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WARNER v. ORANGE CTY. DEPT. OF PROBATION

July 27, 1993

ROBERT WARNER, Plaintiff,
v.
ORANGE COUNTY DEPARTMENT OF PROBATION, Defendant.



The opinion of the court was delivered by: GERARD L. GOETTEL

 GOETTEL, D. J.:

 This is an action for compensatory damages and injunctive relief brought by Plaintiff Robert Warner against Defendant Orange County Department of probation.

 I. STATEMENT OF THE FACTS

 On November 13, 1990, Plaintiff was convicted of Driving While Ability Impaired under N.Y.Veh.Traf.Law Section 1192(1). This was Plaintiff's third alcohol-related driving offense within a period of slightly more than one year. Plaintiff received a sentence of three years probation which included several "conditions of probation." The subject of the present complaint is condition No. 5 which states: "That you will attend Alcoholics Anonymous at the direction of your probation officer." Plaintiff's Complaint at 3.

 Alcoholics Anonymous (AA) is an organization dedicated to helping people recover from alcoholism. AA is not a party to this action. According to affidavits submitted by Defendant, there are over 35,000 AA programs in the United States and over one million members. Some important principles of the AA program are set forth in a pamphlet entitled "The Twelve Steps of Alcoholics Anonymous" which was allegedly distributed to Plaintiff and to many other new participants in AA. Several of these "steps" include language acknowledging the existence of a Higher Power and the necessity of subjugating oneself to such a Power as a precondition of successful treatment of alcoholism. Examples include:

 
. . . .
 
Made a decision to turn our will and our lives over to the care of God as we understood Him.
 
. . . .
 
Admitted to God, to ourselves and to another human being the exact nature of our wrongs.
 
. . . .
 
Sought 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.

 Plaintiff's complaint at 4-5 (emphasis in original).

 In addition to the "Twelve Steps", Plaintiff alleges, meetings frequently began with a prayer invoking the "Lord", and all members were encouraged to read a book written by the organization's founders, "The Big Book", which contains many references to spirituality and God. Chapter Four of "The Big Book", entitled "We Agnostics," provides:

 
To one who feels he is an atheist or agnostic such an experience seems impossible, but to continue as he is means disaster . . . . To be doomed to an alcoholic death or to live on a spiritual basis are not always easy alternatives to face . . . . About half our original fellowship were exactly of that type. At first some of us tried to avoid the issue, hoping against hope we were not true alcoholics. But after a while we had to face the fact that we must find a spiritual basis of life--or else.

 Plaintiff's Complaint, Exhibit B at 1. Members are encouraged to consider their own conception of "God".

 Plaintiff claims to be an atheist. He claims to have protested to his probation officers in 1990 when the sentence was imposed, as well as several times thereafter, that he found his forced participation in AA to be repugnant because it is religious in nature and because of its repeated emphasis on God and spirituality. Plaintiff does not object to alcohol rehabilitation programs per se as a condition of his probation, only to the specific make-up and character of AA. Defendant claims that, although Plaintiff complained about his requirement to attend AA meetings because he felt he did not need treatment, he did not articulate a protest on religious grounds until the summer of 1992.

 Plaintiff brought suit in July 1992 in the local criminal court arguing that the condition of his probation which required him to attend AA meetings violated his constitutional right to free exercise of religion.

 On or about August 17, 1992, Plaintiff's probation officer provided him with names and telephone numbers of three alcohol abuse counselors who would be able to provide the treatment in lieu of the AA program without an emphasis on God or spirituality.

 By order dated September 11, 1992, the criminal court dismissed Plaintiff's motion as moot.

 Plaintiff now claims that his forced participation in AA as an element of his probation constituted a violation of the Establishment Clause of the U.S. Constitution. He requests injunctive relief ...


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