Malyon v. Pierce County

• Decision Date: 10 October 1995
• Docket Number: No. 17367-1-II,17367-1-II
• Citation: 903 P.2d 475,79 Wn.App. 452
• Parties: Harland MALYON, Appellant, v. PIERCE COUNTY, a Political Subdivision of the State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 452

79 Wn.App. 452

903 P.2d 475

Harland MALYON, Appellant, v. PIERCE COUNTY, a Political Subdivision of the State of Washington, Respondent.

No. 17367-1-II.

Court of Appeals of Washington Division 2.

Oct. 10, 1995.

Reconsideration Denied Nov. 3, 1995.

Dan Matthew Albertson, Albertson Law Offices, Tacoma, for American Civil Liberties Union of Washington Foundation.

Daniel Ray Hamilton, Deputy Pros. Atty., Tacoma, for respondent.

Steven Timothy McFarland, Annandale, VA, for amicus.

WIGGINS, Judge.

Plaintiff Harland Malyon asked the superior court to declare that the Pierce County Sheriff's Department chaplaincy program violates the establishment of religion clauses of the Washington State Constitution, article I, section 11 (section 11), and the First Amendment to the United States Constitution. Malyon also sought an injunction prohibiting the application of public funds or property to the chaplaincy program. The superior court granted Pierce County's motion for summary judgment of dismissal. Under the Washington State Constitution, we hold that the six neutral, non-exclusive factors identified in State v. Gunwall ¹ require interpretation of section 11 independent of the First Amendment. We hold that the Sheriff's Department chaplaincy program may be constitutional under section 11 because religious activities are conducted by unpaid volunteer chaplains. But we cannot determine from this record whether the program is religiously neutral, or whether it might support a religious establishment, and so reverse and remand for further proceedings. Under the First Amendment, we hold that the United States Supreme Court would not apply to this program the three-part test of Lemon v. Kurtzman. ² Instead of Lemon, we believe the Court would follow its more recent decisions, asking whether the program: has a secular purpose; is neutral to religious belief or unbelief; or, creates any real likelihood that the state endorses or coerces religious practices. We cannot determine from this record whether the program meets these three conditions, and reverse and remand to the trial court to make this determination.

FACTS

Prior to 1984, county deputy coroners and deputy sheriffs gave death notifications to the next of kin of deceased persons. Deputy sheriffs also provided crisis intervention to victims of violent crimes and to their families. Neither the coroners nor the sheriffs were trained to handle these responsibilities or to cope with the stresses of these tasks. Uniformed sheriff's deputies also suffered emotional and psychological problems caused by their daily exposure to violence and tragedy in performing their duties.

In 1984 the Pierce County Sheriff's Department (Sheriff's Department) contracted with an organization called the Tacoma Pierce County Chaplaincy (TPCC) to provide the following services to Sheriff's Department employees and to crime victims and their families:

a. 24 hour crisis intervention for PCSD deputies, corrections officers, and non-commissioned employees and their families as well as critical incident stress debriefing.

b. 24 hour crisis intervention and victim counseling for victims of violent crime and their families, as well as liaison duties between them and PCSD.

c. Death notifications, counseling and attendant procedures for PCSD employees and citizens.

The contracting organization, TPCC, is described as "a private non-profit and non-sectarian Christian Ministry made up of ministers or lay-ministers qualified in crisis intervention and holding beliefs as divergent as Catholics and Quakers, Lutherans and Assemblies of God." TPCC provides crisis intervention services for ten other public agencies in addition to the Sheriff's Department, including the Tacoma Fire and Police Departments, and the Washington State Patrol.

One full-time paid employee of TPCC, Dan Nolta, is designated as the Pierce County Sheriff's Chaplain, answerable to the sheriff. Nolta trains, coordinates and supervises volunteer chaplains who provide crisis intervention services on a twenty-four-hour basis to the Sheriff's Department and to the Office of the Medical Examiner. Seventeen volunteer chaplains in addition to Nolta served in the chaplaincy program from 1984 through 1990. Sixteen of the seventeen were affiliated with Christian denominations. Nolta requires that a volunteer chaplain be a pastor of a local congregation, "credentialed," willing to receive training, and able to relate to people in law enforcement and in crisis. Currently, all volunteer chaplains are from Christian churches because, according to Nolta's deposition, only a small minority would want a non-Christian chaplain, the current chaplains are a compatible group, and he views the chaplaincy as a "Christian ministry." Nolta stated in a later affidavit that he would accept any religious or secular counseling organization which was accepted by the Sheriff's Department, and "would expect them to work with the current chaplains on an equal footing."

Law enforcement chaplaincy programs are authorized by Washington statute. ³ Sheriff's Department chaplains serve under the terms of a broadly worded, annual, renewable contract, which recites that it is made pursuant to the statute. The chaplains agree to work under the direction of the sheriff at the request of Sheriff's Department personnel, and that they "shall use appropriate crisis intervention skills to meet the emotional, physical, and spiritual needs of those individuals involved, referring them to appropriate community resources." The chaplains agree to provide a volunteer service, and the agreement disclaims any employer/employee or master/servant relationship. Pierce County agrees to provide the equipment and supplies necessary to perform chaplain duties, a mileage allowance, accidental medical coverage, liability insurance coverage, and training and supervision. Nothing in the agreement refers to religion with the possible exception of the undertaking to meet the "spiritual needs" of the individuals counselled and each chaplain's agreement to operate under the policies and guidelines of the TPCC. Apparently each volunteer chaplain signs an agreement annually.

While this action was pending in the trial court, Pierce County issued a public request for proposal (RFP) for an organization to provide volunteer chaplaincy services, following the procedures established by Pierce County Code section 2.106.050 for solicitation of professional consultant contracts. The RFP seeks bids for "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." The RFP recited, "This 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." Nothing in the RFP refers to religion or religious services.

TPCC submitted the only proposal, and Pierce County entered into a personal services contract with TPCC in October 1991. The contract describes the scope of work as crisis intervention for law enforcement personnel and their families, crime victim counseling, death notification with attendant counseling, and critical incident stress debriefing. The contract makes clear that the services are provided by contractors, not employees, and that all work is without compensation. The contract incorporates Pierce County's affirmative action plan, and prohibits the contractor from discriminating against any employee or applicant for employment on the basis of race, sex, color, creed, age, national origin, or handicap. Other than the term "chaplaincy" and the prohibition against discrimination on the basis of creed, the contract says nothing about religion.

The volunteer chaplains complete reports on each counseling encounter. Some reports were included in this record, and demonstrate that the chaplains counsel a variety of people. Reports include counseling for: a rape victim; a married couple after the husband unsuccessfully attempted to commit suicide; the family of a suicide victim; police officers; the girlfriend of a man killed in a motorcycle accident; the parents of children drowned in a boating accident; the parents of a boy killed while driving to school; a widow who recently lost her husband; and a person who had recently attempted to commit suicide.

The record also includes the transcription of a promotional videotape which describes TPCC and includes the following testimonial examples of the chaplains' work:

Woman: My husband was a police officer and about a year ago he was killed in the line of duty. When they came to tell me that he had just died, I didn't know what to do or where to turn. I was so thankful that a police chaplain was there to help me.... They helped me deal with the news media and they helped me with all the funeral arrangements....

....

Principal: As principal of Spanaway Junior High School I wasn't at all prepared for what I discovered when I arrived at the school following the shooting. [A student had shot and killed two other students then committed suicide.] Kids and teachers were everywhere, crying and disoriented. Both the fire and police units were on the scene and media was there wanting more information. But fortunately, the chaplains of the Pierce County Chaplaincy were there ready to help in any way they could. They seemed to know just what to say to my students and staff and they helped me deal with the media and the emergency crews that were on the scene. In the days and weeks to follow, they continued to stand by everyone at Spanaway Junior High. They even organized a memorial service allowing the kids to come together to remember their friends....

....

Man: One day my...