Wendell A. Humphrey v. Janis Lane

• Decision Date: 14 December 1998
• Docket Number: 98 CA 4,98-LW-5704
• Parties: WENDELL A. HUMPHREY, Plaintiff-Appellee v. JANIS LANE, et al., Defendants-Appellants Case
• Court: Ohio Court of Appeals

WENDELL A. HUMPHREY, Plaintiff-Appellee v. JANIS LANE, et al., Defendants-Appellants

No. 98 CA 4.

98-LW-5704 (4th)

Court of Appeals of Ohio, Fourth District Hocking

December 14, 1998

COUNSEL FOR APPELLANT: Betty D. Montgomery and Mary Beth Foley, 30 East Broad Street, 23rd Floor, Columbus, Ohio 43215-3428.

COUNSEL FOR APPELLEE: Kathleen M. Trafford and Constance M. Greaney 41 South High Street, 29th Floor, Columbus, Ohio 43215.

DECISION

ABELE J.

This is an appeal from a Hocking County Common Pleas Court judgment granting a permanent injunction preventing warden Janis Lane and Ohio Department of Rehabilitation and Correction Director Reginald A. Wilkinson, defendants below and appellants herein, from enforcing the Ohio Department of Rehabilitation and Correction's grooming policy against correction officer Wendell A. Humphrey, plaintiff below and appellee herein, and others similarly situated. Appellee asserted that enforcement of the employee grooming policy would violate his free exercise of religion as guaranteed by Section 7, Article I of the Ohio Constitution.^[1]

Appellants raise the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO ADOPT THE SMITH STANDARD WHICH THE OHIO SUPREME COURT HAS INDICATED IS THE APPROPRIATE STANDARD."

SECOND ASSIGNMENT OF ERROR:

"THE COURT ERRED IN NOT ADOPTING AN INTERMEDIATE STANDARD IN THE PRISON ENVIRONMENT."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THAT ODRC DID NOT USE THE LEAST RESTRICTIVE MEANS TEST."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AS THE INJUNCTION IS OVERBROAD."

Our review of the record reveals the following facts pertinent to the instant appeal. Appellee is a full-blooded Native American Indian of the Shoshone-Bannock tribe. In 1988 appellee became employed as a prison guard at Hocking Correctional Facility ("HCF"). At the time, appellee had short hair.

In 1990, appellee began "walking the path of Native American spirituality." Appellee continues to adhere to Native American beliefs, practices, and customs. Appellee is a "pipe carrier," a carrier of a "Chanupa"--a sacred pipe made from a red stone that is said to contain the blood of Indian ancestors. Appellee has participated in sweat lodges, sun dances, and chest piercing. Appellee believes that the creator recognizes him as a follower of the "red road," the Native American path, by having long hair. According to the "red road," a Native American's hair should only be cut when mourning for a person who has journeyed to the spirit world.

On January 14, 1997, Warden Janis Lane issued a memorandum directing all Ohio Department of Rehabilitation and correction ("ODRC") employees to conform with ODRC's grooming policy. The grooming policy required men to maintain their hair length at "collar length or shorter in the back." Appellee refused to comply with the grooming policy, claiming that to do so would violate the tenets of his faith. ODRC informed appellee that he could be terminated if he refused to comply with the grooming policy.

On May 28, 1997, appellee filed a complaint for declaratory and injunctive relief against Warden Lane and against Director Wilkinson. Appellee sought a declaration that Section IV.A.2 of the Employee Grooming Policy is unconstitutional as applied to appellant. Appellee further sought an injunction prohibiting appellants from disciplining appellee. Appellee claimed that the grooming policy violates appellee's "right of conscience" as guaranteed by Section 7, Article I of the Ohio constitution.^[3] Appellee requested the trial court to: (1) declare that enforcing the grooming policy against appellee violates appellee's right of conscience; (2) declare that the facility's selective enforcement of the grooming policy violates appellee's right of equal protection; (3) preliminarily enjoin appellants from taking disciplinary action against appellee; and (4) permanently enjoin appellants from disciplining appellee.

On May 8, 1997, appellee filed a motion, pursuant to Civ.R. 65(B), for a preliminary injunction and a memorandum in support. Appellee's motion sought to prohibit and enjoin appellants from disciplining appellee.

In his motion, appellee alleged that the sole issue is whether the corrections facility possesses a compelling state interest in requiring appellee to cut his hair and violate his religious beliefs.

At the June 6, 1997, hearing regarding the preliminary injunction, appellee testified as follows concerning why he grows his hair long:

"The religious belief that the creator has given us our hair and we are recognized to the creator and to our sweat lodges and our sundance and we--and there are times that we do cut our hair and one of the times is when we are in mourning for one of our people that made a journey to the spiritual world and with that we you will cut your hair when you are in mourning."

Appellee testified that some Native Americans do not have long hair. Appellee stated that they "do not walk the spirituality road." The "spirituality road" of the Native Americans is called the "red road." As appellee testified, the "red road"

"is a road that the Native American people have chosen to walk. It is a very sacred road and with this road we do a lot of things. I belong to the Mathowambli Society. The Mathowambli Society as founded by Frank Fuslski, who is a spirituality teacher of the Lacodasu (sic) and I get my teachings from him and with that I do not drink alcohol or I do not do drugs and that is one reason I belong to the society because we cannot teach our children the right way to walk if we do alcohol an drugs and I have done both of those in my earlier years * * *."

Appellee stated that it would be against his religious beliefs if he had to cut his hair.

At the hearing, appellants acknowledged that the concern "is not a safety issue of somebody grabbing after hair. It is the image projected to inmates." Appellants argued that the grooming regulation provides uniformity among the corrections officers and promotes the image of a "team." Warden Lane testified that corrections officers do not carry guns or batons to maintain order among the inmates. Rather, the officers maintain order and security through their presence, image, and communication skills.

Appellants also submitted the affidavits of Reginald

Wilkinson and Joseph Shaver, Chief of Labor Relations for the Ohio Department of Rehabilitation and Correction. In his

affidavit Wilkinson described the theory behind the grooming

policy as follows:

"[The grooming policy] is essential to the esprit de corps, image, discipline and security at these institutions. The purpose of the policy is to create a unified appearance among uniformed personnel, which personnel directly supervises and interacts with the inmate population. A uniform, professional image is essential to projecting an image of monolithic, indivisible authority to inmates from the uniformed prison staff. Such image is essential in order that inmates remain convinced that compliance with institutional authority is required. Staff can not [sic] project an image which suggests that they are susceptible to coercion or which makes them inappropriately accessible to inmates' influence. A uniform professional image makes it less likely that inmates would approach staff for the transfer of contraband, favors and like advantage. Such uniform appearance assists in identifying staff and differentiating them from the inmate population. Deviations from a uniform standard in appearance invite scrutiny of the individual by inmates, who look for character flaws to exploit. Staff must set an image for the inmates; inmates in the Department of Rehabilitation and Correction are also held to a similar grooming standard. Maintaining that continuity minimizes problems and inmate discipline issues."

In his affidavit, Shaver likewise stated:

"The purpose of the policy * * * is to create a unified appearance among uniformed personnel, which personnel directly supervises and interacts with the inmate population. A uniform, professional image is essential to projecting an image of monolithic, indivisible authority to inmates from the uniformed prison staff. Such image is essential in order that inmates remain convinced that resistance to institutional authority is futile. Staff cannot project an image which suggests that they are susceptible to coercion or which makes them inappropriately accessible to inmates' influence. A uniform professional image makes it less likely that inmates would approach staff for the transfer of contraband, favors and like assistance. A nonconformist appearance has in our experience invited undesirable scrutiny, manipulation and pressure from inmates seeking to extract inappropriate advantage from staff. * * *."

On June 11, 1997, the trial court granted a preliminary injunction. The trial found that appellee's religious "sincerity is beyond question." The court noted that when appellee wears his cap, one cannot tell that he has long hair. The trial court further found that appellee's hair does not appear ragged, unkept, or extreme.

The trial court found that some inmates possibly have seen appellee with his hair down while appellee was not on duty. The trial court also found that some inmates likely know that appellee wears his hair long as an expression of his Native American beliefs.

The trial court found that appellee's noncompliance with the grooming policy resulted "solely" from his adherence to his religious beliefs. The trial court noted that appellee's employment record failed to reveal other disciplinary problems. Thus, the trial court concluded that the grooming policy "substantially impinges upon [appelle...