Sample Argument for Appellate Brief

I. CARL CONVICTÕS FIRST AMENDMENT RIGHTS UNDER THE ESTABLISHMENT CLAUSE HAVE BEEN VIOLATED BY THE GOVERNMENT IN ITS COERCION OF MR. CONVICT TO PARTICIPATE IN THE ALCOHOLICS ANONYMOUS PROGRAM.

Though the primary purpose of Alcoholics Anonymous (A.A.) is not to establish or further a specific religion, and it is not a religion in itself, its foundation and components are of a religious nature. Any coercion of a probationer by the government to participate in such a program is a violation of the Establishment Clause of the first amendment, made applicable to the states under the fourteenth amendment.

A. Alcoholics Anonymous is not a religion as such but has a religious foundation and a religious nature and employs religious practices.

As pointed out in OÕConnor v. Calif., 855 F. Supp. 303 (C.D. Calif. 1994), the foremost reason for ordering participation in Òself-helpÓ meetings, such as A.A., is for the prevention of drunk driving and the injuries caused therefrom, while providing treatment for people with alcohol or drug abuse problems.

In ruling that it does not violate the Establishment Clause to require a person convicted of drunk driving, the court, in OÕConnor, also stated that A.A. is not a religion in that it does not Òadvance... religion as its principal or primary purpose.Ó This ruling concurred with Stafford v. Harrison, 766 F. Supp. 1014 (D.Kan. 1991) which held that A.A.Õs Ònotions of higher power and God were sufficiently flexible and non-denominationalÓ to support the opinion that participation in A.A. Òis not a religious exercise.Ó

In the opinion for OÕConnor v. Calif., 855 F. Supp. 303 (C.D.Calif. 1994), Judge Gary Taylor included the ÒTwelve StepsÓ of the Alcoholics Anonymous program as: 1) Admission of powerlessness over alcohol and admission that life had become unmanageable; 2) Belief that a Òpower greater than [oneÕs] selfÓ can restore ones sanity; 3) Decision to turn over ones Òwill and life to the care of GodÓ; 4) ÒSearching and fearlessÓ self-examination; 5) Admission to ÒGod, self, and one [additional] personÓ the exact nature of oneÕs ÒwrongsÓ; 6) Readiness for ÒGod to remove [oneÕs] defects of characterÓ; 7) ÒHumbly asking HIM toÓ remove oneÕs ÒshortcomingsÓ; 8) Willingness to list and make amends to those harmed; 9) Making those amends wherever possible; 10) Promptly admitting when one is in error through constant self-evaluation; 11) ÒSeek[ing] through prayer and meditation to improve contact with God asking for knowledge of HIS will and the power to carry it outÓ; 12) Carrying this message to other alcoholics and practicing daily Òthrough spiritual awakening.Ó

It was also noted in OÕConnor, as well as in Warner v. Orange County Dept. of Probation, 95 F.3d 202 (2d Cir. 1996), that A.A. meetings often open in prayer, turning to religion as the basis for motivation, and, as in Warner, closed with The LordÕs Prayer.

Carl Convict is prohibited by the tenets of his church to release any responsibility for his fate or his actions to any form of Òhigher power.Ó The A.A. programÕs emphasis on GodÕs will, prayers, and powerlessness, and its teachings that without giving oneÕs life over to these concepts, one will never achieve what one is striving for (particularly sobriety) are in direct conflict with the religious practices and beliefs of Mr. Convict.

B. Coercion by the government to participate in religious activities is a violation of the Establishment Clause of the first amendment.

The court in Warner v. Orange County Dept. of Probation, 95 F.3d 202 (2d Cir. 1996) stated that it is a violation of the Establishment Clause to coerce a probationer to attend Alcoholics Anonymous or any self-help program with a similar religious inclination.

Like Mr. Convict, Warner was sentenced to probation upon which special conditions were placed which, if not satisfied, would result in the probationerÕs incarceration in a correctional facility. Like Mr. Convict, Warner was required to complete an A.A. program. Warner, unlike Mr. Convict, was an atheist and took issue with forced exposure to, and participation in, the religious practices of Alcoholics Anonymous and those programs founded upon A.A. principles. Mr. Convict has an established religious faith and established beliefs and practices to which he adheres. The religious components of A.A. are not only not in concert with Mr. ConvictÕs beliefs and practices but in direct opposition to them.

The court in Warner affirmed the decision of the District Court, holding the Orange County Dept.of Probation civilly liable under 42 USCS s1983 (1996) for depriving Warner of his rights under the Establishment Clause.
Though the court in Stafford v. Harrison, 766 F. Supp. 1014 (D.Kan. 1991) asserted that attending A.A. meetings does not constitute a religious exercise, and that its concepts of God and Òhigher powerÓ were flexible, the court in Warner disagreed, calling the Stafford decision a Òmisapplication of the first amendment doctrineÓ on the grounds that governmental coercion of a probationer to be exposed to religion, and its belief and practices, is equal to governmental advocating and furtherance of that religion.

The Supreme Court denied certiorari for Griffin v. Coughlin, 88 N.Y.2d 674 (1996), cert. denied, 96-372, 1997 U.S. Lexis 59, wherein the court found that the Establishment Clause does not Òpermit the state to deprive an atheist or agnosticÓ inmate of privileges due to his refusal to participate in a religion-based alcohol and drug rehabilitation program.
The ruling in Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) concurred by finding a violation of the Establishment Clause by prison officials who demanded that inmates participate in an A.A.-like substance-abuse program under threat of loss of privileges.

The Supreme Court declared, in Board of Education of Kiryas Joel Village Sch. Dist. v. Grumet, 192 L. Ed. 2d 546 (1993), that the Òprinciple at the heart of the Establishment Clause [is] that government should not prefer... religion over non-religion.Ó Similarly, the Court, quoting Lynch v. Donelly, 465 U.S. 668 (1984), reh. denied, 466 U.S. 994 (1984), stated, in Lee v. Weisman, 505 U.S. 577 (1992), that, at the very least, the Constitution guarantees that Ògovernment may not coerce anyone to support or participate in religion or its exerciseÓ or otherwise act in any way Òwhich Ôestablishes a [state] religion or religious faith or tends to do so.ÕÓ

The Second Circuit Court of Appeals, in Warner v. Orange County Dept. of Probation, 95 F.3d 202 (1996), utilized a three-pronged test to establish violation and liability: 1) Was the program in which the probationer was ordered to participate the Òfunctional equivalent of a religionÓ given its foundation upon belief in a higher power? 2) Was there coercion by the state or agents thereof to participate in said program? 3) Did the coercion by the state point toward the establishment Òof a state religious faith?Ó

It has been established that the program in which Mr. Convict was ordered to participate is inherently religious in its credo and its practices. It has further been established that such a credo and such practices are in opposition to those of the chosen religion of Mr. Convict. There exists coercion by the state to participate in this religious program in that Mr. Convict faces incarceration in a correctional facility if he chooses not to participate. The coercion by the state does lean toward the establishment of a state religious faith in that to demand exposure to a certain faith or its practices is advocating and endorsing that faith. The state must not endorse faith in particular or in general. To do so is a violation of the guaranteed right to religious freedom.

Lemon v. Kurtzman, 403 U.S. 602 (1971) primarily concerned statutes involving monetary aid to non-public schools with a religious foundation. The issue in the case was one of the separation of Church and State. The landmark decision in the case, however, set forth what came to be widely used criteria for establishing whether a governmental decision has violated a personÕs right to religious freedom. The mandate is as follows: 1) The governmental act or statute must have a secular legislative purpose; 2) Its principal or primary effect must be one that neither advances nor inhibits religion, and; 3) It must not foster an Òexcessive entanglementÓ between the government and religion.

The governmentÕs actions in the case of Mr. Convict have violated this ruling. The unclear secular legislative purpose not withstanding, the stateÕs coercion of Mr. Convict to participate in a program with religious overtones both advances the religion of that program and inhibits that of Mr. Convict. Such coercion also fosters the Òexcessive entanglementÓ with religion that the Supreme Court opined against. Therefore, the state is in violation of Mr. ConvictÕs right to religious freedom.



II...CARL CONVICTÕS FIRST AMENDMENT RIGHTS UNDER THE FREE EXERCISE CLAUSE HAVE BEEN VIOLATED BY THE GOVERNMENTÕS ORDER THAT MR. CONVICT ABSTAIN FROM DRINKING THE ONE GLASS OF ÒHOLY WINEÓ REQUIRED DAILY BY THE TENETS OF HIS CHURCH.

A. The government must show a compelling interest in the denial of a citizenÕs constitutional right to the free exercise of his religious practices.

The Religious Freedom Restoration Act of 1993, 42 USCS s 2000bb (1996), prohibits Òsubstantial burden of a personÕs exercise of religionÓ unless there exists Òcompelling governmental interest.Ó In the instance of such an interest, the burden must be exercised by the Òleast restrictive means.Ó The court in United States v. Marks, 96-361-1, 1996 U.S. Dist. Lexis 17404 pointed out that the burden to show a compelling governmental interest is on the state.

Furthermore, when the rights of a person under correctional supervision are at stake, as in OÕLone v. The Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court has held that the existence of a legitimate penological interest is required. Governmental agents who have denied persons under correctional supervision their right to freely exercise their religious beliefs and practices without benefit of a legitimate compelling interest are acting inconsistently with the first amendment and are thereby in violation. Luckette v. Lewis, 883 F. Supp. 471 (D.C. Ariz. 1995).

B. There exists a lack of legitimate reason for impinging upon Carl ConvictÕs right to free exercise of his religion as guaranteed under the first amendment.

There is no compelling state interest in denying Carl Convict his rights to free exercise of his religion. In cases such as United States v. Marks, 96-361-1, 1996 U.S. Dist. Lexis 17404, the government has been able to demonstrate that certain privileges of free exercise may jeopardize a legitimate interest such as security within a correctional facility or the ability to control the population therein. There is no such interest concerning Carl Convict as, though he is technically in custody by virtue of being under correctional supervision, he is not housed within a facility wherein his actions might affect those of other inmates or staff or place them in danger.

In many cases, as in OÕConnor v. Calif., 855 F. Supp. 303 (C.D. Calif. 1994), the state may have been able to demonstrate that there existed a compelling interest by virtue of the fact that the convicted persons involved often had been convicted of alcohol-related crimes such as drunk driving. Alcohol was in no way involved in the offense of which Mr. Convict was convicted.

The Supreme Court, in Turner v. Safley, 482 U.S. 78 (1987), established four Òfactors of reasonablenessÓ of impingement of the Constitutional rights of a person under correctional supervision: 1) Logical connection to the governmental interest invoked to justify it; 2) Whether alternative means of exercising the Constitutional right remain open; 3) The impact of accommodating the Constitutional right on staff and inmates and the allocation of resources; 4) Whether policy represents an Òexaggerated response to institutional concerns.Ó

There has been no governmental interest invoked by which to make a logical connection. It is assumed that the government placed these special conditions upon Mr. ConvictÕs probation out of habit rather than out of a rational or compelling interest. There are no alternative means for Mr. Convict to obey his religious tenets (specifically, the daily glass of wine) and fulfill the demands of his probation as they stand. There is no impact upon any other person in allowing Mr. Convict to carry out his religious practices as he is not housed in a facility where there are other inmates or staff. The only impact upon the state could prove to be a positive one in that random urinalysis checks would not be necessary, thereby saving time and money of the government and its employees. Finally, the probation conditions do represent an Òexaggerated responseÓ in that there are no institutional concerns and no logical basis for concerns of the probation department because the offense for which Mr. Convict was convicted is in no way related to the conditions themselves.

III. THE STATE ERRED IN PLACING SPECIAL CONDITION UPON CARL CONVICTÕS PROBATION WHICH IN NO WAY RELATE TO THE OFFENSE OF WHICH MR. CONVICT WAS CONVICTED, THE CIRCUMSTANCES SURROUNDING SAID OFFENSE, OR MR. CONVICTÕS HISTORY.

As stated in the Federal Probation Act, 18 USCS 3651 (1996), when placing special conditions upon a probationer, the court must consider the Ònature and circumstances of [the] offense and the history and characteristics of the defendant.Ó The court must also consider the Òneed for the imposed sentence.Ó

It has been established that the primary purpose for a special condition of probation requiring a probationer to attend Alcoholics Anonymous is to prevent drunk driving and the injuries caused thereby, OÕConnor v. Calif., 855 F. Supp. 303 (C.D. Calif. 1994), while providing treatment for persons with alcohol and drug abuse problems. Another purpose may be to curb a probationerÕs tendency toward alcoholism, as in United States v. Shriver, 842 F.2d 968 (7th Cir. 1988) and United States v. Pollard, 94-3704 1995 U.S. App. Lexis 18935, or toward violence brought about by drinking, as in United States v. Johnson, 998 F.2d 696 (9th Cir. 1993). In all three cases, Shriver, Pollard, and Johnson, the court involved found that the nature of the crime or the ÒdramaticÓ history of the probationer was grounds for a special condition of requiring participation in Alcoholics Anonymous and of requiring abstinence from alcohol in all forms, including Communion wine.

It was noted in each of these cases, as it was in United States v. Kosth, 943 F.2d 798 (7th Cir. 1991), that conditions imposed upon a probationer Òmust be reasonably related to the offense.Ó

Carl ConvictÕs conviction for attempted unarmed robbery was in no way related to alcohol. It was related to his desperate need to pay for cancer treatments for his wife. As this was Mr. Convicts first offense, there exists no history of crimes relating to alcohol or drug abuse in any way.

In United States v. Schoenrock, 868 F.2d 289 (8th Cir. 1989), utilizing a quote from United States v. Terrigno, 838 F.2d 371 (9th Cir. 1988), the court established a test for the Òvalidity of a special probation conditionÓ: Ò...whether [the probation condition] fosters rehabilitation of the defendant and protection of the public.Ó Forcing Mr. Convict to participate in A.A. meetings and forcing him to abstain from consuming his ÒHoly WineÓ will in no way foster Mr. ConvictÕs rehabilitation for the propensity toward unarmed robbery, assuming that propensity existed within him, which it does not. These conditions will in no way reflect upon the safety or protection of the public.

In United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992), the conditions of Mr. PrendergastÕs probation included abstinence from alcohol and random tests to insure that abstinence. The U.S. Court of Appeals (8th Cir.) ruled that the district court had Òabused its discretionÓ by imposing abstinence from alcohol as a probation condition when it didnÕt relate to the crime (wire fraud) of which Mr. Prendergast had been convicted. Alcohol was in no way a contributing factor in that case as it is not in Mr. ConvictÕs case. The court in Prendergast pointed out that conditions of supervised release Òmust not involve a Ôgreater deprivation of liberty than is reasonably necessaryÕ [18 USC s 3583 (d)(2)(1992)].Ó

The conditions of Carl ConvictÕs probation are a greater deprivation of liberty than are reasonably necessary.