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.
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.
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.
THE COUNTY'S ASSERTIONS AT TRIAL
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,
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.
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.
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.
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.
HEARING CONCERNING CONSENT OR WAIVER
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.
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 ...