Metropolitan News-Enterprise


Monday, September 10, 2007


Page 1


Court Allows Suit Over Parolee’s Forced Attendance in Program

Panel Says Government May Not Coerce Participation When Substance Abuse Treatment Is Based on Religion


By STEVEN M. ELLIS, Staff Writer


A Ninth U.S. Circuit Court of Appeals panel ruled Friday that a parole officer who compelled a parolee to attend a religious-based drug treatment program violated clearly established law and was not entitled to immunity from suit.

Reversing a grant of summary judgment by U.S. District Judge David A. Ezra of the District of Hawaii, Judge Marsha S. Berzon said the officer, Mark Nanamori, was not entitled to qualified immunity from Ricky K. Inouye’s suit for violation of his civil rights.

Inouye charges Nanamori violated his First Amendment rights when he required Inouye to participate in the program as a condition of his parole and then sought to revoke Inouye’s parole when he refused.

The court said that Inouye, a methamphetamine addict sentenced for drug crimes, had long objected to compelled participation in religion-based drug treatment programs.  While imprisoned in June of 2000, he had filed suit against state officials over his placement in such programs.

Later, upon learning that he would be released on parole, his attorney sent a letter to the Hawaii Paroling Authority, expressing Inouye’s objection to treatment programs containing explicit religious content. 

As Berzon noted, Inouye’s letter, dated Nov. 9, 2000 and sent just before he was released, declared that Inouye was a Buddhist and that he did not object to participation as a condition of parole so long as the program had no explicit religious content. 

The letter further stated that Inouye based his objection on First Amendment grounds, and included a copy of a 1996 decision by the Seventh U.S. Circuit Court of Appeals in the case of Kerr v. Farrey holding that participation in the Alcoholics Anonymous 12-step program could not be imposed by the state as a requirement for parole eligibility.

Positive Test

Inouye was arrested in 2001, for trespassing and tested positive for drug use. At that point, Nanamori ordered him to attend the Salvation Army’s Addiction Treatment Services program which required participation in Alcoholics Anonymous/Narcotics Anonymous, a program rooted in a regard for a “higher power.”

After a few months, Inouye refused to participate, resulting in his termination from the program, which Nanamori cited as grounds for Inouye’s arrest for parole violations and recommended revocation.  Inouye’s parole was later revoked.

Two years later, Inouye filed suit against Nanamori and others in state court.  The case was removed to federal district court where Nanamori prevailed on a motion for summary judgment when the court found that he held qualified immunity despite having violated Inouye’s First Amendment rights.

Inouye died during the course of the proceedings.  His son, Zenn K. Inouye, was appointed personal representative of his estate and appealed the District Court’s decision.

Finding that appeal well taken, the Ninth Circuit found that at the time Inouye’s parole was revoked, it was clearly established that “[t]he Hobson’s choice Nanamori offered Inouye — to be imprisoned or to renounce his own religious beliefs — offends the core of Establishment Clause jurisprudence.”

Work Praised

Noting that Nanamori did not dispute the program’s explicitly religious nature, Berzon  said the state had acted in a coercive manner, the object of which was religious rather than secular.  She said that it was of “no moment” that the state itself did not run the program.

“While we in no way denigrate the fine work of AA/NA, attendance in their programs may not be coerced by the state,” Berzon wrote. “The vastly overwhelming weight of authority on the precise question in this case held at the time of Nanamori’s actions that coercing participation in programs of this kind is unconstitutional,” the judge added.

“Nanamori’s mistake as to the law was not reasonable. An officer in Nanamori’s position, having available near-unanimous judicial invalidation of religious coercion in this and similar contexts, with a lawsuit in progress against the prison system for mandating participation in a similar program, and having Kerr in hand, should not have reasonably repeated the same mistake,” said the court.

Berzon was joined in her opinion by Senior Judge David R. Thompson.  Judge Richard C. Tallman concurred in the panel’s judgment, but expressed concern that the opinion gave parolees incentive to file lawsuits rather than motions at the trial court level. 

Tallman noted that other courts have recognized that the principal and primary effect of encouraging participation in AA programs is not to advance religious belief but to treat substance abuse, and pointed to other factors which contributed to the decision to revoke Inouye’s parole.

The case is Inouye v. Kemna, 06-15474.


Copyright 2007, Metropolitan News Company