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June 27, 1997


The opinion of the court was delivered by: GOETTEL


 This matter is before this Court in an unusual posture. The events involved in this case occurred between 1990 and 1992. The action was commenced in 1993. It was tried in 1994 with a verdict for the plaintiff. Warner v. Orange County Department of Probation, 870 F. Supp. 69 (S.D.N.Y. 1994). Defendant then appealed. On September 9, 1996 the Court of Appeals affirmed with a dissent. Warner, 95 F.3d 202 (2d Cir. 1996). The defendant then moved for rehearing, suggesting that the rehearing be held en banc. On May 14, 1997, the Second Circuit Court of Appeals amended the original majority decision, Warner, No. 95-7055, slip op. 9689 (2d Cir. May 14, 1997), but on the same date also issued a remand order. Warner, No. 95-7055, slip op. 9719 (2d Cir. May 14, 1997). The Court of Appeals Clerk's Office advises that both the original opinion and its amendment have been vacated by the order of remand so that no opinions remain outstanding. *fn1"

  The remand order notes that, in connection with the petition for rehearing, "judges of this Court have expressed an interest in whether Warner, by failing to appeal his sentence, waived or forfeited the right to seek damages under § 1983, and in whether the County raised the issue at trial." The remand then directs the District Court to consider two questions: (1) whether the County asserted at trial that there had been a waiver or forfeiture of the claim and (2) whether the plaintiff was sufficiently aware at the time of the sentence of the extent of the religious practices of Alcoholics Anonymous ("A.A.") that his failure to object to, or appeal from, his sentence [which included a probationary condition of attendance at A.A. meetings] should be deemed "a consent, or a waiver or forfeiture" of his § 1983 claims. *fn2" The Court further notes that, even if the issue had not been raised at trial, the Court should conduct a hearing to insure that the parties have an adequate opportunity to present evidence on the question, following which the Court should make findings.


 Waiver is an affirmative defense. Pursuant to Rule 8(c) of the Federal Rules of Civil Procedure it must be plead affirmatively by the defendant. It was not so plead in this action. The failure to so plead would have prohibited the making of such a claim at trial. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 n.2 (2d Cir. 1988). Moreover, throughout the proceedings and at trial, the position of the defendant County was (and still is) that the A.A. program is not religious. Defendant conceded that the step meetings had a greater religious aspect than other types of meetings, *fn3" but claimed that the plaintiff never attended them and was never admonished for not attending them. See defendant's Rule 3(g) statement, P 5, filed June 22, 1993. The plaintiff vigorously disputed this assertion, stating that he attended at least ten step meetings pursuant to the direction of his probation officer and further that, when he was offered an alternative treatment program at the Pious School in Orange County, that program also taught the Twelve Steps. While the defendant made a pre-trial motion to dismiss and filed a trial memorandum it did not raise, or even suggest, such an issue in its arguments. *fn4" Nor was such an issue raised on appeal, although it became one of the two central issues in the dissent. See Warner, No. 95-7055, slip op. 9709 (2d Cir. May 14, 1997)(Winters, J., dissenting). However, there was evidence presented at trial from which an argument of waiver, if properly pled, could have been made, but was not.

 There were only three witnesses at trial, the plaintiff, his probation officer, and the County's probation director (whose testimony was limited, and did not touch on any possible waiver issue). In addition, the parties filed a stipulation of facts which, for some reason, was not included in the record on appeal. *fn5" The plaintiff's testimony, as related to the waiver issue, was that he attended four or five A.A. meetings prior to sentencing on his lawyer's recommendation so that the Court would look more favorably at him at sentencing and perhaps give him probation. When he first met with his probation officer a month after his sentence, or soon thereafter, plaintiff told Terwilliger that he thought the meetings were religious and that he was an atheist. He nevertheless was directed to attend three meetings per week for the next couple of years. He did so. He described the various kinds of meetings that he attended, which later included the step meetings. He indicated that prayers were said at virtually all meetings. At the step meetings, he was expected to read aloud parts of the steps. *fn6" When asked to read portions from the book on the Twelve Steps, he refused. His explanation was that "by reading from the step book I felt that I would have been practicing religion in a much more deeper sense. I felt the same way about it as if someone put a Bible in front of me and asked me to read a line from it, and that's offensive to me." Trial transcript pp.37-38. At the first voluntary meeting he attended, he spoke on another subject, but thereafter refused to speak; this resulted in his feeling ostracized. On about four occasions, he specifically told his probation officer that he objected to the religious training to which he was being exposed. He formed the opinion over time that A.A. was a program of indoctrination, and that the program participants lied to him by telling him that the program was not religious, while at the same time telling him that he must pray in order to succeed in his rehabilitation. "The idea is to get you praying at all costs. Don't worry, it's not religious, just pray. After you are praying on a daily basis for so long, I think it's a brainwashing technique." Trial transcript p.53.

 On cross-examination, the plaintiff stated that the meetings he attended voluntarily before sentencing were held in various churches. At these meetings the Twelve Steps were discussed by persons in attendance and were presented in writing on a billboard.

 The plaintiff's probation officer, Neal Terwilliger, also testified at trial. He indicated knowledge of the different types of A.A. meetings, but stated that he had never attended a step meeting. As to his familiarity with the A.A. program, he denied that it had any substantial religious content, other than recitation of the Lord's prayer at the end of each meeting. He stated that, in the meetings he had attended, there was no discussion of the Twelve Steps. He confirmed that, in December, 1990, he directed plaintiff to attend three A.A. meetings a week. He further directed plaintiff to attend step meetings in October, 1991 when he learned that plaintiff had not been attending them. He also suggested that it would be wise for him to get the Twelve Step book. It was his belief that the Twelve Steps were talked about only at step meetings. As to the step meetings, he had been informed by other probationers that nobody requires you to speak. Terwilliger acknowledged that it was possible that the Twelve Steps were discussed at other types of meetings, depending on who was running them. However, at the meetings he had personally attended, God was not discussed. Although he acknowledged that the plaintiff had told him that the A.A. meetings were too religious, he was unaware at that time that the plaintiff was an atheist.

 Based on the foregoing testimony, I find that, while there was some evidence to support the argument made in the dissenting opinion that plaintiff, knowing of the religious aspects, failed to object at sentencing or on appeal about the religious content of the A.A. programs, the County never raised this assertion at trial. Indeed, by virtue of its failure to plead waiver affirmatively, the County would have been foreclosed from making such an argument. Moreover, the assertion would have been directly contrary to its basic position that the A.A. program has no religious content.


 The remand order directs this Court to conduct a hearing on the plaintiff's awareness of the extent of A.A.'s religious practices as bearing upon whether his failure to object to or appeal his sentence should be deemed waiver or consent. It further directs the Court to conduct a hearing to insure that both parties have an adequate opportunity to present evidence, following which the Court should make findings. From the above, we conclude that we are to determine, taking into account the additional evidence presented at the hearing, whether, if the issue had been properly presented at trial, this Court would have found consent or waiver.

 The only witness called at the June 24, 1997 hearing was the plaintiff himself. The defendant called him, following which his own attorney cross-examined him. The following is a summary of his pertinent testimony.

 Warner was arrested in February, 1990 for his third alcohol related driving infraction in a little more than a year. On September 4, 1990, he plead guilty and was sentenced November 13, 1990. He did not appeal the sentence. Based on the four or five meetings attended prior to sentencing, Warner was aware of religious aspects to A.A. meetings. However, the participants at the meetings told him that the program was not religious, but merely "spiritual". He became substantially more aware of the religious aspects of the program over time as he was exposed to the Twelve Steps. The Twelve Steps per se were set forth on a billboard at the early meetings. At first he was open to the possibility that these steps could be worked by an atheist. *fn7" He did not consider the steps extensively until he had attended step meetings. Years later he read the book entitled Twelve Steps and Twelve Traditions, (Plaintiff's Exhibit 8), which expounds at greater length on the steps.

 Warner first saw his probation officer within a month of being sentenced and, at that time or shortly thereafter, advised his probation officer that participation in A.A. was religious. His probation officer disagreed with him based upon the probation officer's own experience and information. Several times during the next two years, Warner voiced his objections to being required to participate in A.A. meetings. He then obtained the services of his present attorney, who is a noted Orange County civil rights lawyer. His attorney filed a motion with the Town Court challenging the constitutionality of the sentence. The County opposed the motion arguing that it was moot. The Town Justice found that the motion was in fact moot because suitable alternatives by then had been made by the probation department for plaintiff to participate in an alternative program. *fn8"

 Prior to being sentenced, Warner had not attended a step meeting. He first did so about a year after commencing probation, at the insistence of his probation officer. In the beginning, plaintiff believed that the meetings were not necessarily religious, but that their hidden intent was. As mentioned earlier, he did not become fully aware of the religious intensity of the step meetings until he had attended several of them. Of course, he was aware of other religious aspects of the meetings, such as the recitation of prayers before and after every meeting. However, at the meetings, he was told that different people have different concepts as to what God is. He also was told that God could be anything, even a "spoon". The speakers at the A.A. meetings said that the Twelve Steps were not religious but were "spiritual". He tried to reconcile his own perceptions with what others were telling him, but he gradually decided that they were wrong and were attempting to trick him. His evaluation of the A.A. program, as found in the Twelve Steps and in the "Big Book", Alcoholics Anonymous, (authorship not disclosed), as well as the speakers at the meeting, is that it is the loss of religion and belief in God that causes alcoholism. He was urged to pray even though he professed not to have any belief in God and prayer. He viewed these importations as being a form of brainwashing. His own experience was that he was capable of total abstinence from alcohol without any religious assistance and did so for a year. When he reached these conclusions, he obtained a new attorney, filed his unsuccessful motion in Town Court, and then commenced the instant action.

 Based on the foregoing hearing testimony plus the evidence offered at trial, this Court makes the following findings of fact with respect to the issue directed by the remand order.

 (1) The A.A. program for combatting addictive alcoholism is deeply religious. *fn9"

 (2) The plaintiff perceived some of the religious aspects from his voluntary attendance at meetings before being sentenced.

 (3) At these meetings, A.A. members attempted to convince him that their approach was not religious only "spiritual". His probation officer subsequently agreed that the A.A. program was not religious. *fn10"

 (4) Over a period of two years, Warner ultimately became convinced that the A.A. program was religious, and that he was being subjected to religious indoctrination. He then commenced the legal proceedings leading to the present hearing.

 The order of remand calls for this Court to make "findings" and makes no reference to conclusions of law. However, it does envision the possibility of our amending the earlier judgment. Waiver is a mixed question of fact and law. See, e.g., Moynahan v. Manson, 419 F. Supp. 1139, 1143 n. 12 (D. Conn. 1976), aff'd, 559 F.2d 1204 (2d Cir.), cert. denied, 434 U.S. 939, 54 L. Ed. 2d 299, 98 S. Ct. 430 (1977). Consequently, we make a further finding, which is in part a conclusion of law, to indicate why we are not amending our earlier judgment.

 A waiver of a constitutional right must be voluntary, knowing and intelligent. United States v. Morgan, 51 F.3d 1105, 1110 (2d Cir. 1994), cert. denied, 133 L. Ed. 2d 112, 116 S. Ct. 171 (1995). The act of waiver must be shown to have occurred with awareness of its consequences. Id. Waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). The waiver or loss of any fundamental right can neither "be presumed nor may it be lightly inferred." United States v. Mapp, 476 F.2d 67, 77 (2d Cir. 1973)(internal citations omitted). The Court must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Zerbst, 304 U.S. at 464. See also Doe v. Marsh, 105 F.3d 106, 110-111 (2d Cir. 1997). Whether a defendant knowingly and voluntarily waived his rights "may only be determined after a careful evaluation of the totality of all surrounding circumstances...." United States v. Lynch, 92 F.3d 62, 65 (2d Cir. 1996), quoting United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991).

 The plaintiff ultimately reached the conclusion that performance of his probationary obligations, as required by his sentence, violated his constitutional rights. He was not asked when he reached that conclusion. However, since factually he was uncertain about the correctness of his involvement in religion, there is no reason to assume he had a firm conviction that A.A. was intensely religious at the time of his sentencing. Consequently, we do not find, based on the totality of the facts, that his failure to object or appeal was knowing and intelligent. Moreover, his initial inaction was decidedly influenced by the possibility that any objections or non-compliance could lead to a jail sentence or revocation of probation. As the Supreme Court held in Minnesota v. Murphy, 465 U.S. 420, 435, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), where the state expressly or impliedly asserts that "invocation of the privilege would lead to revocation of probation, it would have created the classical penalty situation, the failure to assert the privilege would be excused, and the prisoner's answers would be deemed compelled and inadmissible in a criminal prosecution." See also United States v. Oliveras, 905 F.2d 623, 627 (2d Cir. 1990). Had Warner, during his probationary period, refused to attend the A.A. meetings, he would have been in a "classic penalty situation". Indeed, had he attempted to assert such a claim prior to sentencing, he ran the risk that the defendant, instead of recommending a probationary period, would have recommended a jail term. In light of the foregoing, we find that the plaintiff did not waive, when sentenced, his right to make a subsequent objection to a violation of his constitutional rights.

 The remand order directs that we consider whether plaintiff's inactions should be deemed "a consent, or a waiver or forfeiture . . ." Warner, No. 95-7055, slip op. at 9721. Consent, of course, can be part of a waiver. However, we believe the term is used in the context expressed in the dissent, which speaks of consent to an intentional tort. Consent is defined as "[a] concurrence of wills. Voluntary yielding the will to the proposition of another." Black's Law Dictionary 377 (4th ed. 1957). The dictionary notes that there is a difference between submission and consent. Id. In not objecting to the probationary sentence, Warner was submitting to the lesser of two evils, not voluntarily agreeing to it. Moreover, the dissent cites to Van Vooren v. Cook, 273 A.D. 88, 75 N.Y.S.2d 362 (App.Div. 1947), which stands for the proposition that you can consent to having someone hit you, which would be a defense to a suit for battery. Id. at 365. Clearly you can. But someone who sticks his chin out and says, "hit me," still may have a claim if, after being hit and knocked down, he then is stomped into unconsciousness by his assailant. "The physical attack must not exceed the consent." Van Vooren v. Cook, 75 N.Y.S.2d at 366. If Warner consented to anything, it was his initial attendance at meetings as part of his probation. If he thereafter learned that he was embarking on a more insistent philosophical indoctrination than he anticipated, it cannot be said that he consented to that or, under the facts of this case, reasonably foresaw it. We therefore adhere to our earlier judgment.

 Dated: June 27, 1997

 White Plains, N.Y.

 Gerard L. Goettel


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