RANDALL SHIELD WOLF TRAPP
WILLIAM WHITE FEATHER DURFEE
JAMES CROW FEATHER MANLEY
BERNARD R. BAILEY, SR.
P. J. CHALAPATAS
1) Whether the trial court properly applied the Massachusetts Constitutional standard for protection of religious freedom when it upheld the Massachusetts Department of Correction refusal to allow a Native American Purification Lodge ceremony.
2) Whether the trial court erred in denying both class certification and joinder of additional parties and in excluding evidence of interference with Native American spirituality in all Massachusetts Department of Correction facilities.
Appellants are members of Native American Spiritual Awareness Councils (NASAC) in prisons operated by the Massachusetts Department of Correction (DOC). In May 1995, at the time of filing of this action, the original NASAC had been in existence at North Central Correctional Institution (NCCI) for more than five years, engaging in practices associated with Native American Indian spirituality.
Appellees are officials of the DOC.
Appellants' complaint alleged substantial discrimination by DOC against the free exercise of Native American spirituality, including confiscation of sacred items (pipes, feathers, headbands, drums, etc.) and interference with participation in NASAC. The complaint also alleged DOC refusal to permit a Native American Purification Lodge ceremony (colloquially, "Sweat Lodge").
On May 12, 1995, the trial court, Kottmyer J., issued preliminary injunctions protecting possession of sacred items and prohibiting DOC interference with participation in NASAC.
On October 20, 1995, Justice Kottmyer denied a motion for class certification, on the ground that the number of inmates likely to be affected by the litigation was not so numerous as to preclude joinder in the lawsuit.
On February 6, 1997, the court, Sikora, J., denied a motion to compel joinder, on grounds that are challenged in this appeal.
A two-day non-jury trial was held December 14-15, 1999, before Toomey, J. On May 4, 2000, Justice Toomey issued a decision making permanent and expanding the protections offered by the preliminary injunctions, but denying the request for an order requiring DOC to permit a Native American Purification Lodge.
On June 26, 2000, Appellants filed a notice of appeal challenging the denial of the Purification Lodge.
DOC stipulated to Appellants' sincerity of belief1 on the second day of trial (Appendix, VOL 3, Transcript pp. 2-20-2-21). DOC dropped prior to trial the issue of ethnic identity, which had been raised by defendant/appellee Marshall's attempt to impose ethnic limitations on the practice of Native American spirituality.2 Possession of sacred items was resolved by pre-trial agreement of the parties. The only issuing remaining was permission for a Purification Lodge.
The Native American Purification Lodge (Lodge) is a core ceremony in Native American spiritual practice (Appendix, VOL. 2, Transcript pp.1-39, 1-91-1-93, 1-115-1-119). The ceremony consists of a shelter made from saplings and covering materials, heating of rocks in a fire, placement of the heated rocks within the shelter, and sprinkling of water and herbs (typically sage and cedar) over the rocks; all accompanied by prayer and singing of sacred songs. (Appendix, VOL. 2, Transcript pp.1-22-1-24, 1-85-1-88; VOL. 4, p. 1 [Exhibit #1]).
Lodges are permitted in state and federal prisons in the United States and in Canada (Appendix, VOL. 2, Transcript pp. 1-25-1-31, 1-84-1-90, 1-100, 1-107-1-110, 1-115; VOL. 3, Transcript pp. 2-119-2-121; VOL. 4, pp. 2-24 [Exhibit #2]).
DOC has made no effort to provide a Lodge at any Massachusetts prison, despite requests therefore. (Appendix, VOL. 2, Transcript pp. 1-123-1-125; VOL. 3, Transcript pp. 2-95, 2-119-2-120).
North Central Correctional Institution (NCCI) was originally built as a state hospital (Appendix, VOL. 3, Transcript pp.2-57, 2-80-2-81, 2-110-2-111, 2-131). It is now a "Level 4" prison (Appendix, VOL. 3, Transcript pp. 2-43, 2-108-2-109). Some aspects of the original design do not conform to current designs for prisons. (Appendix, VOL. 3, Transcript p. 2-121). The physical structure and grounds of NCCI have been upgraded to conform to security requirements for a "Level 4' institution. (Appendix, VOL. 3, Transcript pp. 2-55-2-57, 2-109).
NCCI contains within the inner security perimeter a separately secured area sufficient for a Lodge ceremony, which has been used only for temporary trash storage. (Appendix, VOL. 2, Transcript pp. 1-51-1-53, 1-74, 1-125-1-127; VOL. 3, Transcript pp. 2-77-2-79, 2-96-2-100, 2-104-2-105).
One witness for NASAC, a correctional officer and chaplain in Connecticut, testified that the Lodge ceremony "removes" "gang related issues" (Appendix, VOL. 2, Transcript p. 1-93).
DOC has burdened the practice of Native American spirituality at institutions other than NCCI. (Appendix, VOL. 3, Transcript pp. 2-27-2-28).
DOC filed a motion in limine to exclude testimony about burdens at institutions other than NCCI. (Appendix, VOL. 1, p. 34; VOL. 2, Transcript pp. 1-6-1-14). The trial court denied the motion, (Appendix, VOL. 1, p. 48), but nevertheless excluded testimony about discrimination against Native American spirituality suffered by plaintiff/appellant Trapp at Souza-Baranowski Correctional Center. (Appendix, VOL. 3, Transcript pp. 2-43-2-48).
Massachusetts has the highest standard of Constitutional protection for religious freedom in the United States. Under the Massachusetts Constitution, government interference with religion is permitted only to accomplish a "compelling state interest," and then only by the "least restrictive means." Freedom of religion under the Constitution of the United States is adjudicated under a lower standard of "rational relation" and "reasonableness."
Conclusory allegations regarding prison security do not in themselves establish "compelling interest" and the trial court's endorsement of DOC allegations, without subjecting such statements to scrutiny, constitutes clear error.
Existence of the Lodge in other jurisdictions is a proper basis for determining the unconstitutionality of the DOC ban.
The trial court's conclusions based on the original design of NCCI are unsupported and contradicted by the evidence.
Other "factor[s]" asserted by the trial court are created from whole cloth and unsubstantiated by the evidence.
Allegations of fire danger are not sufficient justification to forbid a Lodge.
Conclusory allegations regarding security fail to provide a basis to sustain DOC ban of the Lodge under the federal "reasonableness" standard.
Assuming arguendo that the trial court had properly found a "compelling state interest" or "rational relation to valid penological concerns," the court erred in holding that a complete ban of the Lodge ceremony is either the "least restrictive means" or "reasonable."
DOC denial of the Lodge constitutes interference with a tenet or belief that is central to Native American spiritual practice and therefore imposes a substantial burden on that practice.Appellants' complaint raises common issues of law and fact and asserts causes of action arising out of a logically related series of transactions and occurrences based on an institution-wide prison policy. The trial court was in error and abused its discretion when it denied both class certification and joinder of parties.
Massachusetts has the highest Constitutional protection for religious freedom in the United States. Five separate provisions of the Massachusetts Constitution Declaration of Rights address religious freedom, including one specifically protecting prisoners.3
The Supreme Judicial Court has emphasized this strength of the Massachusetts Constitution in comparison to the Constitution of the United States:
Article 46, s 1 ("No law shall be passed prohibiting the free exercise of religion") parallels the First Amendment to the Constitution of the United States ("Congress shall make no law ... prohibiting the free exercise of religion"). [citation omitted] Despite the similarity of the two constitutional provisions, this court should reach its own conclusions on the scope of the protections of art. 46, s 1, and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment. Indeed, ... the Supreme Court substantially altered its standard for determining whether conduct was protected under the free exercise of religion clause by its decision in Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.Ed.2d 876 (1990), a much criticized opinion that weakened First Amendment protections for religious conduct. Attorney General v Desilets, 418 Mass. 316, 320-321 (1994).
The Desilets criticism of Employment Div v. Smith4 was widely shared. In 1993, to undo the effects of Smith and two other Supreme Court decisions,5 Congress passed the Religious Freedom Restoration Act (RFRA), 42 U.S.C. sec's. 2000bb, et seq.6 RFRA reinstated prior standards of federal protection for religion that paralleled Massachusetts law. As the Desilets Court explained:
The standard that we apply appears to be the same as that prescribed by the Religious Freedom Restoration Act of 1993. 418 Mass. at 322.
The Supreme Judicial Court had previously made clear that Massachusetts law protecting religious freedom incorporated prior federal standards announced in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).7 See Attorney General v. Robert Bailey, 436 N.E.2d 139, 386 Mass. 367 (1982), cert. den., Bailey v. Bellotti, 459 U.S. 970 (1982).
Following the passage of RFRA, Massachusetts and federal protections for religious freedom were again in concert. In 1997, the United States Supreme Court held RFRA unconstitutional as an excess of congressional power.8 Massachusetts and federal law on religious freedom again parted ways,9 with the Supreme Judicial Court insisting on the older and higher standard of protection:
The... principle of the Smith case [is] that "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Where, however, a law burdening religious practice is not neutral or is not of general application, that law must advance compelling interests and must be tailored narrowly in pursuit of those interests. Because this latter test states the standard that we apply under the State Constitution in all circumstances where a law burdens religion, we need not decide whether the law challenged in this case is neutral and of general applicability. Desilets, supra, 418 Mass. at 321, n. 4. [internal citations omitted, emphasis added]
The Commonwealth's Declaration of Rights "preceded and is independent of the Constitution of the United States." Commonwealth v. Upton, 394 Mass. 363, 372 (1985).10
In short, when governmental interference with religious freedom is challenged under the Massachusetts Constitution, a court must determine whether the interference is designed to accomplish a "compelling state interest," and, if so, whether the interference is the "least restrictive means" to accomplish that interest.
The trial court recognized that the Massachusetts Constitution imposes a two-part test for evaluating any law that burdens religious practice:
...[T]he Massachusetts Constitution...protects an inmate's religious observations unless the state's burdening of his or her practices is justified by 'compelling interests' and is 'tailored narrowly' to accomplish those interests. Attorney General v. Desilets, 418 Mass. 316, 320-321 (1994). Memorandum of Decision (Addendum, TAB 1, p. 4; Appendix, VOL. 1, p.42)
Despite this recognition, the trial court failed to apply the compelling interest test and instead based its holding on the lesser federal standard of "reasonableness." The court's conclusion exemplifies this failure:
In sum, this Court determines that, although plaintiffs' identification with their cultural heritage and their devotion to their religious belief system is indisputably sincere...the Court is persuaded that the preclusion at bar is reasonably related to the legitimate objectives of defendants' authority, is justified by the Commonwealth's interests in penological security and does not unduly burden plaintiffs' constitutional rights to practice their religion. Id. (Addendum, TAB 1, p. 6; Appendix, VOL.1, p. 44)
A proper application of the Massachusetts Constitutional standard protecting free exercise of religion requires detailed and substantial consideration of the evidence and strict scrutiny of DOC allegations.
The trial court was in error when it adopted without specific critical assessment the conclusory opinions expressed by DOC. The court's Memorandum of Decision declares that:
This Court is persuaded that the Commonwealth has a surpassing interest in diminishing the opportunities for mischief that abound in purification lodge ceremonies where heated rocks and metal implements are employed out of view of correctional officers. (Addendum, TAB 1, p. 5; Appendix, VOL. 1, p.43)
The problem here is that the court provides no scrutiny of the evidence upon which it was "persuaded."
DOC witnesses testified they have no evidence of any actual "disruption" from Lodge ceremonies, but that they "really wouldn't want to take that chance." (Appendix, VOL. 3, Transcript p. 2-83) The court adopted DOC's unwillingeness "to take [a] chance" as its own conclusion, without scrutiny of the evidence.
DOC witnesses did express concern for the fact that the Lodge ceremony is difficult to monitor because it occurs in part inside an enclosed shelter (Appendix, VOL. 3, Transcript pp. 2-82-2-83, 2-121-2-122). However, on cross-examination, one testified that the presence of an official chaplain for Native American practices would obviate this security concern (Appendix, VOL. 3, Transcript pp. 2-127-2-128). The record shows that DOC provides several chaplains of other faiths at each prison facility (Appendix, VOL. 3, Transcript p. 2-86).11
Furthermore, NASAC witnesses presented evidence that observation of Lodge participants may be accomplished by providing correctional officer training for a Native chaplain or by arrangements copied from state and federal institutions where volunteers lead Lodge ceremonies. (Appendix, VOL. 2, Transcript pp. 1-25-1-31, 1-84-1-90, 1-100, 1-107-1-110, 1-115; VOL. 4, pp. 2-24 [Exhibit #2]).
The trial court continues:
...[T]here is little doubt that, were the institutional authorities to allow such ceremonies, the potential for disruption of the orderly conduct of institutional business would become reality. Id. (Addendum, TAB 1, p. 5; Appendix, VOL. 1, p. 43)
The Decision footnotes this statement with the following assertion:
The Court is aware that evidence was presented by plaintiffs to the effect that purification lodge ceremonies have been permitted without untoward results in other jurisdictions. Such evidence is not compelling, however, because, in each of the foreign instances cited by plaintiffs, the circumstances were significantly unlike those that obtain at bar. That is, the NCCI, Gardner, circumstances - maximum security population, "gang" organizations present, physical plant not designed to serve as a correctional facility, etcetera - were not replicated in the cited instances and, accordingly, those references possess little, if any, probative value for the resolution of the instant matter. Id. (Addendum, TAB 1, p. 5, n. 3; Appendix, VOL. 1, p. 43, n. 3)
There is no basis in the record for this assertion. To begin with, NCCI is not "maximum security," but rather "Level 4" in a six-level system (Appendix, VOL. 3, Transcript pp. 2-43, 2-108-2-109). Furthermore, "the foreign instances cited by plaintiffs" show explicitly that the Lodge is permitted in other jurisdictions at varying security levels.12
The record also shows no evidence of any Native American "gang activity" at NCCI-Gardner. Moreover, if there had been such allegations, the duty of the court is to examine them under the Constitutional standard. Compare how assertions of "gang activity" were handled in Campos v. Coughlin, 854 F. Supp. 194 (S.D. NY, 1994):
While I defer to defendants' assessment of the gang situation within the DOCS system, and I accept defendants' assertions that beads are gang identifiers and facilitate gang activities and violence, this portion of defendants' arguments as justification for the entire scope of its directive does not address the essence of plaintiffs' claim. Defendants have not shown how the directive, which prohibits the wearing of beads even under clothing, furthers the state's compelling interest in the least restrictive manner. 854 F. Supp. at 207-208.
The trial record does contain testimony about the original design of NCCI, but nothing of this with regard to the Lodge ceremony.13
The trial court's footnote explanation for its summary conclusion shows that it applied the "compelling interest" standard backwards. The footnote states that "evidence...presented by plaintiffs...is not compelling." The Constitutional standard, however, is to be applied to evidence submitted by correctional officials. The Constitutional burden is on DOC and not NASAC to present "compelling" evidence.
In the penultimate paragraph of its Decision, the trial court asserts that
To itemize the properties of the purification lodge rite...is to demonstrate its patent incongruity with accepted notions of institutional security and safety. (Addendum, TAB 1, p. 6; Appendix, VOL. 1, p. 44).
"Itemization" and "patent incongruity," however, are not analysis, let alone scrutiny required by the "compelling interests-least restrictive means" standard. "Notions of institutional security and safety" are arguable matters requiring analysis and scrutiny, not a given yardstick by which to judge the case.
In contrast to the trial court's approach, the "compelling interest" test requires prison administrators to articulate security concerns with specificity. Conclusory statements regarding prison security do not establish "compelling interest":
While recognizing that the courts may not substitute their judgments for those of prison administrators in matters of prison procedure and management, it nonetheless remains true that the "asserted justification of such restrictions on religious practices based on the State's interest in maintaining order and discipline must be shown to outweigh the inmates' First Amendment rights," and "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."...We are of the opinion that the state must do more than simply offer conclusory statements that a limitation on religious freedom is required for security, health or safety in order to establish that its interests are of the "highest order." Weaver v. Jago, 675 F.2d 116, 119 (6th Cir., 1982) (quoting Kennedy v. Meacham, 540 F.2d 1057, 1061 (10th Cir., 1976).)14
Assertions of "potential security problems" are not sufficient to sustain a denial of inmate free exercise of religion:
Prison administrators cannot merely brandish the words "security" and "safety" and expect that their actions will automatically be deemed constitutionally permissible conduct. Indeed, "inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hac (sic) rationalizations will not suffice...." (citations omitted). Campos v. Coughlin, supra, 854 F. Supp. at 207.
One DOC witness was asked on direct examination about the operation of the Lodge in Connecticut prisons: "Can you explain the different opinions between the Connecticut Department of Correction and the Massachusetts Department of Correction as to the construction and the running of sweat lodges?" The witness responded in part: "[I]t's our professional opinion that they could create problems of a security nature if we allowed them into our facilities and so that's our opinion. It's obviously not the opinion of Connecticut correctional officials." (Appendix, VOL. 3, Transcript pp. 2-122-2-123).
Under the "compelling interest" test, correctional official opinion--especially when that opinion is expressed in the conditional, as the potential for a problem--is not dispositive of an inmate's right to freedom of religion.15
The trial court completely failed to apply the Massachusetts Constitutional standard for protecting religious freedom.
The record contains no specific evidence of security problems at NCCI relevant to the Lodge ceremony and a great deal of evidence of compatibility between the Lodge and prison security.
The U.S. Supreme Court has held that analysis of alleged security concerns at one prison system may properly take into account practices at other prison systems:
While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction. For example, Policy ...of the Federal Bureau of Prisons.... Procunier v. Martinez, 416 U.S. 396, 413-414 (1974), rev'd in part, Thornburgh v. Abbott, 490 U.S. 401 (1989).16
A cross-jurisdictional analysis also underlies the holding in Turner v. Safley, 482 U.S. 78 (1987), articulating the federal "reasonableness" standard:
Other well-run prison systems, including the Federal Bureau of Prisons, have concluded that substantially similar restrictions on inmate correspondence were necessary.... [T]he ... rule is consistent with the practice of other well-run institutions, including institutions in the federal system. Turner v. Safley, supra, 482 U.S. 78, 93, 94 (1987).
Witnesses for both parties testified that the Lodge is permitted in other jurisdictions. (Appendix, VOL. 2, Transcript pp. 1-25-1-31, 1-84-1-90, 1-100, 1-107-1-110, 1-115; VOL. 3, Transcript pp. 2-119-2-121; VOL. 4, pp. 2-24 [Exhibit #2]).17
The record contains substantial detail about the operation of the Lodge in Connecticut prisons. One witness, a trained correctional officer who serves as Native Chaplain in Connecticut, described the process by which institutional security is maintained during the Lodge ceremony, whether conducted by himself or outside volunteers. (Appendix, VOL. 2, Transcript pp. 1-84-1-90, 1-108-1-109).
DOC testified to personal knowledge of Connecticut practice and did not contradict the testimony that security problems have not occurred with the Lodge there. (Appendix, VOL. 3, Transcript pp. 2-119-2-121). Two witnesses testified to personal involvement with and knowledge of Lodges in federal prisons. (Appendix, VOL. 2, Transcript pp. 1-21, 1-85-1-90, 1-102-1-104).
DOC asserted that Connecticut experience could not be applied at NCCI because NCCI "was a converted state hospital to a prison in 1981" (Appendix, VOL. 3, Transcript p. 2-120). This testimony was elaborated to state that "there are buildings that are adjacent to the secure perimeter far closer than would be designed in a prison construction" (Appendix, VOL. 3, Transcript p. 2-121). At no point did DOC show any correlation between this design feature and the security requirements for a Lodge.
The trial court's finding as to the original construction of NCCI was central to its decision:
NCCI, Gardner was originally designed and built as a State Hospital. Its construct was not intended to provide security and its metamorphosis into a correctional institution has required adjustments which do not provide optimum assurance that the traditional objectives of a maximum security facility can be appropriately maintained at Gardner. Accordingly, although the inmate population of NCCI, Gardner, is regarded as one presenting "security risks," the facility possesses certain physical deficits that are not compatible with the character of the population. Decision (Addendum, TAB 1, pp. 3-4; Appendix, VOL. 1, pp. 41-42).
Unfortunately, except for the statement about the fact of the original design, the trial court's findings are unsupported and even contradicted by the evidence, to wit:
a) There is no evidence in the record that the original state hospital "was not intended to provide security"; in fact, the record shows that "when this was initially built there was two chain link fences all the way around this facility." (Appendix, VOL. 3, Transcript p. 2-131).
b) There is no evidence in the record that "its metamorphosis into a correctional institution has required adjustments which do not provide optimum assurance that the traditional objectives of a maximum security facility can be appropriately maintained"; in fact, the record shows that NCCI is not a "maximum security facility," but rather a "Level 4" institution (Appendix, VOL. 3, Transcript pp. 2-43, 2-108-2-109).
c) There is no evidence that "the facility possesses certain physical deficits that are not compatible with the character of the population"; in fact, the record shows that NCCI security infrastructure was upgraded over a three-and-a-half year period in accordance with the requirements of a "level four" penal institution. (Appendix, VOL. 3, Transcript pp. 2-55-2-57, 2-81).
d) Additionally, the record shows the existence of a separately secured area within the inner security perimeter at NCCI, described as large enough for a Lodge. (Appendix, VOL. 2, Transcript pp. 1-51-1-53, 1-74, 1-125-1-127; VOL. 3, Transcript pp. 2-77-2-79, 2-96-2-100, 2-104-2-105).
In another departure from the record, the Decision "factor [s] into the analysis the likely disorienting effects of inhalants that permit the participants to 'move into other worlds.'" (Addendum, TAB 1, p. 5; Appendix, VOL. 1, p. 43).
There is no evidence in the record of "inhalants" or of "disorienting effects" or of Lodge participants "mov[ing] into other worlds." These "factor[s]" may reflect the trial court's lack of familiarity with the aromatic use of sacred plants such as sage and cedar. (Appendix, VOL. 2, Transcript pp. 1-36-1-37, 1-129-1-132). In any event, these "factor[s]" asserted by the trial court are created from whole cloth and are unsubstantiated by the evidence.
DOC asserted the presence of wooden buildings in the prison and suggested that these posed a danger of fire from the Lodge ceremony. (Appendix, VOL. 3, Transcript pp. 2-80-2-81). On cross-examination, however, the witness indicated that the wooden buildings are on the opposite side of the prison at a considerable distance from the separately secured area. (Appendix, VOL. 3, Transcript p. 2-100). The two sides of the prison are separated by a security fence and gate (Appendix, VOL. 3, Transcript pp. 2-131-2-132).
In McKinney v. Maynard, 952 F.2d 350 (10th Cir., 1991)18, when prison officials alleged that "constructing a sweat lodge would not meet the fire marshal's safety standards...," the court of appeals held that these concerns "do not categorically negate" the request for a Lodge. Id. at 352, 354. McKinney was decided under the Turner standard of "reasonableness." If possibility of fire danger is not per se sufficient justification to forbid a Lodge under the "reasonableness" standard, it must also fail under the higher standard of "compelling interest."
Furthermore, DOC witnesses testified that open fires are permitted for officially sponsored barbecues near the wooden buildings (Appendix, VOL. 3, Transcript pp. 2-101-2-102, 2-105-2-106). If the prison can accommodate fires for barbecues near the wooden buildings, it can accommodate fires for a Lodge away from the wooden buildings.19
In sum, the trial court's conclusions are not supported by and are sometimes crucially contrary to the record. The trial court's unanalyzed and unsupported conclusion that "penological security" sustains DOC denial of a Lodge is in error.
Under federal law set forth in Turner, supra, prison policies are subject to judicial review for reasonableness.20 Under this standard, generalized security concerns are also insufficient to sustain the Constitutionality of a policy. This has been explicitly held with reference to the Lodge:
[T]he question under Turner becomes whether the limitations on access to the sweat lodge are logically related to a legitimate penological objective. The appellees's (sic) simple and unelaborated assertion that decisions concerning access to the sweat lodge were made on the basis of "security- related limitations" gives us little basis upon which to determine if there was some rational relationship between the denial of access and security. Thomas v. Gunter, 32 F.3d 1258, 1260 (8th Cir., 1994).
The "reasonableness" standard, like the "compelling interest" test, calls for more than speculation and assertions of possibilities. The trial court's Decision, adopting rather than scrutinizing DOC assertions, failed to carry out even the lesser federal standard of review.
The Decision states:
Doubtless there is a reasonable nexus, on the facts at bar, between the prohibition of ceremonial uses of purification lodges and the legitimate penological objective of internal security. (Addendum, TAB 1, p. 5; Appendix, VOL. 1, p. 43)
Exactly what evidence makes it "doubtless" that the "nexus" is "reasonable" is not stated. The "facts at bar" are not specified, let alone analyzed. The trial court's conclusion as to "reasonableness" is as unsupported as its statement that "the prohibition [of the Lodge] plainly advances the Commonwealth's compelling interest in avoiding threats to orderly management and the integrity of the institution...." (Addendum, TAB 1, pp. 5-6; Appendix, VOL. 1, pp. 43-44) The trial court fails repeatedly to engage in any actual analysis of evidence leading to a conclusion of rationality and reasonableness.
As argued above, the record is replete with evidence that the Lodge ceremony is conducted in other jurisdictions without jeopardizing penological goals. (Appendix, VOL. 2, Transcript pp. 1-25-1-31, 1-84-1-90, 1-100, 1-107-1-110, 1-115; VOL. 4, pp. 2-24 [Exhibit #2]). None of this evidence was contradicted by DOC.
Under a proper application of the "reasonableness" standard, the court may not simply adopt "unelaborated assertion[s] that decisions concerning access to the sweat lodge were made on the basis of "security-related limitations." Thomas v. Gunter, supra. The trial court completely abdicated its responsibility under the "reasonableness" standard to evaluate DOC assertions "to determine if there was some rational relationship between the denial of access and security." Id.
Assuming arguendo that the trial court had properly found DOC concerns to constitute a "compelling interest" or to have a "rational basis," the court's conclusion that a complete ban of the Lodge is the "least restrictive means" or "reasonable" is not supported by the record.
Under the limited Turner standard of "reasonableness,"
[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an "exaggerated response" to prison concerns. ... if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard. Turner 482 U.S. at 90-91.
The trial court failed to examine "obvious, easy alternatives" to total prohibition of the Lodge, though such alternatives were made in testimony and post-trial argument. This failure underlies the court's erroneous conclusion that total prohibition is the least restrictive means of accomplishing DOC security interests or reasonably related to these interests.
Even under the... Turner standard, courts have acknowledged that the construction, maintenance, and use of a sweat lodge may not place an unreasonable burden upon prison officials. Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir., 1995), cert. den., Thomas v. McCotter, 515 U.S. 1166 (1995), reh. den., Thomas v. McCotter, 515 U.S. 1183 (1995).
In light of the record, DOC total prohibition of the Lodge is an "exaggerated response" to speculative fears and anxieties. The record shows no alleged security concern that cannot be met:
a) As argued above, the statement that NCCI was originally designed as a state hospital provides no basis in itself to sustain a total ban of the Lodge. NCCI security has been upgraded appropriate to its classification level. The design features alluded to are not specifically related to the Lodge ceremony. Open fires have been accommodated within NCCI for barbecues.
b) A separately secured area suitable for a Lodge exists within the inner perimeter of NCCI. DOC uses this area for temporary storage of trash. DOC made no attempt to show that temporary trash storage is either a "compelling interest" or "reasonably related to legitimate penological interests." There was no testimony that alternative temporary trash storage would require major logistical or financial arrangements.
c) DOC expressed concern for the fact that the Lodge ceremony occurs in part inside an enclosed shelter. On cross-examination, the witness testified that the presence of a chaplain for Native American practices would obviate this concern. NASAC presented evidence that observation of Lodge participants may be accomplished by providing correctional officer training for a Native chaplain and by other arrangements copied from well-run state and federal institutions where volunteers lead Lodge ceremonies.21
Each of the security concerns alleged by DOC is amenable to remediation by a modest effort on the part of the institution.22
The fact that DOC may have to expend effort in accommodating the Lodge is not a basis for denying this aspect of Native American spiritual practice. As the Supreme Judicial Court has stated:
We would ... not readily subscribe to a rule that justified the denial of constitutional rights simply because the protection of those rights required special effort. Desilets, supra, 418 Mass. at 330.
Had the trial court properly performed its duty under either the Massachusetts or federal standards, it could not have upheld a total ban on the Lodge.
The sacred character and central ceremonial significance of the Lodge in Native American spirituality was uncontradicted. Witnesses testified that there is no substitute for the Lodge and that characteristics of the Lodge uniquely provide key aspects of Native spiritual practice. (Appendix, VOL. 2, Transcript pp. 1-33-1-35, 1-91-1-93, 1-115-1-119)
The central significance of the Lodge ceremony in prisons has been emphasized in scholarly literature:
Attending sweat ceremonies has become the single most important and widespread religious activity among Native American prisoners in the United States.... Elizabeth S. Grobsmith, Indians in Prison (Lincoln: University of Nebraska Press, 1994), p. 49.
An expert in transpersonal psychotherapy who has worked with Native spiritual practices testified that the Lodge ceremony would benefit NASAC members (Appendix, VOL. 2, Transcript pp. 1-72-1-73). This expert opinion is in accord with findings elsewhere:
The sweat lodge ceremony ... is a preparation for all other rites as well as a rite in itself. During sweat lodge ceremonies, participants experience physical and spiritual purification and are 'reborn' into harmony through the use of gifts from the helpers and powers that aid in prayer to the great mystery. Participants in the sweat lodge experience expanded spiritual and cultural understanding, feel more in harmony with life, gain increased wisdom, and are better able to follow the good red road. Elizabeth Grobsmith, an expert on the plains Indians, testified that there is support in the literature for the rehabilitative effects of sweat lodge ceremonies.... Indian Inmates v. Gunter, 660 F.Supp. 394, 395 (D. Neb., 1987), aff'd, SapaNajin v. Gunter, 857 F.2d 463 (8th Cir., 1988)23
The importance of the Lodge has been widely recognized in cases applying both "compelling interest" and "reasonableness" tests. Werner v. McCotter, 49 F.3d 1476 (10th Cir., 1995), cert. den., Thomas v. McCotter, 515 U.S. 1166 (1995), reh. den., Thomas v. McCotter, 515 U.S. 1183 (1995) remanded plaintiff's request for access to a sweat lodge,24 for consideration under the "compelling interest" standard, stating:
We may take judicial notice of the central and fundamental role played by the Sacred Sweat Lodge in many Native American religions. 49 F.3d at 1480.
Applying the "reasonableness" standard, Reinert v. Haas, 585 F.Supp. 477, 480 (S.D. Ia., 1984), held the Lodge to be "an absolutely essential part of worship"; Allen v. Toombs, 827 F.2d 563 (9th Cir., 1987), allowed weekly access to the Lodge for inmates in the general prison population, while denying such access for inmates in a disciplinary segregation unit; Thomas v. Gunter, 32 F.3d 1258 (8th Cir., 1994), allowed weekend and holiday access to the Lodge, while denying daily access; Thomas v. Gunter, 103 F.3d 700 (8th Cir., 1997), permitted the Lodge two to five times weekly, while denying daily access.25
The Lodge is a "core ceremony," akin to the Eucharist in Catholic faith (Appendix, VOL. 2, Transcript pp. 1-116-1-119). Justice Brennan, dissenting in O'Lone v. Estate Of Shabazz, 482 U.S. 342 (1987)26, explained the "substantial burden" occasioned by denying such "core" ceremonies:
Jumu'ah ... cannot be regarded as one of several essentially fungible religious practices. The ability to engage in other religious activities cannot obscure the fact that the denial at issue in this case is absolute: respondents are completely foreclosed from participating in the core ceremony that reflects their membership in a particular religious community. If a Catholic prisoner were prevented from attending Mass on Sunday, few would regard that deprivation as anything but absolute, even if the prisoner were afforded other opportunities to pray, to discuss the Catholic faith with others, and even to avoid eating meat on Friday if that were a preference. 482 U.S. at 360.
Courts applying the "compelling interest" standard have held that even a denial of less than central or core practices may constitute a "substantial burden" on spiritual freedom:27
We recognize that religious symbols often play an important role in expressing an individual's adherence to a particular faith; possession of the symbol in and of itself manifests belief in one's religious creed. A prohibition against the possession of a medicine bag therefore could, for those faiths for whom the symbol has sufficient importance, qualify as a "substantial burden".... Werner, supra, 49 F.3d at 1480.
DOC denial of the Lodge constitutes "interference with a tenet or belief that is central," Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir., 1995), to Native American spiritual practice and therefore clearly imposes a substantial burden on that practice. The trial court was in error in refusing to overturn this burden.
On October 20, 1995, the trial court, Kottmyer, J., denied without prejudice appellant's motion for class certification under Massachusetts Rule of Civil Procedure 23 on the ground that the class of persons affected by DOC rules regarding Native American spirituality was not so numerous that joinder of all members is impracticable.28
The gravamen of the motion for class certification was that DOC, acting under color of state law, unlawfully burdened Native American religious practices. Inherent in the allegations were legal and factual questions common to all potential class members.
Appellants subsequently moved pursuant to Massachusetts Rule of Civil Procedure 2029 to join named individuals as additional plaintiffs and defendants.
The trial court, Sikora, J., denied joinder on February 6, 1997, stating that:
The proposed additional nine inmate plaintiffs may be advancing a common issue of law (the right to native Indian religious dress and activity within the confines of the state correctional system) but not of fact. The original seven inmate plaintiffs all challenge practices at the North Central Correctional Institution (NCCI) in Gardner; the proposed additional nine plaintiffs are located at, and challenge in whole or in part, practices at the separate correctional facilities in Shirley, Bridgewater, and Concord. Their grievances present separate occurrences; and different, diverse bodies of evidence. (Appendix, VOL. 1, p. 22)
The issue of law again may be common for all the proposed defendants (the nature and extent of the asserted right of worship activity). However the common transaction, occurrence, or series of transactions and occurrences are conspicuously absent. Of the 12 proposed new defendants and occurrences, 10 transpired at Shirley, one at Concord, one at Bridgewater, and none at the Gardner facility. Consequently all the new allegations concerning these defendants arise from separate, not common, occurrences. (Appendix, VOL. 1, p. 23)
The denial of joinder displayed clear error and an abuse of discretion in two ways: (1) it premised joinder on the existence of common questions of law and fact, contrary to the clear language of the rule; and (2) it confused the "transactions" component of the rule.
First, Mass. R. Civ. P. 20(a) requires commonality of "any question of law or fact." The court's finding that "plaintiffs may be advancing a common issue of law...but not of fact" is the starting point of a train of reasoning not contemplated by and improper under the rule.
Having found a common question of law (thus satisfying the first prerequisite of the rule), the court should have inquired as to the second prerequisite: whether the asserted rights were "arising out of the same transaction, occurrence, or series of transactions or occurrences."
Instead, the court appears to have confused the "transaction" requirement with the question of commonality of fact. These two elements of Rule 20 are not the same. Each involves a separate inquiry, a different set of concerns, and a different approach. In short, the court converted a clear two-part rule into a confused three-part rule.30
The most thorough discussion of R. Civ. P. 20(a) in Massachusetts courts appears to be Catalogna v. Copley Pharmaceutical, Inc., 4 Mass. L. Rptr. 152, (Mass. Super. Aug 11, 1995; Brassard, J.):
Because Massachusetts courts have not closely examined Mass.R.Civ.P. 20(a), I turn to analysis of the analogous Federal Rule of Civil Procedure 20(a) for guidance. Federal courts have stated that this rule requires that for joinder of parties, two specific requisites must be met: a right to relief must be asserted by each plaintiff relating to or arising out of the same transaction or occurrence, and some question of law or fact common to all parties will arise in the action. 4 Mass. L. Rptr. at 153.
Federal courts clearly differentiate the question of commonality of law or fact from the question whether a right to relief relates to or arises out of the same transaction or occurrence. As to the latter:
The "transaction or occurrence test" of the rule "would permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary." Further, the rule should be construed in light of its purpose, which "is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.". See, generally, 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1652 (1972 & Supp. 1983). Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir.1983), quoting Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974).31
Generally, all "logically related" events are regarded as comprising a transaction or occurrence. Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).
The extended discussion in Mosley is instructive, because that case, similar to the case at bar, involved joinder of plaintiffs alleging harm from defendants under an institutional policy of discrimination:
In ascertaining whether a particular factual situation constitutes a single transaction or occurrence for purposes of Rule 20,... construction of the terms "transaction or occurrence" as used in the context of Rule 13(a) counterclaims offers some guide.... "'Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." 497 F.2d at 1333, quoting Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 70 L. Ed. 750, 46 S. Ct. 367 (1926).
Mosley then held:
Accordingly, all "logically related" events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. 7 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 1653 at 270 (1972). The analogous interpretation of the terms as used in Rule 20 would permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary. Id.32
The Mosley rule accords with the result reached in United States v. Mississippi, 380 U.S. 128, 13 L. Ed. 2d 717, 85 S. Ct. 808 (1965), a suit brought by the United States against the State of Mississippi, election commissioners, and voting registrars, charging practices hampering the voting rights of Negro citizens. The district court had concluded that the complaint improperly attempted to hold county registrars jointly liable for what amounted to nothing more than individual torts committed by them separately against separate plaintiffs. Reversing the Mississippi district court, the Supreme Court stated:
...[T]he complaint charged that the registrars had acted and were continuing to act as part of a state wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote solely because of their color. On such an allegation the joinder of all the registrars as defendants in a single suit is authorized by Rule 20(a) of the Federal Rules of Civil Procedure... These registrars were alleged to be carrying on activities which were part of a series of transactions or occurrences the validity of which depended to a large extent upon "questions of law or fact common to all of them." 380 U.S. at 142-43.
The implications for the case at bar are clear: Just as challenges to a "state-wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote" [U.S. v. Mississippi] and "a company-wide policy purportedly designed to discriminate against Negroes in employment" [Mosley v. GMC] were determined to arise out of the same series of transactions or occurrences, similarly, inmate challenges to DOC infringement of Native American spirituality constitute rights of action arising out of the same transactions or occurrences.
The "transactions" test in the case at bar is satisfied under a proper application of the rule. The trial court was in error and abused its discretion in holding to the contrary.33
Similarly, the trial court's exclusion of testimony by plaintiff/appellant Trapp relating to DOC interference with his spiritual practice at Souza-Baranowski Correctional Center was in error in precluding presentation of the full scope of DOC interference with Native American spirituality. (Appendix, VOL. 3, Transcript pp. 2-43-2-48). The exclusionary ruling was expressly premised on the prior denial of joinder.
The Massachusetts Constitution requires courts to find a "compelling interest" to sustain any government regulation that burdens spiritual practice. If such interest exists, the regulation must be tailored narrowly to the "least restrictive means" of promoting that interest. Attorney General v. Desilets, 418 Mass. 316, 321 (1994).
A court must do more than adopt a speculative or possible governmental interest to fulfill the compelling interest test, for "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation [of religious freedom]". Sherbert v. Verner, 374 U.S. 398, 406 (1963), cited in Desilets, supra, 418 Mass. at 322.
[Prison officials] must show that a regulation ... furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction ... that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. Champagne v. Commissioner, 395 Mass. 382, 391 (1985) [quoting Procunier v. Martinez, supra, 416 U.S. at 413].34
Although the court paid lip service to the rule, its decision failed to engage in the close scrutiny required by the compelling interest--least restrictive means standard.
The court's holding that DOC has shown a "reasonable relationship" between denial of the Lodge and a legitimate penological interest is also contrary to the record and the law. The fact that accommodating the Lodge might require DOC to make efforts is not a basis for upholding the denial of the Lodge.
Although the practice of Native American traditional religion may not conform as neatly to those accommodations already provided in a prison setting, that, standing alone, neither renders the claim of a Native American worshipper frivolous nor terminates the responsibility of prison officials to consider some accommodation. McKinney v. Maynard, supra, 952 F.2d at 353.
The burden placed by DOC on Native American spiritual practice violates the special policy of the United States to protect and preserve Native American religious freedom. American Indian Religious Freedom Act, 42 U.S.C. sec. 1996.35 The trial court erred in failing even to consider this policy.
The court's denial of both class certification and joinder and its exclusion of evidence of DOC actions at institutions other than NCCI display clear error and an abuse of discretion.
1. Enter declaratory judgment and injunction that the Department of Correction make available a secure area and means for conducting the Native American Purification Lodge ceremony.
2. Reverse the trial court's denial of class certification and joinder and enter an order certifying this action as a class action or, in the alternative, remand to the court below for hearings on joinder, with instructions to join as plaintiffs all members of Native American Spiritual Awareness Councils in Massachusetts prisons and as defendants all superintendents, directors of treatment, and other line officials in such prisons.
3. Award reasonable attorneys' fees pursuant to M.G.L. c. 93, sec. 102; M.G.L. c.12, sec. 11I; and 42 U.S.C. sec. 1988.
4. For such other and further relief as the Court deems just and equitable.
Dated: December 27, 2000
By Their Attorneys,
Robert T. Doyle, Jr.
Peter P. d'Errico
1. Sincerity is a threshold issue in religious freedom cases. See Attorney General v. Bailey, 386 Mass. 367 (1982). See also Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972). See also Attorney General v Desilets, 418 Mass. 316, 323 (1994): "Supreme Court free exercise of religion cases have accepted, either implicitly or without searching inquiry, claimants' assertions regarding what they sincerely believe to be the exercise of their religion, even when the conduct in dispute is not commonly viewed as a religious ritual."
2. Courts have criticized government imposition of ethnic criteria as a condition of Native American spiritual practice. See Combs v. Correction Corp. of America, 977 F. Supp. 799, 802 (W.D. La., 1997) ["...[R]estricting the practice of the Native American Religion only to those prisoners of Native American ancestry ... offends the fundamental constitutional right to practice religion of one's choice."] and U.S. v. Boyll, 774 F.Supp. 1333, 1340 (D. NM, 1991), app. dism'd. 968 F.2d 21 (10th Cir., 1992) ["...[T]here can be no more excessive entanglement of Government with religion than the Government's attempt to impose a racial restriction to membership in a religious organization. The decision as to who can and who cannot be members of the Native American Church is an internal church judgment which the First Amendment shields from governmental interference."]
3. The provisions are Articles (as amended) II (right and duty of worship), III (protection of religious societies), XVIII (free exercise, including section 4 regarding inmates), XLV (absentee voting on religious holidays), and 48, section 2 (prohibiting referenda and initiative petitions on religious matters). In addition, the old requirement that the governor profess Christianity has been abolished. Specific statutory protection for inmate religious freedom also exists, M.G.L., c. 127, sec. 88.
4. Smith involved an Oregon rule denying jobless benefits to members of a Native American peyote church.
5. The two other decisions reduced federal Constitutional protection specifically for prisoners: Turner v. Safley, 482 U.S. 78 (1987) and O'Lone v. Estate Of Shabazz, 482 U.S. 342 (1987). The Turner rule is that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. Notably, while Turner upheld restrictions on inmate mail, it overturned a ban on inmate marriage, in part on the ground that "marriage may be an exercise of religious faith." 482 U.S. at 96. O'Lone applied Turner to hold that a rule preventing Muslim inmates working outside the main building from attending weekly congregational service inside did not violate the First Amendment's free exercise of religion clause.
6. Section 3 of RFRA provided as follows: "FREE EXERCISE OF RELIGION PROTECTED. (a) IN GENERAL. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b); (b) EXCEPTION. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." The statute extended to actions involving prisoners, 42 U.S.C. sec's. 2000bb-1(a), 2000b-2(1). Legislative history shows that both Senate and House considered and rejected an exception to the Act for inmates' claims, S. Rep. No. 103-111, 103rd Cong., 1st Sess. (1993), H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993).
7. Sherbert v. Verner held that a statute precluding a Seventh Day Adventist from receiving unemployment benefits because she would not work on her Sabbath violated her free exercise of religion. Wisconsin v. Yoder held that a state's mandatory education requirement as applied to Amish children violated their free exercise of religion.
8. City of Boerne v. Flores, 521 U.S. 507 (1997), declared RFRA unconstitutional, thereby returning federal law to the lower standard of "reasonableness" set forth in Employment Div. v. Smith, Turner, and O'Lone, supra.
9. Turner has been relied upon in Massachusetts courts in two reported cases not involving religious freedom. In Cacicio v. Secretary, 422 Mass. 764 (1996), the Court upheld prison telephone regulations in the face of inmate speech and privacy challenges. The Court specifically excluded from consideration alleged religious freedom issues. 422 Mass. at 768, n9. In Lovell v. Superintendent, 26 Mass.App.Ct. 35 (1988), the Court reversed summary dismissal of an inmate challenge to a ban on nude photos and remanded for consideration of the 'reasonableness' of the ban under the Turner rule.
10. This has been explicitly noted: "Moreover, the Supreme Judicial Court has also recognized that the Constitution of the Commonwealth grants rights to prisoners which exceed the protections guaranteed in the Bill of Rights." Manor v. Rakiey, 2 Mass. L. Rptr. 506 (1994).
11. The failure of DOC to provide even one Native chaplain itself raises a serious question of discrimination. See Cruz v. Beto, 405 U.S. 319, 321 (1972): "If [a Buddhist prisoner] was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the state against the Buddhist religion...." See also Lemay v. DuBois, 1996 U.S. Dist. (D. Ma.) LEXIS 11645, 1996 WL 463680 (prohibiting discrimination between Christian and Native religions) (Addendum, TAB 3).
12. See cases cited in section III, below.
13. Further discussion of the original design of NCCI will be found in sub-sections A and C, below.
14. In Weaver, a prisoner subjected to disciplinary action for failure to have his hair cut in conformity with prison regulations, who alleged he subscribed to Cherokee religious belief that cutting of his hair would indicate disgrace, humiliation or death in his family, was held to have a claim that his First Amendment right to freedom of religious expression was violated. Weaver was quoted approvingly in House and Senate reports of RFRA as an authoritative statement of the "compelling interest" standard. S. Rep. No. 103-111, H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993).
15. The relationship between penal security and religious expression was properly addressed in Alvarez v. Flynn, Massachusetts Superior Court, Civil No. 95-0275B (July 6, 1995), where the court held that statement of "a general objective which may be compelling is insufficient for purposes of the [compelling interest test]." "Defendants concern for safety and security at the Jail is appropriate. However, defendants have failed to establish a connection between the institutional safety and security goals and the confiscation of articles with facially obvious religious significance. ...Defendants' assertion that the seizure of religious articles in accordance with its policy and in furtherance of the safety and security goals is based on mere speculation at best. ... Therefore, defendants have failed to sustain their burden of proving a compelling government interest." Id., Findings of Fact, Rulings of Law and Order for Judgment, Carhart, J. [Addendum, TAB 2, p. 6]
16. Thornburgh, involving receipt of subscription publications by federal prison inmates, partially overruled Procunier to the extent that the latter applied a standard of "heightened scrutiny" rather than the Turner "reasonableness" test. The "heightened scrutiny" standard, however, is in accord with the Massachusetts Constitutional standard.
17. See also cases cited in section III, below.
18. Overruled in part, to the extent that McKinney held that parole status of former inmate saves claim from dismissal on mootness grounds. McAlpine v. Thompson, 187 F.3d 1213, 1215-1216 (10th Cir., 1999). The holding in McKinney regarding the Lodge was unaffected.
19. Compare Pedro v. Murphy, Suffolk No. 94- 3724C, 1998 WL 59483 (Mass.Super.) [inmate telephone use]:"[D]efendants...failed...to provide any particulars or concrete information such as would indicate that permitting such calls is not technologically feasible." DOC failed to show that a Lodge fire is "not technologically feasible."
20. Similar to the Massachusetts standard for issues not subject to the "compelling interest" test: "'[C]ourts will not hesitate to overrule agency interpretation of rules when those interpretations are arbitrary, unreasonable, or inconsistent....'" Manor v. Superintendent, 416 Mass 820, 824 (1994).
21. Compare American Indian Spirituality: Beliefs and Practices, Federal Bureau of Prisons Report of Chaplaincy Work Group (1993): "Institutional counts may be made during the sweat, but the Sweat Lodge door should not be opened for the count. Participants should be notified of the count and asked to come out. Staff should not cross the area between the fire and the lodge but should walk around the fire or behind the lodge when a ceremony is in progress." Id., 13.
22. Compare: "The Sacred Sweat Lodge ritual takes place in a small hut-like structure built from willows and blankets. Large rocks are heated in a fire pit outside the lodge, and then, by means of a pitchfork, are placed in the lodge, where water is poured over them to create steam. Herbs are burned for purification. Participants enter the lodge naked, to pray and meditate, and to purge the body and the spirit. The ceremony lasts between one and one-half hours and two hours. At OSP [Oregon State Penitentiary], a sweat lodge and adjoining fire pit have been built in the industrial area of the prison for the use of inmates in the general prison population. The ceremony is held weekly on Saturdays." Allen v. Toombs, 827 F.2D (9th Cir. 1987) 563, 565n.
23. Indian Inmates, applying the "reasonableness" standard, upheld a policy providing access to the Lodge ceremony for the general prison population, but denying access to inmates in the protective custody unit.
24. Werner also involved possession of a medicine bag, access to a Native American Spiritual Advisor and to religious literature, and possession of various religious symbols (including, inter alia, a hawk feather and a crystal amulet).
25. See also: Bear v. Nix, 977 F.2d 1291 (8th Cir., 1992) [individual access to Lodge improperly denied under terms of settlement agreement]; Mathes v. Carlson, 534 F.Supp. 226 (E.D. Mo., 1982) [Lodge issue moot because instituted]; McKinney v. Maynard, 952 F.2d 350, 354 (10th Cir., 1991) [fire and security concerns "do not categorically negate" request for Lodge].
26. RFRA "was designed to overrule the Supreme Court's decision in O'Lone v. Estate of Shabazz." Rust v. Clarke, 851 F.Supp. 377, 380 (D. Neb., 1994). [See the discussion of RFRA in Section I, above.]
27. The court in Lemay v. DuBois, 1996 U.S. Dist. (D. Ma.) LEXIS 11645, 1996 WL 463680, [Addendum, TAB 3] held that the plaintiff, an inmate in the DOC Old Colony Correctional Center, Bridgewater, Massachusetts, had "...demonstrated a likelihood of success on his claim that the permanent confiscation of his [Native American] necklace and medallion, hair tie, feathers, sage, and cedar constituted a substantial burden...." Id. at *22. The opinion in Lemay contains an extended discussion of "the proper definition of 'substantial burden.'" Id. at *20-*22. [See Addendum, TAB 3, pp. 7-8.] In Alvarez v. Flynn, supra, the Court ruled: "Plaintiffs established...that the wearing of 'sacramentals' is an important part of the practice of their religion. By prohibiting such conduct, defendants impose a substantial burden on Plaintiffs' exercise of religion." Id., Findings of Fact, Rulings of Law and Order for Judgment, Carhart, J. [Addendum, TAB 2, p. 5]
28. Mass. R. Civ. P. 23(a) provides as follows: "Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
29. Mass. R. Civ. P. 20(a) provides in part as follows: "Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.
"All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more of the defendants according to their respective liabilities...."
30. The trial court not only confused the "transactions" test with the "common question of law or fact" test, but appears to have assumed that variations in the fact patterns of each plaintiff's relation to each defendant contradict the existence of a common question of fact. Such an approach, however, is contrary to the rule, especially in cases of discrimination like the one at bar: "The discriminatory character of the defendants' conduct is...basic to each plaintiff's recovery. The fact that each plaintiff may have suffered different effects from the alleged discrimination is immaterial for the purposes of determining the common question of law or fact." Mosley, 497 F.2d 1330, 1334 (8th Cir., 1974).
31. In Saval, various car owners brought suit against the manufacturer, distributor and dealer of Jaguar automobiles, alleging six different unrelated defects. The Fourth Circuit held that the "same or related transaction or occurrence" test was not satisfied. Mosley involved multiple plaintiffs and defendants in a challenge to a company-wide policy of racial discrimination, which was held to satisfy the test.
32. Mosley ruled that "the district court abused its discretion in severing the joined actions. The difficulties in ultimately adjudicating damages to the various plaintiffs are not so overwhelming as to require such severance." 497 F.2d at 1334.
33. Compare: "The impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of parties is strongly encouraged." League to Save Lake Tahoe v. Tahoe Reg. Plan. Agcy., 558 F.2d 914, 917 (9th Cir. 1977), citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966). Accord, Advamtel, LLC v. AT & T Corp., 105 F.Supp.2d 507 (E.D.Va. Jul 21, 2000), "[T]he "transaction or occurrence" test...should be construed broadly."
34. Champagne relied on the "heightened scrutiny" test in Procunier, which was overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989), in favor of the Turner "reasonableness" test. However, as the Supreme Judicial Court stated in Desilets, supra, "[T]his court should reach its own conclusions on the scope of the protections of art. 46, s 1, and should not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment." 418 Mass. at 321.
35. "On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U.S.C. sec. 1996.