Malyon v. Pierce County, 63664-8

Citation131 Wn.2d 779,935 P.2d 1272
Decision Date24 April 1997
Docket NumberNo. 63664-8,63664-8
CourtUnited States State Supreme Court of Washington
PartiesHarland MALYON, Appellant, v. PIERCE COUNTY, Respondent.

Page 779

131 Wn.2d 779
935 P.2d 1272
Harland MALYON, Appellant,
PIERCE COUNTY, Respondent.
No. 63664-8.
Supreme Court of Washington,
En Banc.
Argued June 26, 1996.
Decided April 24, 1997.

John Ladenburg, Pierce County Prosecutor, Daniel R. Hamilton, Deputy, Tacoma, for respondent.

[935 P.2d 1274]

Page 784

SANDERS, Justice.

Harland Malyon claims the Pierce County Sheriff's Department's chaplaincy program violates his religious freedom because it appropriates or applies public funds or property for religious purposes contrary to Washington Constitution article I, section 11 (amend.88) and/or establishes a religion contrary to the First Amendment of the United States Constitution. The trial court dismissed Malyon's claim on summary judgment. The Court of Appeals reversed and remanded with instructions to determine disputed facts. 1 We affirm the trial court's dismissal and reverse the Court of Appeals' remand, concluding disputed facts are not material.

Essentially the issue is whether a counseling program secular in purpose and on its face, but occasionally involving some consensual religious activity by unpaid volunteers, is a prohibited appropriation of public funds or property or establishes a state religion. We hold it does not violate the state constitution because the religious activities in question are not at public expense, and it does not violate the federal constitution because it is not an excessive religious entanglement.

While the state and federal texts differ substantially, both affirm the individual's right to free religious exercise while (or by) denouncing governmental involvement as a means to that end. These clauses are complementary, not contradictory. They promote the single purpose summarized by the very title of the state constitutional section at issue: religious freedom.

Mr. Malyon claims no special injury. Rather he asserts his tax dollars are expended for an unconstitutional purpose. We consider the question in complete agreement with Thomas Jefferson's warning "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical

Page 785

...." 2 while recalling "it was never the intention that our constitution should be construed in any manner indicating hostility toward any religion." 3 However, if Mr. Malyon's tax dollars have not been appropriated or used for a religious purpose, he has no cause for state constitutional complaint.

To properly protect Mr. Malyon's rights we must first carefully consider the facts in a manner most favorable to his claim as that is the summary judgment standard of review. 4 We therefore assume, for the purpose of this opinion, that one or more of these chaplains may have engaged in "religious worship, exercise or instruction" as those terms are used in article I, section 11 during the course of his or her activities. We disagree with the dissent, however, that such conduct by volunteers violates the rights of Mr. Malyon in any way. Our responsibility is not to purge religion from society; it is to protect each citizen's constitutional right to religious liberty.

Nor do we agree with the broad sweep of the dissent which goes beyond the constitutional text to disapprove of religious activity even when not a result of the appropriation of public money or property. Most fundamentally we disagree such an approach serves the purpose of religious freedom--which is, in the final analysis, to protect free [935 P.2d 1275]

Page 786

religious exercise, not prohibit or compel it. Verbos memini, si numero tenerem. 5

The dissent's claim that the conduct at issue "endorses" a religious establishment, even absent the use of funds, contrary to the First Amendment is considered, and rejected, in light of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971).


Since 1984 the Pierce County Sheriff's Department has used volunteer chaplains as counselors. However, no funds were or are appropriated to pay these volunteers. That is the singularly most important undisputed fact of all. The following year the state Legislature passed a statute explicitly authorizing the practice. 6 Therefore the constitutionality of this statute is also at issue.

The group currently providing the chaplains is the Tacoma-Pierce County Chaplaincy (TPCC), a nonprofit Christian ministry, headed by Dan Nolta. It is funded by church, business, and individual donors, not the government. Nolta requires TPCC members be credentialed pastors of a local congregation willing to receive training in law enforcement crisis counseling. Of the 15 volunteers, 14 are credentialed ministers of various Christian denominations. TPCC is not affiliated with or connected to any particular church or denomination.

While TPCC is a nondenominational Christian organization, the sheriff's program is facially secular. TPCC offers services to the sheriff's department pursuant to contract.

Page 787

In 1991, when the prior contract with TPCC expired, the sheriff's department openly requested bids from the general public to run the chaplaincy program. The request for bid proposals made no mention of religion, religious work, or religious qualifications. Instead, the request sought "the services of a volunteer organization with at least ten members qualified and available to serve the crisis intervention needs of the law enforcement personnel of Pierce County, their families, and the citizens of this county who are the victims of crime." Respondent's Clerk's Papers (RCP) at 68. The offering stated the "organization must be willing to work with no compensation, on a volunteer basis, the only exception being reimbursement for mileage, insurance coverage, loaned radios and office space for an appointed director to coordinate responses and programs." RCP at 70. TPCC submitted the only bid and executed a personal services contract.

Pursuant to contract, TPCC volunteers serve the sheriff's chaplaincy under the direction of the sheriff and are responsible solely to the sheriff and the director of the program. The volunteers do not serve as representatives of their respective denominations and are affirmatively prohibited from promoting their own denomination over any other. The record does not suggest they do so in practice. Further, the contract between the sheriff and TPCC expressly prohibits TPCC from discriminating against any of its employees or applicants on the basis of religion. Nolta has stated that if any other counseling organization, religious or not, offered its services and if such services were accepted by the sheriff's department, Nolta, as director of the sheriff's chaplaincy, would train, supervise, and work with it on an equal footing. There are no facts in the record to the contrary.

The chaplains' express duties further demonstrate the secular purpose of their work. They provide 24-hour death notification with attendant counseling for the sheriff's department[935 P.2d 1276] and the county coroner. For example, the record shows a chaplain rather than a police officer notified

Page 788

the parents of a boy who died in a car accident on the way to school.

The chaplain volunteers provide 24-hour crisis intervention counseling for victims of major crime as well. Sample beneficiaries of the counseling were a rape survivor and the family of a suicide victim. 7 The volunteers also help place people in shelters, notably victims of domestic abuse. While the majority of calls involve the public, the chaplains also conduct crisis intervention counseling for police officers and their family members. 8 The 15 chaplain volunteers serve on a 24-hour on-call basis without compensation.

It is uncertain from the record what portion of the private counseling is religious in nature. Nolta stresses

Page 789

that while TPCC is a Christian ministry, the sheriff's chaplaincy is not. According to Nolta, the chaplains generally perform nonreligious psychological counseling. Each volunteer chaplain is directed to use appropriate crisis intervention skills to meet the "emotional, physical and spiritual needs" of the community being served and to refer people to appropriate community resources as necessary. Indeed, Nolta describes what they do as 99 percent crisis intervention. Mark French, chief of law enforcement operations for the sheriff's department, states that the chaplain contacts he had witnessed had been "overwhelmingly secular" and involved no religious overtones.

However, some of the 900 reports filed by chaplains contain clearly religious references. For example, one report from 1987 reads: "Dealt with feelings of guilt and anger. She did not understand ... why God would take her child. She felt better after we talked things through." Appellant's Clerk's Papers (ACP) at 315.

The County suggests all modern-day counseling necessarily has a spiritual component to better serve religious citizens. The American Psychiatric Association guidelines state: "It is useful for clinicians to obtain information on the religious or ideologic orientation and beliefs of their patients so that they may properly attend to them in the course of treatment." RCP at 111.

While each chaplain volunteers his time, the County provides modest material support to accomplish the chaplaincy's secular purpose. [935 P.2d 1277] The County provides Nolta with an office in the sheriff department's west precinct. Nolta also has use of a 1984 Chevrolet Citation, a sheriff's jacket for identification purposes at crime and emergency scenes, a bulletproof vest, and a police radio. Such items are generally issued to uniformed personnel. The volunteer chaplains are loaned police radios to enable them to report to crisis scenes and some, but not all, have sheriff's jackets for identification purposes. Initially, chaplains were given mileage reimbursement for traveling to calls, but such reimbursement was discontinued several years


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