Loney v. Scurr

• Decision Date: 18 July 1979
• Docket Number: Civ. No. 72-177-2.
• Citation: 474 F. Supp. 1186
• Parties: Robert LONEY, Plaintiff, v. David SCURR, Warden of the Iowa State Penitentiary, Rev. Sherbourne Ray, Protestant Chaplain, Iowa State Penitentiary, and Father Gerald Hoenig, Catholic Chaplain, Iowa State Penitentiary, Defendants.
• Court: U.S. District Court — Southern District of Iowa

474 F. Supp. 1186

Robert LONEY, Plaintiff, v. David SCURR, Warden of the Iowa State Penitentiary, Rev. Sherbourne Ray, Protestant Chaplain, Iowa State Penitentiary, and Father Gerald Hoenig, Catholic Chaplain, Iowa State Penitentiary, Defendants.

Civ. No. 72-177-2.

United States District Court, S. D. Iowa, C. D.

July 18, 1979.

Barbara A. Schwartz, counsel and Student Legal Interns Selwyn Dallyn, Cindy Lavorato, Jan Whitacre, Gary Van Cleve, Prisoners Assistance Clinic, Iowa City, Iowa, for plaintiff.

Stephen C. Robinson, Spec. Asst. Atty. Gen., Des Moines, Iowa, for defendants.

MEMORANDUM AND ORDER

HANSON, Senior District Judge.

This matter is before the Court pursuant to the remand of the United States Court of Appeals for the Eighth Circuit. A review of the lengthy substantive and procedural history of this case is in order.

On April 16, 1975 defendant prison officials filed a "Motion to Reopen and Vacate the Judgment and Dismiss Plaintiffs' Complaint." The motion was brought pursuant to Rule 60(b), F.R.Civ.P. and was directed at the judgment entered in Remmers v. Brewer, 361 F.Supp. 537 (S.D. Iowa 1973), aff'd per curiam, 494 F.2d 1277 (8th Cir.), cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974), in which this Court ruled that the Church of the New Song "is a religion within the ambit of the First Amendment," id. at 542. Remmers granted appropriate equitable relief entitling Church members to exercise their religion in the Iowa State Penitentiary. The Court overruled defendants' motion, as it had earlier overruled a petition by plaintiffs seeking to invoke the Court's contempt power for alleged failure of prison officials to comply with the Remmers decree. Remmers v. Brewer, 396 F.Supp. 145, 148 (S.D. Iowa 1975). Both plaintiffs and defendants appealed the Court's post-judgment rulings to the Eighth Circuit. The Circuit remanded the case for further proceedings. Remmers v. Brewers, 529 F.2d 656. To understand the issues further, it is necessary to revisit the Court's original findings and conclusions, affirmed by the Eighth Circuit, and the orders of this Court subsequent to the remand of post-judgment rulings.

1. The Judgment and Decree. This litigation concerns the attempts of former plaintiff Michael Remmers¹ and plaintiff Robert Loney to gain recognition for the Iowa State Penitentiary "purlieu" of the Church of the New Song (Church). Defendants, the former prison warden, Lou V. Brewer,² and prison chaplains Rev. Sherbourne Ray and Father Gerald Hoenig, have resisted recognition of the Church as a bona fide religion. The litigation was originally prompted by the refusal of prison administrators to accommodate plaintiffs' beliefs by affording Church members facilities and time to practice their religion. Plaintiffs thereupon brought this action pursuant to 42 U.S.C. § 1983 alleging, inter alia, a violation of their First Amendment right to exercise their religion and seeking various forms of injunctive relief. Plaintiffs' pro se complaint was filed seven years ago and in the interim the issues have been before this Court three times and the Eighth Circuit twice.

At the original trial the Court addressed three issues of mixed fact and law: (1) whether the Church of the New Song is a religion entitled to First Amendment protection; (2) whether plaintiffs possessed a "sincere and good faith belief in that creed"; and (3) whether the state had shown a compelling state interest sufficient under the circumstances to deny Church members "the same rights of assembly and worship" enjoyed by recognized faiths at the penitentiary. 361 F.Supp. at 542. The Court held first that the Church was a religion. The holding was predicated on the Court's conviction that great restraint should be exercised in fashioning a constitutional definition of "religion," together with the fact that "Eclatarianism," the pantheistic belief in an all-pervading, harmonizing spirit which is the focus of Church doctrine, "possesses many of the characteristics associated with traditional `recognized' religions." 361 F.Supp. at 540-41.

With respect to the issue of plaintiffs' sincerity, the Court observed that the State had not shown that plaintiffs' beliefs were insincere or fraudulent. In the face of plaintiffs' professed beliefs, the Court concluded "there is simply insufficient evidence to support the contention that plaintiffs' beliefs are not sincere and genuinely felt." 361 F.Supp. at 542.

Because the Church was a religion within the broad sweep of the First Amendment, and also because the sincerity of plaintiffs' commitment to the Church could not be objectively questioned, the Court proceeded to the third issue which implicated a balancing of the State's strong interest in the orderly administration of its prisons with the plaintiffs' First Amendment right to practice their religion. Plaintiffs have never sought an unrestricted right to pursue Eclatarianism, and have only requested an opportunity to "exercise their religion in the same degree as other inmates, Protestant and Catholic." 361 F.Supp. at 542. Prison administrators, however, have consistently insisted on complete non-recognition of the Church, an uncompromising alternative that would require some showing of a threat to the institution's vital interests. There was no evidence that the tenets of the Church counseled violence or defiance of authority, nor was there evidence linking Church activities to disturbances at the prison. Thus the prison's refusal to grant the Church privileges and facilities like those of recognized religious groups was predicated on "unsubstantiated anxieties." 361 F.Supp. at 542.

However, the Court was very aware of the real possibility savvy prison inmates might employ the First Amendment as a pretext to wring concessions and privileges from the prison administration in furtherance of objectives both nonreligious and inimical to penological interests. The Court therefore concluded with the following caveat:

The Court is well aware of the possibility that the Church of the New Song may be only a sham religion created to serve as a convenient vehicle for the presentation of political claims. But the as yet unsubstantiated anxieties of this Court cannot justify the possible suffocation of religious freedoms. If the Church of the New Song should prove to be a hoax and front that the state claim it is, that eventuality can be dealt with by both the prison administration and this Court. Nor should it be thought that by granting the Eclatarians religious rights the prison administration is laying itself open to uncontrollable hazards. The prison administration has a strong interest in seeing that the facilities and benefits enjoyed by the Church of the New Song are not abused or used for other than religious purposes. Meetings can be observed or mail monitored to see that this is the case. Given the power vested in prison authorities to take reasonable precautions to prevent potential abuses, any phoney believers should find their jest most unrewarding.

361 F.Supp. at 542-43.

2. The First Appeal. Plaintiffs and defendants appealed, the former on grounds not here pertinent. The Eighth Circuit held this Court's conclusion that the Church is a First Amendment religion was not clearly erroneous or contrary to law. 494 F.2d at 1278. With respect to the other two issues, the Circuit said:

Further there is insufficient evidence in this record to establish appellants' contention that appellees' beliefs are not sincere and genuinely felt. It also appears that appellees have not been allowed a fair and meaningful opportunity to freely exercise their religion in the same degree as other inmates, Protestant and Catholic. The district court's order requiring that this situation be corrected is affirmed.

Id. Certiorari was subsequently denied by the Supreme Court. 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286.

3. Defendants' "Petition to Reopen and Vacate Judgment and Dismiss Plaintiff's Complaint."

As noted, each side has filed a post-judgment motion, and the substance of neither has been resolved. Plaintiffs' "petition for rule to show cause why defendants should not be punished for contempt" still pends on remand from the Circuit and has abided resolution of plaintiffs' motion and resubmitted motion to "reopen and vacate judgment and dismiss plaintiffs' complaint." Plaintiff's motion has been the subject or proceedings since remand.

Defendants filed their original motion April 16, 1975, and an amendment on May 12, 1975. By order entered June 12, 1975, the Court overruled the motion. 396 F.Supp. at 148. Defendants appealed. Plaintiffs appealed from an earlier order declining to hold prison officials in contempt. The appeals were consolidated.

Defendants predicated their motion on the Court's caveat in its original memorandum that if in practice the Church should prove to be a "hoax and a front" for political or the prisoners' own private ends the Court was prepared to deal with the eventuality. Defendants also armed themselves with two district court cases involving the Church's founder, Harry W. Theriault (a federal penitentiary inmate), holding that the Church was not a religion and was primarily a political group. Theriault v. Silber, 391 F.Supp. 578 (W.D.Tex.1975), later vacated and remanded, 547 F.2d 1279 (5th Cir.) cert. denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977), on remand, 453 F.Supp. 254 (W.D.Tex.), appeal dismissed, 579 F.2d 302 (5th Cir. 1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 468 (1979); Theriault v. Establishment of Religion on Taxpayers' Money, CV. 70-186-D (E.D.Ill.1975). In overruling defendants' motion, the Court concluded that defendants' factual allegations and supporting material did not warrant reconsideration of the religion issue, call into question plaintiffs' sincerity, or indicate that the Church was a hoax as it operated at the Fort Madison penitentiary. The Court...