Dod Vs Defendant Contractors - Which One is More Effective?

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1 Filing # E-Filed 05/08/ :16:12 PM IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA CENTER FOR INQUIRY, INC., RICHARD HULL and ELAINE HULL, Plaintiffs, v. Case No CA-1358 MICHAEL D. CREWS, in his official capacity as the Secretary of Corrections of Florida; PRISONERS OF CHRIST, INC., a Florida corporation; and LAMB OF GOD MINISTRIES, INC., a Florida corporation, Defendants. / PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Plaintiffs, Center for Inquiry, Inc. ( CFI ), Richard Hull, and Elaine Hull, pursuant to Florida Rule of Civil Procedure 1.510, move for summary judgment on all of Plaintiffs claims. The pleadings and other matters of record establish that there are no genuine issues of material fact and Plaintiffs are entitled to a judgment as a matter of law declaring that (1) the payments from state funds made by Michael D. Crews, in his official capacity as the Secretary of Florida Department of Corrections ( DOC ), to Lamb of God Ministries, Inc. and Prisoners of Christ, Inc. (collectively, the Defendant Contractors ) under their respective contracts are unconstitutional violations of article I, section 3 of the Florida Constitution; and (2) sections and , Florida Statutes, are unconstitutional to the extent they authorize those payments. Additionally, this Court should grant injunctive and supplementary relief as necessary to terminate the contracts between DOC and Defendant Contractors and to enjoin any future illegal payments. In support of this motion, Plaintiffs state as follows.

2 PROCEDURAL BACKGROUND A. The Initial Proceedings In The Trial And Appellate Courts. In 2008, Plaintiffs sued DOC and Defendant Contractors seeking to prohibit DOC from using state funds pursuant to sections and , Florida Statutes, to support Defendant Contractors faith-based substance abuse transitional housing programs. In Count I of their complaint, Plaintiffs alleged that the state s payments to these faith-based organizations violated the no-aid provision of the Florida Constitution, which prohibits any revenue to be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. Art. I, 3, Fla. Const. In Count II, Plaintiffs challenged the constitutionality of sections and to the extent they allowed DOC to enter into these contracts with Defendant Contractors. 1 DOC and Defendant Contractors moved for judgment on the pleadings, asserting that Plaintiffs lacked standing to bring their claims. They further asserted that the statutes, and the contracts awarded pursuant to those statutes, did not violate article I, section 3. Regarding Count I, Defendants asserted that the First District s decision in Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004) which held that article I, section 3 prohibited state funds from being paid to sectarian schools under the Opportunity Scholarship Program applied only to the school context. Defendants further asserted that the contracts were constitutional because the statutes direct DOC to consider faith-based service groups on an equal basis with other private organizations and were therefore merely expressing nondiscrimination policies. This Court agreed and granted judgment on the pleadings as to Count I. 1 Plaintiffs also raised a third count, challenging the state s delegation of government authority to chaplains under section (6)(a). The First District held Plaintiffs did not have standing to raise that issue, and it is consequently irrelevant here. 2

3 As to Count II of the initial complaint, Defendants contended that Plaintiffs did not have standing to challenge DOC s authority to enter into contracts with Defendant Contractors. This Court agreed and granted judgment on the pleadings as to Count II. Plaintiffs appealed. With respect to Count I, Plaintiffs asserted that Bush v. Holmes was not limited to the school context and the trial court erred in ruling the payments made under the contracts constitutional because it applied an Establishment Clause analysis, not an analysis under the no-aid provision in article I, section 3. The First District agreed and, in doing so, established important principles relevant to this case on remand. See Council for Secular Humanism v. McNeil, 44 So. 3d 112 (Fla. 1st DCA 2010) ( CSH ). First, the court held that nothing in article I, section 3 limits its application to the school context. In contrast, it broadly prohibits the use of public funds in aid of any church, sect, or religious denomination or in aid of any sectarian institution. The First District also made clear that the no-aid clause is far stricter than the Establishment Clause and draws a more stringent line regarding the payment of state funds to sectarian organizations than the United States Constitution. CSH, 44 So. 3d at 119 (citing Witters v. Wash. Dep t of Servs. for the Blind, 474 U.S. 481 (1986)). An inquiry under the noaid clause requires courts to consider matters such as: Id. at 120. (1) Whether the government-funded program is used to promote the religion of the provider; (2) Whether the program is significantly sectarian in nature; (3) Whether the program involves religious indoctrination; (4) Whether the program requires participation in religious ritual, or (5) Whether the program encourages the preference of one religion over another. 3

4 As to Count II, the First District held that to the extent that Count II challenges [DOC s] authority to enter into the contracts and the performance of those contracts by the ministries,... taxpayer standing is not present. Id. at 122 (emphasis added). The court found taxpayer standing was established as to Count I. Id. The First District thus reversed the trial court s order as to Count I and affirmed as to Count II. The Florida Supreme Court denied Defendants request for review. B. The Present Proceeding. The case returned to this Court on remand. Because of the time that passed during the appeal, the contracts with DOC at issue in the first proceeding had expired and DOC entered into new contracts with Defendant Contractors. Those changes were addressed in a Second Amended Complaint, which is the operative pleading. DOC and Defendant Contractors challenged the sufficiency of the Second Amended Complaint through motions to dismiss and strike. Among other things, they argued that the action should be dismissed for lack of standing and because the terms and language about which the Plaintiffs complained, and which formed the basis of their claims in this case, are not present in the current 2012 contracts. Contractors Motion to Dismiss, at 2. Plaintiffs responded that Count I challenges the payments made to Defendant Contractors under the new contracts because public funds are still being used in aid of sectarian purposes. Furthermore, it is the services actually provided by Defendant Contractors that are at issue, not how those services are described in the new contracts. Plaintiffs also explained that Count II does not challenge DOC s authority to enter into contracts under sections and , which the First District held they did not have standing to do. Rather, that Count requests ancillary relief necessary to prevent future illegal 4

5 payments. This Court denied the Defendants motions and joined together both Counts of the Second Amended Complaint [b]ecause Count II of the Amended Complaint seeks injunctive relief based on the same allegations raised in Count I, and therefore will [be treated] as a request for additional, ancillary relief to that sought in Count I. Plaintiffs now move for summary judgment on all claims because the undisputed facts demonstrate state funds are being given directly in aid of pervasively sectarian institutions in contravention of article I, section 3. STATEMENT OF UNDISPUTED FACTS A. Defendant Lamb of God Ministries. Through its Articles of Incorporation, Lamb of God Ministries makes its purpose explicit it exists to proclaim God s truth, to administer the ordinances, to stimulate growth toward maturity, and to bring glory to God. See Am. 4 to Art. of Inc. of Lamb of God Ministries (App:104). 2 A 2006 amendment to the ministry s original Articles of Incorporation affirm[ed] our confidence in God s inerrant word, acknowledge[d] the Creator God as our Heavenly Father, and claim[ed] Jesus Christ as our Lord. Id. Membership in Lamb of God Ministries is indicated by an individual s attendance of gatherings, devotion to the Ministries work, and belief in the essentials of our Faith,... Id. The name Lamb of God comes from the Bible, and in Christian circles would be Jesus Christ. Deposition of James Fugate ( Fugate Dep. ) 14:20 22, Apr. 2, 2014 (App:17). The ministry provides faith-based recovery programs to men with substance and alcohol abuse problems, and each participant s program is tailored to his specific needs, utilizing the latest 2 The documents contained in the Appendix to this motion are consecutively paginated using Bates numbers. Citations to the Appendix are thus referred to as (App:Bates number). 5

6 proven methods of cognitive behavior therapy and 12-step work from a biblical perspective. About the Program, Lamb of God Recovery Centers, (last visited May 1, 2015) (emphasis added) (App:1120). 3 The ministry supplies participants with either the first or fourth edition of the Big Book of Alcoholics Anonymous ( Big Book ). Fugate Dep. 34:4 16 (App:37). The Alcoholics Anonymous ( AA ) process includes the 12-step system and advises recovering persons to, among other things: [Make] a decision to turn our will and our lives over to the care of God as we understood Him. [Be] entirely ready to have God remove all these defects of character. [Seek] through prayer and meditation to improve our conscious contact with God, as we understood Him, praying only for knowledge of His will for us and the power to carry that out. Hav[e] had a spiritual awakening as the result of these Steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs. The Twelve Steps of Alcoholics Anonymous, Alcoholics Anonymous, (last visited May 1, 2015). Lamb of God s curriculum also includes other sources from which its counselors impart information to a client, Fugate Dep. 33:10 34:16 (App:36-37), including: Our AA Legacy to the Faith Community, a Twelve-Step Guide for Those Who Want to Believe, Journey to Freedom, which utilizes spiritual principles based on the grace of God to help clients overcome the bondage of addictions and form a new sense of identity, Grace Walk, which helps us to learn to stop living by rules and to allow God s grace to rule us, and Genesis Process, which provides both a Biblically and neuro-chemical 3 Under Florida Rule of Civil Procedure 1.510(c), a movant may rely on materials as would be admissible in evidence. (emphasis added). The Defendant Contractors websites and materials on the websites are maintained by the Defendant Contractors and constitute admissions of party opponents. Accordingly, they would be admissible in evidence. 6

7 understanding of what is broken that causes us to be self destructive. About the Program, supra (App:1120); The Genesis Process, (last visited May 1, 2015). Journey to Freedom is Lamb of God s own proprietary, faith-based program, and DOC is aware that Lamb of God uses Journey to Freedom. Deposition of Arnia Perpignand ( Perpignand Dep. ) 53:11-54:9, 54:22-55:2, Apr. 2, 2014 (App:991-92). Our AA Legacy is based on both the Big Book and the Bible. See Our AA Legacy to the Faith Community at 7 (Dick B ed., 2005) (App:271). It comingles passages from the Big Book, selected Bible verses, and religious suggestions from the authors and editors. See generally id. For example, it teaches: If you are willing to believe in a god, pick the one that is living. Pick an alive God. For Jesus, the son of God, taught:... You are mistaken, not understanding the scriptures or the power of God... have you not read what was spoken to you by God, saying, I am the God of Abraham, and the God of Isaac, and the God of Jacob? He is not the God of the dead but of the living. (Matthew 22:29 32) Id. at 18 (App:282). At lectures or group sharing sessions, ministry leaders pull topics from AA Legacy to guide discussions. Fugate Dep. 36:1-5 (App:39). Grace Walk is authored by Dr. Steve McVey and illustrates the foundational, biblical truths of who believers are in Jesus Christ and how they can let Him live His life through them each day. See Grace Walk, Grace Walk Resources, (last visited May 1, 2015). Lamb of God s CEO and President, James Fugate, is an ordained pastor who was certified through the Liberty University School of Lifelong Learning. Fugate Dep. 10:14 11:21 (App:13-14). He is also a disciple of Dr. Steve McVey of GraceWalk Ministries. Leadership, Lamb of God Recovery Centers, (last visited May 1, 7

8 2015) (App:1121). In his time at Lamb of God, beginning in 2009, the ministry s organizational approach has remained the same, and there have been no big shifts in philosophy, services, or the way the program is administered. Fugate Dep. 31:14 32:6 (App:34-35). In addition to his income, Fugate receives a pastoral allowance of $500 per week. Fugate Dep. 20:9 21:5 (App:23-24). This allowance, provided only to minister[s] of the gospel, allows Fugate to deduct from his gross income any rental allowance paid to him as part of his compensation. 26 U.S.C It is not available to all religious leaders. Rather, it is given only those whose duties are central to the religious mission of an organization, such as the performance of sacerdotal functions, the conduct of religious worship... and the performance of teaching... duties at theological seminaries. 26 C.F.R (a) (2002). In his deposition, Fugate stated that while he did not view Lamb of God as a church in a traditional sense, his heart says [it s] a church because he minister[s] there. Fugate Dep. 70:11 12, 71:6 20 (App:73-74). Fugate provides a Christian chapel service every Sunday that is voluntary, but well attended by participants in the program. Id. at 39:15 40:25 (App:42-43). Fugate states that it is not necessary for Lamb of God to describe the recovery methods as Biblical in order to use Biblical methods. In describing how Lamb of God is able to provide recovery from a faith-based, non-religious approach utilizing Biblical principles, he explains that [y]ou can teach a biblical principle to a person that does not understand they re being taught that biblical principle. Fugate Dep. 32:11 18 (App:35). Lamb of God maintains a website, which greets visitors with a video titled the Journey 2 Freedom Begins Here. The video opens with one word: FAITH. See Lamb of God Recovery Centers, (last visited May 1, 2015) (App:1122). The website proclaims that Lamb of God is a proven leader in licensed faith-based recovery. About the 8

9 Program, supra (App:1120). On the site, a visitor can take a photo tour of the Lamb of God Pompano Beach campus, which includes an on-site chapel featuring an altar, a cross, and physical depictions of Jesus Christ. See The Campuses, Lamb of God Recovery Centers (last visited May 1, 2015) (App: ). The photo tour also shows a picture of a room in the facility, which includes a painting of Jesus Christ carrying the cross. Id. (App: ). Lamb of God is a tax exempt 501(c)(3) organization based on its religious and charitable purposes. Fugate Dep. 23:4 15 (App:26). In its application for tax-exempt status, it listed the organization as a church. (App:1540). The ministry generates all of its revenue from its recovery programs, and approximately a third of the revenue is generated by payments it receives under its contracts with the DOC. Fugate Dep. at 53:12 54:1 (App:56-57). Lamb of God maintains a single checking account into which all of its funds are deposited including the payments received from the DOC and from which all organizational expenses are paid. Id. at 59:13 60:10 (App:62-63). It does not attempt to segregate any funds, nor does it attempt to identify how DOC funds are spent. Id. B. Defendant Prisoners of Christ. Prisoners mission is to provide Christian ministry and financial assistance to men released from prison. Deposition of J. Stephen McCoy ( McCoy Dep. ) 54:16 20, Mar. 7, 2014 (App:423). The self-described ministry provides faith-based re-entry services designed to assist men coming out of prison through their transition back into civilian life. What We Do, Prisoners of Christ, (last visited May 1, 2015) (App:1151). Prisoners helps its participants develop a strong relationship with God. About Us, 9

10 Prisoners of Christ, (last visited May 1, 2015) (App:1153). The ministry believes that Christian faith is essential to the prevention of recidivism. McCoy Dep. 25:18 27:12 (App:394-96). Indeed, it is this belief that makes Prisoners of Christ different from other ex-offender re-entry programs. Prisoners January 2014 Newsletter, available at News, Prisoners of Christ, (at top of page) (last visited May 1, 2015) (App:1162). Prisoners is a tax exempt 501(c)(3) organization, McCoy Dep. 31:15 25 (App:400), and describes itself as a faith-based ministry on its Form 990. Prisoners Form 990, (App:855, 876, 900). Additionally, it pays no property tax on its facilities, which are classified as churches by the Duval County Property Appraiser. See Certified Copies of Duval County Property Appraiser Records (classifying Prisoners properties as 7100 Church ) (App: ). The Duval County property appraiser records include notes describing various Prisoners properties as a church owned for residential use, considered a ministries (sic) and house used as church. Id. Prisoners Executive Director, J. Stephen McCoy, has a bachelor s degree in divinity, a master s degree in divinity, and a doctoral degree in divinity. McCoy Dep. 9:7 11 (App:378). Before joining Prisoners, he served as a pastor for thirty-five years. Id. at 9:23 10:11. (App:378-79). McCoy has found that a Bible-based foundation helps Prisoners participants transition back into society. Id. at 27:13 28:11 (App:396-97). To that end, Prisoners recently implemented a 5-day intensive orientation program for each client that will include a foundational Bible class. Id.; see also Prisoners January 2014 Newsletter, supra (App:1162). The class will provide instruction from the Bible [on] areas like anger management, financial management, family, relationships, that kind of thing. Id. at 27:21 25 (App:396). 10

11 Prisoners website features a Bible verse, Ecclesiastes 4:10, at the top of the home page. Home, Prisoners of Christ, (last visited May 1, 2015) (App:1157). Additionally, the home page features a video entitled Choices, in which Prisoners Re-Entry Director, Greg Seymour, says that only Christ can transform a man, and in which McCoy says Prisoners provides spiritual guidance. Id. (App:1158). A participant notes in the video that his relationship with Christ has gotten deeper and stronger. Id. Another thanks Prisoners for providing me with a model of Christianity that I may be able to live out on the streets that I didn t know before. Id. Prisoners periodically produces newsletters, which can also be found on its website. In its December 2013 newsletter, McCoy offers a Christmas devotional featuring Bible verses from the books of John and Luke. Prisoners December 2013 Newsletter, at News, supra (App:1164). In that devotional, McCoy describes Prisoners goals: It is our goal at Prisoners of Christ to help each of our clients to open their hearts to Jesus in a greater way, to behold Him as their friend that sticks closer than a brother.... We seek to show them God s nature while they are in our care. In its January 2014 Newsletter, Prisoners proclaims that it is poised to become the leading faith-based prisoner re-entry organization in the region. Prisoners January 2014 Newsletter, supra (App:1161). Elsewhere, Prisoners Board of Directors member Michael Hallet quotes a Bible verse, Ephesians 4:15. Id. In another section of that newsletter titled A Ministry of Transformation, Prisoners case manager, Frank Monster Pilgrim, states that [t]he men who join our program are amazing Christians who remain devoted to their relationships with Jesus Christ despite the challenges they face. Id. (App:1162). In the July 2014 Newsletter, an intern for Prisoners quotes from the Bible and proclaims that [Prisoners] is transforming lives and shaping God s own people into a holy nation. 11

12 Prisoners July 2014 Newsletter, at News, supra (App:1159). Prisoners currently provides an AA 12-Step program. McCoy Dep. 36:12 14 (App:405). Prisoners residents are required to attend and participate in the scheduled 12-step substance abuse program. See Prisoners Rental Agreement, 16 (App:932); Prisoners Resident Agreement and Orientation, 6 (App:935). The AA meetings are held at St. John s Lutheran Church in Jacksonville. McCoy Dep. 38:10-17 (App:407). Prisoners encourages participants to attend weekly prayer meetings. While these meetings are not mandatory, McCoy describes them as a part of the ministry s program. Id. at 40:1 24 (App:409). Although he has not attended such a prayer meeting, McCoy is sure that they feature Christian prayer. Id. Additionally, Prisoners holds bi-monthly community meetings, also at St. John s Church, at which McCoy sometimes delivers a Bible message. Id. at 43:4 44:1 (App:412-13). In addition to AA, Prisoners has used other programs, including Celebrate Recovery and Walking the 12 Steps with Jesus Christ. See McCoy Dep. 36:20 39:10 (App:405-08). Celebrate Recovery is a biblical and balanced program designed to help participants overcome hurts, habits, and hang-ups. See John Baker, Stepping Out of Denial Into God s Grace: Participant s Guide 1, at 7 (App:482). The principles of Celebrate Recovery, which is based on the Beatitudes, include earnestly believing that God exists, consciously choosing to commit one s life and will to Christ, and reserving daily time for Bible reading and Prayer. Id. at 11 (App:485). Principle 8 directs a participant to yield to God to be used to bring this Good News to others, both by my example and by my words. Id. Walking the 12 Steps with Jesus Christ is a Christian, Bible-based Study Guide for use in recovery from addiction to drugs, alcohol or other out-of-control habits. Walking the 12 Steps with Jesus Christ. (App:530). The guide attempts to provide the huge missing link in the 12

13 way that most AA type programs are practiced.... the Higher Power of Jesus Christ. Id. at 1. (App:535). This program modifies the 12 steps used in AA so that, among other things, the steps explicitly reference Jesus Christ. See id. at a (App:534). While these materials are no longer used by Prisoners, McCoy made clear that the major thrust of Prisoners program has not changed. See McCoy Dep. 69:1 70:7 (App:438-39). The majority of Prisoners participants are referred through the DOC program. McCoy Dep. 50:22 51:6. (App:419-20). The vast majority of its revenue comes from DOC payments and private donations. Id. at 51:19 52:17 (App:420-21). According to an audit of its financial statements, almost half of Prisoners 2010 revenue came from the DOC. (App:848); see also Prisoners Form 990, 2010 (over half of total revenue from government grants) (App:863). Prisoners maintains one checking account, into which it deposits all revenues. McCoy Dep. 56:21 59:1 (App:425-28). It does not segregate any funds, except those funds specifically donated as a designated offering a donation for a specific purpose, like the purchase of a new van. Id. All other funds, including those received from the DOC, are lumped together and are available to be spent for any organizational purpose. Id. Prisoners does not track how DOC funds are spent. Id. C. The Contracts With Defendant Contractors. Section , Florida Statutes, expressly requires DOC to enter into contracts with private organizations, including faith-based service groups, to operate substance abuse transition housing programs (3)(a), Fla. Stat. In entering these contracts, DOC shall make every effort to consider qualified faith-based service groups on an equal basis with other private organizations (2)(c), Fla. Stat. Pursuant to those provisions, the DOC contracted with Lamb of God and Prisoners in 13

14 August 2002 to provide faith-based substance abuse post-release transitional housing programs. See contracts C1999 and C2054 (App:1178, 1301). Thereafter, DOC again contracted with the Defendant Contractors for faith-based substance abuse post-release transitional housing services, with various contracts running through January of See contracts C2269, C2271, C2260 (App:1218, 1266, 1339). Collectively, all of these contracts will be referred to as the Early Contracts. In July 2011, DOC again contracted with Lamb of God and Prisoners to provide Post- Release Substance Abuse Transitional Housing Program Services. See Contracts C2680, C2681, and C2666 (App:1390, 1438, 1482). As amended, C2666 and C2680 run through June 2016, while C2681 expired in July C2666, C2680, and C2681 will be referred to collectively as the Later Contracts. Plaintiffs claims are based on the actual services provided by Defendant Contractors pursuant to the contracts and not on any specific language within the contracts. Nevertheless, this section will briefly describe the content of the contracts. The Early Contracts explicitly required that Defendant Contractors provide faith-based post-release substance abuse recovery programs. Early Contracts, at II.B. Additionally, the Early Contracts stated that Defendant Contractors would assist participants by providing a program that includes a faith-based component incorporating elements of moral challenge and spiritual renewal. Early Contracts, supra, at II.A. 4 The Later Contracts require the Defendant Contractors to provide post-release substance 4 C1999 and C2054 also stated that Defendant Contractors will provide services that include a significant faith-based component incorporating elements of moral challenge and spiritual renewal. See C1999 & C2054, II.B.1.y. (emphasis added). The other Early Contracts removed significant from otherwise similar provisions. See C2260, C2269, & C2271, in Early Contracts, supra, at II.B.1.cc. 14

15 abuse transitional housing programs, but do not explicitly require those programs to be faith based. Later Contracts, at II.A. The Later Contracts state that Defendant Contractors, if providing faith-based post-release substance abuse transitional housing, shall ensure that a program participant s faith orientation, or lack thereof, is not considered in determining admission to the program,... Later Contracts, supra, at II.E.7. Although the contractual language changed, the Defendant Contractors have made few, if any, substantive changes to their philosophies or the services they provide. See Fugate Dep. 31:14 32:6, McCoy Dep. 69:1 70:7 (App:34-35, ). DOC s local contract coordinator for Prisoners does not believe there's (sic) a lot of differences in the services offered by Prisoners under the Early Contracts and the Later Contracts. Deposition of Thomas Britton ( Britton Dep. ) 16:22-17:25., Mar. 31, 2014 (App: ). Over her time as local contract coordinator for Lamb of God, Arnia Perpignand has not seen any significant changes in the program or services offered. Perpignand Dep. 27:24-29:12 (App:965-67). The Later Contracts initially included the option of providing a curriculum that uses a cognitive-behavioral model of addiction recovery that is exclusively religious, spiritual, or ecclesiastical in nature. Later Contracts, supra, at II.I.2.c.2. However, C2666 and C2680 were amended in June 2014 to provide that Defendant Contractors shall offer one of the following: (a) (b) (c) A curriculum that uses a cognitive-behavioral model of addiction recovery provided in accordance with applicable requirements of Rule 65D-30, Florida Administrative Code; or A self-help support group model of addiction recovery; or Names and locations of community resources providing substance abuse re-entry and relapse prevention services to program participants needing this service. Amendment 3 to C2666 & Amendment 4 to C2680, in Later Contracts, supra. 15

16 Under the contracts, enrollment in the program is voluntary, but all enrolled program participants shall be required to participate in program activities and abide by program rules. All of the contracts provide that a participant s faith or lack thereof cannot be considered in determining admission to the program and that the program shall not attempt to convert participants to particular faiths. Later Contracts, supra, at II.E.7; Early Contracts, supra, at II.B.1.b. Similarly, all of the contracts provide that State funds be used for the sole purpose of furthering the secular goals of criminal rehabilitation, the successful reintegration of offenders into the community, and the reduction of recidivism. Later Contracts, supra, at II.E.3; Early Contracts, supra, at II.B.1.c. MEMORANDUM OF LAW A. Florida s No-Aid Provision. Florida s no-aid provision is among the most restrictive of all the provisions found in state constitutions that restrict funds given to religious organizations, CSH, 44 So. 3d at 118. Indeed, it imposes more stringent constraints than the federal Establishment Clause. See Holmes, 886 So. 2d at 351( [T]he no-aid language was intended to impose restrictions beyond what is restricted by the federal Establishment Clause. ); CSH, 44 So. 3d at 119 (finding that the no-aid provision imposes further restrictions on the state's involvement with religious institutions than [imposed by] the Establishment Clause ). The provision flatly prohibits the State from using tax revenues in aid of any sectarian institution: No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. Art. I, 3, Fla. Const. The constitutional prohibition in the no-aid provision involves three elements: 16

17 (1) the prohibited state action must involve the use of state tax revenues; (2) the prohibited use of state revenues is broadly defined, in that state revenues cannot be used "directly or indirectly in aid of" the prohibited beneficiaries; and (3) the prohibited beneficiaries of the use of state revenues are "any church, sect or religious denomination" or "any sectarian institution." Holmes, 886 So. 2d at 352. A government-funded program that provides social services which also advance[s] religion violates the no-aid provision. CSH, 44 So. 3d at In assessing whether a government-funded program advances religion, a court should consider whether it 1) is used to promote the religion of the provider, 2) is significantly sectarian in nature, 3) involves religious indoctrination, 4) requires participation in religious ritual, or 5) or encourages the preference of one religion over another. Id. at 120. The CSH factors are not mandatory; rather, they serve as guideposts to a court in determining whether a sectarian institution is aided by State funds. B. Florida Law. While few Florida courts have construed the no-aid clause, the decisions that do exist are highly instructive. In Holmes, the First District held that Florida s Opportunity Scholarship Program (OSP) violated the no-aid clause to the extent that it provided state funds to sectarian organizations. Holmes, 886 So. 2d at Through the OSP, parents and guardians with children in failing schools were given tuition vouchers with which the parents and guardians could send their children to private schools. Id. at 347. Most of the parents and guardians who received vouchers chose to send their children to private schools operated by religious or church groups. Id. at 354. Various organizations and parents challenged the program as violating the no-aid provision, and the trial court granted summary judgment to the challengers. Id. at The Florida Supreme Court later approved the First District s decision, but on other grounds not addressed by the First DCA. Bush v. Holmes, 919 So. 2d 392, 413 (Fla. 2006). The First District s majority opinion in Holmes construing the no-aid provision remains controlling law. See CSH, 44 So. 3d at

18 On appeal, the First District, sitting en banc, upheld the grant of summary judgment because there was no dispute in this case that state funds are paid to sectarian schools through the OSP vouchers. Id. at 344. In so holding, the court established the three-prong test described above. Id. at 352. The court dismissed the appellants argument that no aid was given because the vouchers did not cover the full cost of tuition, expressly adopting the trial court s reasoning: While there is no evidence or assertion that any of the schools would cease to operate without the benefit of the OSP funds, that is not the test. It cannot be logically, legally, or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious education component, is advanced and enhanced by the additional, financial support received through operation of the Opportunity Scholarship Program. Id. at 353 (quoting trial court). Finally, the court found that the schools were sectarian institutions with an intent to teach to their attending students the religious and sectarian values of the group operating the school. Id. at 354. As evidence of the sectarian nature of the schools, the court pointed to the Mission Statement of the Pensacola-Tallahassee Diocesan school system and the Diocese's "Philosophy of Education." Id. The First District distinguished earlier Florida cases relied upon by the appellants because none involve the use of state revenues to aid a sectarian institution. Id. (discussing three Florida Supreme Court cases). For instance, in Koerner v. Borck, 100 So. 2d 398 (Fla. 1958), real property was given to a Florida county through a testamentary devise that contained a perpetual easement through which a local church could use the property for baptisms and other recreational activities. Koerner, 100 So. 2d at The supreme court found that State funds to improve the land would not benefit the church. Id. at 402. There was thus no disbursement of state funds in aid of a sectarian institution. Holmes, 886 So. 2d at 354. The First District in Holmes similarly distinguished Nohrr v. Brevard County, 247 So. 2d 18

19 304 (Fla. 1971) ( issuance of revenue bonds to support centers of higher education,... is not the payment of money from the revenue of the public treasury ), Johnson v. Presbyterian Homes of Synod of Florida, Inc., 239 So. 2d 256 (Fla. 1970) (tax exemption not a disbursement from the public treasury ), and Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d 697 (Fla. 1959) (no disbursement made from the public treasury). Id. at In all the cases, there was simply no disbursement of state funds to a sectarian institution. Six years after Holmes, the First District considered this Court s order granting Defendant s motion for judgment on the pleadings. CSH, 44 So. 3d at 115. The CSH court held that the no-aid provision is not limited to the school context and that expenditures outside the school context are not shielded from the no-aid provision simply because a sectarian organization is paid to provide social services for the state. Id. at Instead, a government-funded program that provides social services violates the no-aid provision if it also advances religion. Id. at 120. Most recently, in 2013, the Eleventh Circuit held that the no-aid provision was not violated by the Lakeland City Commission s use of City funds to 1) maintain and update a list of local religious congregations, and 2) mail invitations to leaders of those congregations to give invocations before Commission meetings. Atheists of Fla., Inc. v. City of Lakeland, Fla., 713 F.3d 577, 596 (11th Cir. 2013). The court emphasized that the speakers were not paid, and that the evidence did not show any pecuniary benefit, either direct or indirect, conferred by [the City of Lakeland] upon such groups, nor does it show that any religious organization received financial assistance from [Lakeland] for the promotion and advancement of its theological views. Id. (quoting Pelphrey v. Cobb County, 410 F. Supp. 2d 1324, 1348 (N.D. Ga. 2006)). In short, Atheists of Florida did not involve a disbursement of state funds, nor was there a showing 19

20 that any sectarian organization received a pecuniary benefit. Significantly, in the only Florida no-aid case in which state funds from the public treasury were paid directly to sectarian institutions, the court found a violation of the no-aid provision. See generally Holmes (finding a violation of the no aid provision and noting that previous cases did not involve direct disbursement of state funds to sectarian institutions). C. No-Aid Cases from Other Jurisdictions. Almost uniformly, courts in states that have no-aid provisions similar to Florida s find constitutional violations where state funds are given to sectarian institutions. For example, in Bennett v. City of LaGrange, 112 S.E. 482 (Ga. 1922), the Georgia Supreme Court held that the provision of city funds to the Salvation Army in exchange for the organization's handling of the city's charitable cases violated the state's no-aid provision, which was, and still is, nearly identical to Florida s. The Bennett court was not persuaded by the fact that under the contract between the city and the Salvation Army, the Salvation Army is only paid the actual amounts expended by it in taking care of the poor of La Grange, and then only to an amount not exceeding $75 per month, and that payments are made to the Army or its local detachment only upon itemized bills for services so rendered by it. Id. at 485. Neither was the court persuaded by the Salvation Army s admirable goals: The fact that the Salvation Army undertakes to reform the working classes, to reclaim the vicious, criminal, dissolute, and degraded, to visit the poor, lowly, and sick, which is pure religion and undefiled before God, and the highest form of benevolence, does not free it from being a sectarian institution. Id. As the Bennett court noted, [w]hen the state selects a sectarian institution of learning, and commits to such institution its wards, for whose maintenance and education it pays, it gives the most substantial aid to such an institution. Id. at

21 Other courts applying constitutional provisions similar to Florida s have found the following actions unconstitutionally aided a church, sect, religious denomination, or sectarian institution: 1) Loaning or giving books to students who attend religious schools, see e.g., Cal. Teachers Ass'n v. Riles, 632 P.2d 953 (Cal. 1981); Bloom v. Sch. Comm. of Springfield, 379 N.E.2d 578 (Mass. 1978); 2) Providing state-funded transportation to students attending parochial schools, see, e.g., Epeldi v. Engelking, 588 P.2d 860 (Idaho 1971); Spears v. Honda, 449 P.2d 130 (Haw. 1968); 3) Tuition paid to a religious institution, either through scholarships or vouchers, see, e.g., Locke v. Davey, 540 U.S. 712 (2004); Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); Witters v. Comm'n for the Blind, 771 P.2d 1119 (Wash. 1989); and 4) Payments made outside the school context, see, e.g., Trinity Lutheran Church of Columbia, Inc. v. Pauley, 976 F. Supp. 2d 1137 (W.D. Mo. 2013) (state grant that would allow Christian daycare facility to purchase recycled tires to resurface playground would violate Missouri no-aid provision); Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991) (no-aid provision violated by use of county funds to maintain, operate, and promote county park that contained immovable religious statues depicting scenes from New Testament); Richter v. City of Savannah, 127 S.E. 739, 740 (Ga. 1925) (constitutional violation where City of Savannah appropriated money to the Sisters of Mercy, who operated St. Joseph's Hospital, to pay for patients). ARGUMENT I. PAYMENT OF STATE FUNDS TO DEFENDANTS UNDER THEIR CONTRACTS VIOLATES ARTICLE I, SECTION 3 OF THE FLORIDA CONSTITUTION. The payments from DOC to Defendant Contractors under their contracts violate the noaid provision because those payments are derived from state revenues and are given directly in aid of pervasively sectarian institutions. Moreover, Defendant Contractors government-funded programs also advance religion. Sections and are thus unconstitutional as applied here to the extent they authorize the illegal payments. This Court should grant summary judgment on all counts of Plaintiffs Second Amended Complaint. 21

22 A. Applying the Holmes Test, The Contracts Violate The No-Aid Clause. 1. DOC Gives State Tax Revenues to Defendant Contractors. Defendants admit that state revenues are used to make payments to Defendant Contractors. See DOC Resp. to Pl. Am. Request for Admissions, 3. There is thus no dispute that the first element of the Holmes test is satisfied. 2. The Payments Directly Aid The Defendant Contractors. State revenues are given directly to and indisputably benefit Defendant Contractors. Indeed, the DOC payments represent significant portions of Defendant Contractors overall revenues. Fugate Dep. 53:12 54:1; McCoy Dep. 51:19 52:17 (App:56-57, ). It is immaterial that the ministries might continue to operate without the state funds. As the Holmes court recognized, money given to an organization benefits that organization even if the organization would survive without it. 886 So. 2d at 353. It is also immaterial that the Defendant Contractors may use part of the state revenues they receive for non-sectarian purposes. The DOC payments advance and enhance the Defendant Contractors operations including Lamb of God s mission to proclaim God s truth and bring glory to God, and Prisoners goal to help each of our clients to open their hearts to Jesus just as the funds in Holmes advanced and enhanced the entire educational missions of the schools. Id. As the Holmes court put it, it cannot be logically, legally, or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. Id. Furthermore, each Defendant Contractor comingles all of its revenues, including the DOC payments, into a single unsegregated account. Fugate Dep. 59:13 60:10; McCoy Dep. 56:21-59:1 (App:62-63, ). Both ministries pay all organizational expenses from that single account. Id. These expenses not only include rent, utility bills, and salaries all critical to 22

23 maintaining operations but also things like 1) Prisoners newsletters that exhort the virtues of Jesus Christ, 2) Defendant Contractors websites featuring Christian passages and testimonials, 3) voluntary Christian prayer sessions at which participants are encouraged to attend, and 4) paying the salary of pastors who minister to participants, including Fugate s pastoral allowance. Accordingly, the second element of the Holmes test is satisfied because the payments indisputably directly aid the Defendant Contractors. 3. The Defendant Contractors Are Pervasively Sectarian Institutions. The record evidence overwhelmingly shows that Defendant Contractors exist for the purpose of implementing and promoting their Christian faith. Both organizations are selfdescribed ministries that have stated missions or goals of spreading Christian faith. One ministry holds events in an on-campus chapel filled with Christian iconography, while the other holds events at a Lutheran church. Both ministries maintain websites that exude Christian faith and feature some combination of Bible verses, videos, Christian imagery, or testimonials that reinforce the idea that the Christian God is a fundamental element of the services they provide. See pp.6-10 (Lamb of God), (Prisoners of Christ), supra. Furthermore, both ministries are led by Christian pastors. Fugate believes in his heart that Lamb of God is a church. McCoy acknowledges that the mission of Prisoners is to provide Christian ministry, and he occasionally delivers Bible messages at the ministry s community meetings. Additionally, both organizations have used, and continue to use, curriculum that is faith-based and that specifically urges a belief in God. Both either use or have used curriculum materials that specifically teach the 12-step program through a Biblical or Christian perspective. Id. Even the Defendant Contractors names make explicit reference to Jesus Christ. Because both Defendant Contractors are pervasively sectarian organizations, the third 23

24 element of the Holmes test is satisfied. B. The Defendant Contractors Programs Advance Religion. The undisputed facts also show that Defendant Contractors government-funded programs advance their religion. First, as noted above, the state funds provide support to the Defendant Contractors entire operations, which are founded on overt missions of spreading Christianity. The funds help the organizations to maintain websites that promote religion, pay employees who share the gospel, send out newsletters extolling faith in Christ, and maintain facilities where Christian prayers and messages are shared by program participants. Second, the Defendant Contractors actively advance religion within their faith-based recovery programs. Although participation in the most prominent religious portions of the programs the prayer meetings is ostensibly voluntary (though strongly encouraged), enrollees are nevertheless required to participate in programs built around Christian faith. For example, Prisoners provides an intensive 5-day foundational Bible class, and Lamb of God conducts its AA style meetings with passages from the explicitly Christian AA Legacy. McCoy Dep. at 27:13-28:11; Fugate Dep. at 33:10-34:16, 36:1-5 (App:396-97; App:36-37, 39) Moreover, because both programs rely heavily on biblical principles as essential elements of recovery, participation necessarily means exposure to religious indoctrination and the promotion of Christian faith. Indeed, required participation means attendance at events held in Christian churches, chapels, or in other venues where Christian iconography is prevalent. When combined with the AA messages about giving oneself to God, such exposure to Christian imagery heavily suggests belief in the Christian God above others. As Fugate noted, biblical principles can be taught to a person that does not understand they re being taught that biblical principle. Fugate Dep. 32:11 18 (App:35); see also McCoy Dep. at 25:18-27:12 (App:394-96) 24

25 (Christian faith is essential to the prevention of recidivism. ). Further, state funds go into Defendant Contractors unsegregated accounts from which all organizational expenses are paid including those expenses related to the overtly religious components of the program even if some participants choose not to participate in the faithbased portions of the program. Thus, the program advances religion even if some participants choose not to engage in the faith-based aspects of recovery. The uncontroverted evidence also demonstrates that the Defendant Contractors actively share Christian gospel and testimony with participants. Prisoners encourages attendance at weekly prayer meetings with Christian prayer, and bi-monthly community meetings often feature McCoy delivering a Bible message. McCoy Dep. at 40:1-24, 43:4-44:1 (App:409, ). Lamb of God offers an exclusively Christian service each Sunday at its chapel that is usually well attended. Fugate Dep. at 39:15-40:25 (App:42-43). When the ministries leaders encourage participants to attend prayer meetings or offer to share their testimony, they are advancing their religion just as a church would by encouraging passing pedestrians to stop inside for a sermon. This is not a case where a religious organization merely serves as a conduit for purely secular social services. DOC pays Defendant Contractors so that released inmates may participate in faith-based recovery programs. Once enrolled, participants are instructed by Christian pastors that faith is crucial to their healing and that they must give themselves to God to recover. Participants are then surrounded by Christian imagery and literature, attend meetings in Christian chapels and churches, and are encouraged to participate in Christian rituals. Defendant Contractors government-funded programs unquestionably advance religion. C. The Revised Language in the Later Contracts Does Not Alter the Analysis. Although DOC amended the Later Contracts to remove the express requirement to 25

26 provide faith-based transitional housing services, this case is not, and has never been, about the specific language of the contracts. The inquiry in a no-aid case is simple and straightforward it asks whether state funds have been directly or indirectly given in aid of a sectarian organization. See Holmes, 886 So. 2d 352. Furthermore, both Lamb of God and Prisoners have continued to offer essentially the same services since they entered into their newly scrubbed contracts. Fugate Dep. 31:14 32:6, McCoy Dep. 69:1 70:7 (App:34-35, ). Thus, while the language of the contracts has changed, the nature of the Defendant Contractors and the services they provide has not. II. THIS COURT SHOULD ENJOIN FUTURE UNCONSTITUTIONAL PAYMENTS TO DEFENDANT CONTRACTORS. Because the payment of state funds to Defendant Contractors violates the no-aid provision, Plaintiffs request that the Court enjoin DOC from continuing such violations in the future by making the same unconstitutional payments for the same religious services. Florida courts have upheld preventative injunctions such as this under similar circumstances, where a defendant has exhibited a pattern of behavior that is unlikely to change. For example, in Board of Public Instruction Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969), the Florida Supreme Court affirmed an injunction prohibiting the Board from holding informal meetings where the public was excluded, which it had been doing for over a year in violation of the Sunshine Law. In so holding, the court explained that such preventative relief was warranted to enjoin violations of a statute where one violation has been found if it appears that the future violations bear some resemblance to the past violation or that danger of violations in the future is to be anticipated from the course of conduct in the past. Id. at 700 (citing Nat l Labor Relations Bd. v. Express Publ g Co., 312 U.S. 426, 437 (1941)). Similarly, the First District affirmed an injunction prohibiting a landlord from exercising 26