the following questions:

[F]irst, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religious or secular?[¹⁶]

The Kerr court concluded that the first prong of the test was satisfied since the prison authorities act for the State.¹⁷ The court also found that the second prong was met because Kerr was subject to penalties, such as classification to a higher security risk, if he refused to attend NA meetings.¹⁸ Finally, the court determined that the object of the coercion was religious because NA's twelve steps are based on the monotheistic idea of a single God.¹⁹

The test set forth in Kerr is applicable to the matter now before us. Here, both DOC and Garcia agree that the first prong of the test is met. DOC acts for the State in administering the chemical dependency treatment program. But the parties reach dramatically different conclusions when they apply the second and third parts of the test to this situation. The greatest difference between the positions of the parties is over the third prong of the test. Garcia contends that the object of the coercion is religious. DOC takes the position that Garcia cannot know whether the AA classes have religious content since he has never attended any. The State's position is not well-taken.

Here, Garcia attached to his petition a copy of AA's twelve steps from the AA Step Workbook used by participants in the AA classes offered by DOC. AA's twelve steps are almost identical to those of NA's outlined in Kerr.²⁰ And DOC does not dispute that the content of the AA classes at AHCC were organized around the twelve steps principle. As such, contrary to the State's claim, Garcia is in a position to demonstrate the alleged religious content of AA classes.

A plain reading of the AA twelve steps shows that they are premised on the idea of a monotheistic God.²¹ Like Kerr, the record before us does not present a situation where the only religious note was struck by incidental references to God such as the words "under God" in the Pledge of Allegiance.²² Rather, the record shows that the AA classes at AHCC are permeated with religion because the classes revolve around the twelve step manifesto. The record also shows that participants recite the Lord's Prayer and receive coins inscribed with the Serenity Prayer.²³ As such, we conclude that the object of the classes is religious.

Finally, Garcia claims that DOC coerced him to attend AA meetings by sanctioning him for his refusal to attend them. The State counters that Garcia was never sanctioned for his refusal to attend AA meetings because he was never required to attend them. Rather, the State claims that Garcia had a choice over the type of self-help class to attend in order to satisfy his chemical dependency treatment program requirement. The record supports the State.

First, as counsel correctly conceded at oral argument, the record shows that Garcia was never sanctioned for failing to attend AA classes. Rather, he was sanctioned for failure to attend chemical dependency treatment orientation and a MRT class, a component of his chemical dependency treatment program. As counsel candidly conceded in the brief, there is nothing in the record before us to substantiate whether MRT classes have any religious content. Likewise, we observe that that there is no indication in this record that the chemical dependency treatment orientation has a religious content.

Second, there was no Establishment Clause violation here because Garcia had a choice over the type of self-help class to attend in order to...