IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA

CENTER FOR INQUIRY, INC., RICHARD HULL and ELAINE HULL, Plaintiffs, v. Case No. 2007-CA-1358 MICHAEL D. CREWS, in his official capacity as the Secretary of Corrections of Florida; PRISONERS OF CHRIST, INC., a Florida corporation; and LAMB OF GOD MINISTRIES, INC., a Florida corporation, Defendants. ________________________________________/

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Center for Inquiry, Inc. (“CFI”), Richard Hull, and Elaine Hull, pursuant to

Florida Rule of Civil Procedure 1.510, move for summary judgment on all of Plaintiffs’ claims.

The pleadings and other matters of record establish that there are no genuine issues of material

fact and Plaintiffs are entitled to a judgment as a matter of law declaring that (1) the payments

from state funds made by Michael D. Crews, in his official capacity as the Secretary of Florida

Department of Corrections (“DOC”), to Lamb of God Ministries, Inc. and Prisoners of Christ,

Inc. (collectively, the “Defendant Contractors”) under their respective contracts are

unconstitutional violations of article I, section 3 of the Florida Constitution; and (2) sections

944.473 and 944.4731, Florida Statutes, are unconstitutional to the extent they authorize those

payments.

Additionally, this Court should grant injunctive and supplementary relief as necessary to

terminate the contracts between DOC and Defendant Contractors and to enjoin any future illegal

payments. In support of this motion, Plaintiffs state as follows.

Filing # 27080035 E-Filed 05/08/2015 03:16:12 PM

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PROCEDURAL BACKGROUND

A. The Initial Proceedings In The Trial And Appellate Courts.

In 2008, Plaintiffs sued DOC and Defendant Contractors seeking to prohibit DOC from

using state funds pursuant to sections 944.473 and 944.4731, Florida Statutes, to support

Defendant Contractors’ faith-based substance abuse transitional housing programs. In Count I of

their complaint, Plaintiffs alleged that the state’s payments to these faith-based organizations

violated the no-aid provision of the Florida Constitution, which prohibits any revenue to be taken

from the public treasury “directly or indirectly in aid of any church, sect, or religious

denomination or in aid of any sectarian institution.” Art. I, § 3, Fla. Const. In Count II,

Plaintiffs challenged the constitutionality of sections 944.473 and 944.4731 to the extent they

allowed DOC to enter into these contracts with Defendant Contractors.1

DOC and Defendant Contractors moved for judgment on the pleadings, asserting that

Plaintiffs lacked standing to bring their claims. They further asserted that the statutes, and the

contracts awarded pursuant to those statutes, did not violate article I, section 3. Regarding Count

I, Defendants asserted that the First District’s decision in Bush v. Holmes, 886 So. 2d 340 (Fla.

1st DCA 2004) – which held that article I, section 3 prohibited state funds from being paid to

sectarian schools under the Opportunity Scholarship Program – applied only to the school

context. Defendants further asserted that the contracts were constitutional because the statutes

direct DOC to consider faith-based service groups on an equal basis with other private

organizations and were therefore merely expressing nondiscrimination policies. This Court

agreed and granted judgment on the pleadings as to Count I.

1 Plaintiffs also raised a third count, challenging the state’s delegation of government authority to chaplains under section 944.4731(6)(a). The First District held Plaintiffs did not have standing to raise that issue, and it is consequently irrelevant here.

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As to Count II of the initial complaint, Defendants contended that Plaintiffs did not have

standing to challenge DOC’s authority to enter into contracts with Defendant Contractors. This

Court agreed and granted judgment on the pleadings as to Count II.

Plaintiffs appealed. With respect to Count I, Plaintiffs asserted that Bush v. Holmes was

not limited to the school context and the trial court erred in ruling the payments made under the

contracts constitutional because it applied an Establishment Clause analysis, not an analysis

under the no-aid provision in article I, section 3. The First District agreed and, in doing so,

established important principles relevant to this case on remand. See Council for Secular

Humanism v. McNeil, 44 So. 3d 112 (Fla. 1st DCA 2010) (“CSH”).

First, the court held that nothing in article I, section 3 limits its application to the school

context. In contrast, it broadly prohibits the use of public funds “in aid of any church, sect, or

religious denomination or in aid of any sectarian institution.”

The First District also made clear that the no-aid clause is far stricter than the

Establishment Clause and draws a more stringent line regarding the payment of state funds to

sectarian organizations than the United States Constitution. CSH, 44 So. 3d at 119 (citing

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481 (1986)). An inquiry under the no-

aid clause requires courts to consider matters such as:

(1) Whether the government-funded program is used to promote the religion of the provider;

(2) Whether the program is significantly sectarian in nature; (3) Whether the program involves religious indoctrination; (4) Whether the program requires participation in religious ritual, or (5) Whether the program encourages the preference of one religion over another. Id. at 120.

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As to Count II, the First District held that “to the extent that Count II challenges [DOC’s]

authority to enter into the contracts and the performance of those contracts by the ministries, . . .

taxpayer standing is not present.” Id. at 122 (emphasis added). The court found taxpayer

standing was established as to Count I. Id.

The First District thus reversed the trial court’s order as to Count I and affirmed as to

Count II. The Florida Supreme Court denied Defendants’ request for review.

B. The Present Proceeding.

The case returned to this Court on remand. Because of the time that passed during the

appeal, the contracts with DOC at issue in the first proceeding had expired and DOC entered into

new contracts with Defendant Contractors. Those changes were addressed in a Second Amended

Complaint, which is the operative pleading.

DOC and Defendant Contractors challenged the sufficiency of the Second Amended

Complaint through motions to dismiss and strike. Among other things, they argued that the

action should be dismissed for lack of standing and because “the terms and language about

which the Plaintiffs complained, and which formed the basis of their claims in this case, are not

present in the current 2012 contracts.” Contractors Motion to Dismiss, at 2.

Plaintiffs responded that Count I challenges the payments made to Defendant Contractors

under the new contracts because public funds are still being used in aid of sectarian purposes.

Furthermore, it is the services actually provided by Defendant Contractors that are at issue, not

how those services are described in the new contracts.

Plaintiffs also explained that Count II does not challenge DOC’s authority to enter into

contracts under sections 944.473 and 944.4731, which the First District held they did not have

standing to do. Rather, that Count requests ancillary relief necessary to prevent future illegal

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payments.

This Court denied the Defendants’ motions and joined together both Counts of the

Second Amended Complaint “[b]ecause Count II of the Amended Complaint seeks injunctive

relief based on the same allegations raised in Count I, and therefore will [be treated] as a request

for additional, ancillary relief to that sought in Count I.”

Plaintiffs now move for summary judgment on all claims because the undisputed facts

demonstrate state funds are being given directly in aid of pervasively sectarian institutions in

contravention of article I, section 3.

STATEMENT OF UNDISPUTED FACTS

A. Defendant Lamb of God Ministries.

Through its Articles of Incorporation, Lamb of God Ministries makes its purpose explicit

– it “exists to proclaim God’s truth, to administer the ordinances, to stimulate growth toward

maturity, and to bring glory to God.” See Am. 4 to Art. of Inc. of Lamb of God Ministries

(App:104).2 A 2006 amendment to the ministry’s original Articles of Incorporation “affirm[ed]

our confidence in God’s inerrant word,” “acknowledge[d] the Creator God as our Heavenly

Father,” and “claim[ed] Jesus Christ as our Lord.” Id. Membership in Lamb of God Ministries is

“indicated by an individual’s attendance of gatherings, devotion to the Ministries’ work, and

belief in the essentials of our Faith, . . .” Id.

The name “Lamb of God” comes from the Bible, and “in Christian circles would be Jesus

Christ.” Deposition of James Fugate (“Fugate Dep.”) 14:20–22, Apr. 2, 2014 (App:17). The

ministry provides faith-based recovery programs to men with substance and alcohol abuse

problems, and each participant’s “program is tailored to his specific needs, utilizing the latest

2 The documents contained in the Appendix to this motion are consecutively paginated using Bates numbers. Citations to the Appendix are thus referred to as (App:Bates number).

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proven methods of cognitive behavior therapy and 12-step work from a biblical perspective.”

About the Program, Lamb of God Recovery Centers,

http://journey2freedom.net/the_program.html (last visited May 1, 2015) (emphasis added)

(App:1120).3

The ministry supplies participants with either the first or fourth edition of the Big Book of

Alcoholics Anonymous (“Big Book”). Fugate Dep. 34:4–16 (App:37). The Alcoholics

Anonymous (“AA”) process includes the 12-step system and advises recovering persons to,

among other things:

x [Make] a decision to turn our will and our lives over to the care of God as we understood Him.

x [Be] entirely ready to have God remove all these defects of character. x [Seek] 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.

x Hav[e] had a spiritual awakening as the result of these Steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.

The Twelve Steps of Alcoholics Anonymous, Alcoholics Anonymous,

http://www.aa.org/assets/en_US/smf-121_en.pdf (last visited May 1, 2015).

Lamb of God’s curriculum also includes other sources from which its counselors “impart

information to a client,” Fugate Dep. 33:10–34:16 (App:36-37), including:

• Our AA Legacy to the Faith Community, a “Twelve-Step Guide for Those Who Want to Believe,”

• Journey to Freedom, which “utilizes spiritual principles based on the grace of God to help clients overcome the bondage of addictions and form a new sense of identity,”

• Grace Walk, which “helps us to learn to stop living by rules and to allow God’s grace to rule us,” and

• Genesis Process, which “provides both a Biblically and neuro-chemical

3 Under Florida Rule of Civil Procedure 1.510(c), a movant may rely on materials “as would be admissible in evidence.” (emphasis added). The Defendant Contractors’ websites and materials on the websites are maintained by the Defendant Contractors and constitute admissions of party opponents. Accordingly, they would be admissible in evidence.

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understanding of what is broken that causes us to be self destructive.”

About the Program, supra (App:1120); The Genesis Process, http://www.genesisprocess.org/

(last visited May 1, 2015).

Journey to Freedom is Lamb of God’s own proprietary, faith-based program, and DOC is

aware that Lamb of God uses Journey to Freedom. Deposition of Arnia Perpignand (“Perpignand

Dep.”) 53:11-54:9, 54:22-55:2, Apr. 2, 2014 (App:991-92).

Our AA Legacy is based on both the Big Book and the Bible. See Our AA Legacy to the

Faith Community at 7 (Dick B ed., 2005) (App:271). It comingles passages from the Big Book,

selected Bible verses, and religious suggestions from the authors and editors. See generally id.

For example, it teaches:

If you are willing to believe in a “god,” pick the one that is living. Pick an alive God. For Jesus, the son of God, taught: “. . . You are mistaken, not understanding the scriptures or the power of God . . . have you not read what was spoken to you by God, saying, ‘I am the God of Abraham, and the God of Isaac, and the God of Jacob’? He is not the God of the dead but of the living.” (Matthew 22:29–32)

Id. at 18 (App:282). At lectures or group sharing sessions, ministry leaders pull topics from AA

Legacy to guide discussions. Fugate Dep. 36:1-5 (App:39).

Grace Walk is authored by Dr. Steve McVey and “illustrates the foundational, biblical

truths of who believers are in Jesus Christ and how they can let Him live His life through them

each day.” See Grace Walk, Grace Walk Resources,

http://www.gracewalkresources.com/product/grace-walk (last visited May 1, 2015).

Lamb of God’s CEO and President, James Fugate, is an ordained pastor who was

certified through the Liberty University School of Lifelong Learning. Fugate Dep. 10:14–11:21

(App:13-14). He is also a “disciple of Dr. Steve McVey of GraceWalk Ministries.” Leadership,

Lamb of God Recovery Centers, http://journey2freedom.net/leadership.html (last visited May 1,

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2015) (App:1121). In his time at Lamb of God, beginning in 2009, the ministry’s organizational

approach has remained the same, and there have been no big shifts in philosophy, services, or the

way the program is administered. Fugate Dep. 31:14–32:6 (App:34-35).

In addition to his income, Fugate receives a “pastoral allowance” of $500 per week.

Fugate Dep. 20:9–21:5 (App:23-24). This allowance, provided only to “minister[s] of the

gospel,” allows Fugate to deduct from his gross income any “rental allowance paid to him as

part of his compensation.” 26 U.S.C. § 107. It is not available to all religious leaders. Rather, it

is given only those whose duties are central to the religious mission of an organization, such as

“the performance of sacerdotal functions, the conduct of religious worship . . . and the

performance of teaching . . . duties at theological seminaries.” 26 C.F.R. § 1.107-1(a) (2002).

In his deposition, Fugate stated that while he did not view Lamb of God as a church “in a

traditional sense,” his “heart says [it’s] a church” because he “minister[s] there.” Fugate Dep.

70:11–12, 71:6–20 (App:73-74). Fugate provides a Christian chapel service every Sunday that is

voluntary, but well attended by participants in the program. Id. at 39:15–40:25 (App:42-43).

Fugate states that it is not necessary for Lamb of God to describe the recovery methods as

Biblical in order to use Biblical methods. In describing how Lamb of God is able to provide

recovery “from a faith-based, non-religious approach utilizing Biblical principles,” he explains

that “[y]ou can teach a biblical principle to a person that does not understand they’re being

taught that biblical principle.” Fugate Dep. 32:11–18 (App:35).

Lamb of God maintains a website, which greets visitors with a video titled “the Journey 2

Freedom Begins Here.” The video opens with one word: “FAITH.” See Lamb of God Recovery

Centers, http://journey2freedom.net/ (last visited May 1, 2015) (App:1122). The website

proclaims that Lamb of God is a “proven leader in licensed faith-based recovery.” About the

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Program, supra (App:1120). On the site, a visitor can take a photo tour of the Lamb of God

Pompano Beach campus, which includes an on-site chapel featuring an altar, a cross, and

physical depictions of Jesus Christ. See The Campuses, Lamb of God Recovery Centers

http://journey2freedom.net/the_campuses.html (last visited May 1, 2015) (App:1140-41). The

photo tour also shows a picture of a room in the facility, which includes a painting of Jesus

Christ carrying the cross. Id. (App:1138-39).

Lamb of God is a tax exempt 501(c)(3) organization based on its religious and charitable

purposes. Fugate Dep. 23:4–15 (App:26). In its application for tax-exempt status, it listed the

organization as a church. (App:1540). The ministry generates all of its revenue from its recovery

programs, and approximately a third of the revenue is generated by payments it receives under its

contracts with the DOC. Fugate Dep. at 53:12–54:1 (App:56-57).

Lamb of God maintains a single checking account into which all of its funds are

deposited – including the payments received from the DOC – and from which all organizational

expenses are paid. Id. at 59:13–60:10 (App:62-63). It does not attempt to segregate any funds,

nor does it attempt to identify how DOC funds are spent. Id.

B. Defendant Prisoners of Christ.

Prisoners’ mission is to provide Christian ministry and financial assistance to men

released from prison. Deposition of J. Stephen McCoy (“McCoy Dep.”) 54:16–20, Mar. 7, 2014

(App:423). The self-described ministry provides faith-based re-entry services “designed to

assist men coming out of prison through their transition back into civilian life.” What We Do,

Prisoners of Christ, http://www.pocministry.org/what-we-do.html (last visited May 1, 2015)

(App:1151).

Prisoners helps its participants “develop a strong relationship with God.” About Us,

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Prisoners of Christ, http://www.pocministry.org/about.html (last visited May 1, 2015)

(App:1153). The ministry believes that Christian faith “is essential to the prevention of

recidivism.” McCoy Dep. 25:18–27:12 (App:394-96). Indeed, it is this belief that “makes

Prisoners of Christ different from other ex-offender re-entry programs.” Prisoners’ January

2014 Newsletter, available at News, Prisoners of Christ, http://www.pocministry.org/news.html

(at top of page) (last visited May 1, 2015) (App:1162).

Prisoners is a tax exempt 501(c)(3) organization, McCoy Dep. 31:15–25 (App:400), and

describes itself as a “faith-based ministry” on its Form 990. Prisoners’ Form 990, 2010-2012

(App:855, 876, 900). Additionally, it pays no property tax on its facilities, which are classified

as churches by the Duval County Property Appraiser. See Certified Copies of Duval County

Property Appraiser Records (classifying Prisoners’ properties as “7100 Church”) (App:1528-30).

The Duval County property appraiser records include notes describing various Prisoners’

properties as a “church owned for residential use,” “considered a ministries” (sic) and “house

used as church.” Id.

Prisoners’ Executive Director, J. Stephen McCoy, has a bachelor’s degree in divinity, a

master’s degree in divinity, and a doctoral degree in divinity. McCoy Dep. 9:7–11 (App:378).

Before joining Prisoners, he served as a pastor for thirty-five years. Id. at 9:23–10:11.

(App:378-79). McCoy has found that a Bible-based foundation helps Prisoners’ participants

transition back into society. Id. at 27:13–28:11 (App:396-97). To that end, Prisoners recently

implemented a 5-day intensive orientation program for each client that will include a

foundational Bible class. Id.; see also Prisoners’ January 2014 Newsletter, supra (App:1162).

The class will provide instruction “from the Bible [on] areas like anger management, financial

management, family, relationships, that kind of thing.” Id. at 27:21–25 (App:396).

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Prisoners’ website features a Bible verse, Ecclesiastes 4:10, at the top of the home page.

Home, Prisoners of Christ, http://www.pocministry.org/home.html (last visited May 1, 2015)

(App:1157). Additionally, the home page features a video entitled “Choices,” in which

Prisoners’ Re-Entry Director, Greg Seymour, says that “only Christ can transform a man,” and in

which McCoy says Prisoners provides “spiritual guidance.” Id. (App:1158). A participant notes

in the video that his “relationship with Christ has gotten deeper and stronger.” Id. Another

thanks Prisoners for “providing me with a model of Christianity that I may be able to live out on

the streets that I didn’t know before.” Id.

Prisoners periodically produces newsletters, which can also be found on its website. In

its December 2013 newsletter, McCoy offers a Christmas devotional featuring Bible verses from

the books of John and Luke. Prisoners’ December 2013 Newsletter, at News, supra (App:1164).

In that devotional, McCoy describes Prisoners’ goals:

It is our goal at Prisoners of Christ to help each of our clients to open their hearts to Jesus in a greater way, to behold Him as their friend that sticks closer than a brother. . . . We seek to show them God’s nature while they are in our care. In its January 2014 Newsletter, Prisoners proclaims that it “is poised to become the

leading ‘faith-based’ prisoner re-entry organization in the region.” Prisoners’ January 2014

Newsletter, supra (App:1161). Elsewhere, Prisoners’ Board of Directors member Michael Hallet

quotes a Bible verse, Ephesians 4:15. Id. In another section of that newsletter titled “A Ministry

of Transformation,” Prisoners’ case manager, Frank “Monster” Pilgrim, states that “[t]he men

who join our program are amazing Christians” who remain “devoted to their relationships with

Jesus Christ” despite the challenges they face. Id. (App:1162).

In the July 2014 Newsletter, an intern for Prisoners quotes from the Bible and proclaims

that “[Prisoners] is transforming lives and shaping God’s own people into a holy nation.”

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Prisoners’ July 2014 Newsletter, at News, supra (App:1159).

Prisoners currently provides an AA 12-Step program. McCoy Dep. 36:12–14 (App:405).

Prisoners’ residents are required to attend and participate in the scheduled 12-step substance

abuse program. See Prisoners’ Rental Agreement, ¶ 16 (App:932); Prisoners’ Resident

Agreement and Orientation, ¶ 6 (App:935). The AA meetings are held at St. John’s Lutheran

Church in Jacksonville. McCoy Dep. 38:10-17 (App:407). Prisoners encourages participants to

attend weekly prayer meetings. While these meetings are not mandatory, McCoy describes them

as a part of the ministry’s program. Id. at 40:1–24 (App:409). Although he has not attended

such a prayer meeting, McCoy is “sure” that they feature Christian prayer. Id. Additionally,

Prisoners holds bi-monthly community meetings, also at St. John’s Church, at which McCoy

sometimes delivers a “Bible message.” Id. at 43:4–44:1 (App:412-13).

In addition to AA, Prisoners has used other programs, including Celebrate Recovery and

Walking the 12 Steps with Jesus Christ. See McCoy Dep. 36:20–39:10 (App:405-08). Celebrate

Recovery is a “biblical and balanced program” designed to help participants overcome “hurts,

habits, and hang-ups.” See John Baker, Stepping Out of Denial Into God’s Grace: Participant’s

Guide 1, at 7 (App:482). The principles of Celebrate Recovery, which is based on the Beatitudes,

include earnestly believing that God exists, consciously choosing to commit one’s life and will to

Christ, and reserving daily time for Bible reading and Prayer. Id. at 11 (App:485). Principle 8

directs a participant to yield to “God to be used to bring this Good News to others, both by my

example and by my words.” Id.

Walking the 12 Steps with Jesus Christ is a “Christian, Bible-based Study Guide for use

in recovery from addiction to drugs, alcohol or other out-of-control habits.” Walking the 12

Steps with Jesus Christ. (App:530). The guide attempts to provide the “huge missing link in the

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way that most AA type programs are practiced. . . . the Higher Power of Jesus Christ.” Id. at 1.

(App:535). This program modifies the 12 steps used in AA so that, among other things, the steps

explicitly reference Jesus Christ. See id. at a (App:534). While these materials are no longer

used by Prisoners, McCoy made clear that the “major thrust” of Prisoners’ program has not

changed. See McCoy Dep. 69:1–70:7 (App:438-39).

The majority of Prisoners’ participants are referred through the DOC program. McCoy

Dep. 50:22–51:6. (App:419-20). The vast majority of its revenue comes from DOC payments

and private donations. Id. at 51:19–52:17 (App:420-21). According to an audit of its financial

statements, almost half of Prisoners’ 2010 revenue came from the DOC. (App:848); see also

Prisoners’ Form 990, 2010 (over half of total revenue from government grants) (App:863).

Prisoners maintains one checking account, into which it deposits all revenues. McCoy

Dep. 56:21–59:1 (App:425-28). It does not segregate any funds, except those funds specifically

donated as a “designated offering” – a donation for a specific purpose, like the purchase of a new

van. Id. All other funds, including those received from the DOC, are lumped together and are

available to be spent for any organizational purpose. Id. Prisoners does not track how DOC

funds are spent. Id.

C. The Contracts With Defendant Contractors.

Section 944.4731, Florida Statutes, expressly requires DOC to enter into contracts with

“private organizations, including faith-based service groups, to operate substance abuse

transition housing programs.” § 944.4731(3)(a), Fla. Stat. In entering these contracts, DOC

“shall make every effort to consider qualified faith-based service groups on an equal basis with

other private organizations.” § 944.473(2)(c), Fla. Stat.

Pursuant to those provisions, the DOC contracted with Lamb of God and Prisoners in

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August 2002 to provide faith-based substance abuse post-release transitional housing programs.

See contracts C1999 and C2054 (App:1178, 1301). Thereafter, DOC again contracted with the

Defendant Contractors for faith-based substance abuse post-release transitional housing services,

with various contracts running through January of 2011. See contracts C2269, C2271, C2260

(App:1218, 1266, 1339). Collectively, all of these contracts will be referred to as the “Early

Contracts.”

In July 2011, DOC again contracted with Lamb of God and Prisoners to provide “Post-

Release Substance Abuse Transitional Housing Program Services.” See Contracts C2680,

C2681, and C2666 (App:1390, 1438, 1482). As amended, C2666 and C2680 run through June

2016, while C2681 expired in July 2014. C2666, C2680, and C2681 will be referred to

collectively as the “Later Contracts.”

Plaintiffs’ claims are based on the actual services provided by Defendant Contractors

pursuant to the contracts and not on any specific language within the contracts. Nevertheless,

this section will briefly describe the content of the contracts.

The Early Contracts explicitly required that Defendant Contractors provide faith-based

post-release substance abuse recovery programs. Early Contracts, at II.B. Additionally, the Early

Contracts stated that Defendant Contractors would assist participants by providing a program

that includes “a faith-based component incorporating elements of moral challenge and spiritual

renewal.” Early Contracts, supra, at II.A.4

The Later Contracts require the Defendant Contractors to provide post-release substance

4 C1999 and C2054 also stated that Defendant Contractors will provide services that include “a significant faith-based component incorporating elements of moral challenge and spiritual renewal.” See C1999 & C2054, II.B.1.y. (emphasis added). The other Early Contracts removed “significant” from otherwise similar provisions. See C2260, C2269, & C2271, in Early Contracts, supra, at II.B.1.cc.

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abuse transitional housing programs, but do not explicitly require those programs to be faith

based. Later Contracts, at II.A. The Later Contracts state that Defendant Contractors, “if

providing faith-based post-release substance abuse transitional housing, shall ensure that a

program participant’s faith orientation, or lack thereof, is not considered in determining

admission to the program, . . .” Later Contracts, supra, at II.E.7.

Although the contractual language changed, the Defendant Contractors have made few, if

any, substantive changes to their philosophies or the services they provide. See Fugate Dep.

31:14–32:6, McCoy Dep. 69:1–70:7 (App:34-35, 438-39). DOC’s local contract coordinator for

Prisoners does not “believe there's (sic) a lot of differences” in the services offered by Prisoners

under the Early Contracts and the Later Contracts. Deposition of Thomas Britton (“Britton

Dep.”) 16:22-17:25., Mar. 31, 2014 (App:1053-54). Over her time as local contract coordinator

for Lamb of God, Arnia Perpignand has not seen any significant changes in the program or

services offered. Perpignand Dep. 27:24-29:12 (App:965-67).

The Later Contracts initially included the option of providing “a curriculum that uses a

cognitive-behavioral model of addiction recovery that is exclusively religious, spiritual, or

ecclesiastical in nature.” Later Contracts, supra, at II.I.2.c.2. However, C2666 and C2680 were

amended in June 2014 to provide that Defendant Contractors shall offer one of the following:

(a) A curriculum that uses a cognitive-behavioral model of addiction recovery provided in accordance with applicable requirements of Rule 65D-30, Florida Administrative Code; or

(b) A self-help support group model of addiction recovery; or (c) Names and locations of community resources providing substance abuse

re-entry and relapse prevention services to program participants needing this service.

Amendment 3 to C2666 & Amendment 4 to C2680, in Later Contracts, supra.

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Under the contracts, enrollment in the program is voluntary, but “all enrolled program

participants shall be required to participate in program activities and abide by program rules.”

All of the contracts provide that a participant’s faith or lack thereof cannot be considered

in determining admission to the program and that the program shall not attempt to convert

participants to particular faiths. Later Contracts, supra, at II.E.7; Early Contracts, supra, at

II.B.1.b. Similarly, all of the contracts provide that State funds be used for the “sole purpose of

furthering the secular goals of criminal rehabilitation, the successful reintegration of offenders

into the community, and the reduction of recidivism.” Later Contracts, supra, at II.E.3; Early

Contracts, supra, at II.B.1.c.

MEMORANDUM OF LAW

A. Florida’s No-Aid Provision.

Florida’s no-aid provision “is among the most restrictive” of all the provisions found in

state constitutions that restrict funds given to religious organizations, CSH, 44 So. 3d at 118.

Indeed, it imposes more stringent constraints than the federal Establishment Clause. See Holmes,

886 So. 2d at 351(“[T]he no-aid language was intended to impose restrictions beyond what is

restricted by the federal Establishment Clause.”); CSH, 44 So. 3d at 119 (finding that the no-aid

provision imposes “further restrictions on the state's involvement with religious institutions than

[imposed by] the Establishment Clause”).

The provision flatly prohibits the State from using tax revenues in aid of any sectarian

institution: “No revenue of the state or any political subdivision or agency thereof shall ever be

taken from the public treasury directly or indirectly in aid of any church, sect, or religious

denomination or in aid of any sectarian institution.” Art. I, § 3, Fla. Const. The constitutional

prohibition in the no-aid provision involves three elements:

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(1) the prohibited state action must involve the use of state tax revenues; (2) the prohibited use of state revenues is broadly defined, in that state revenues cannot be used "directly or indirectly in aid of" the prohibited beneficiaries; and (3) the prohibited beneficiaries of the use of state revenues are "any church, sect or religious denomination" or "any sectarian institution."

Holmes, 886 So. 2d at 352.

A government-funded program that provides social services which “also advance[s]

religion” violates the no-aid provision. CSH, 44 So. 3d at 119-20. In assessing whether a

government-funded program advances religion, a court should consider whether it 1) is used to

promote the religion of the provider, 2) is significantly sectarian in nature, 3) involves religious

indoctrination, 4) requires participation in religious ritual, or 5) or encourages the preference of

one religion over another. Id. at 120. The CSH factors are not mandatory; rather, they serve as

guideposts to a court in determining whether a sectarian institution is aided by State funds.

B. Florida Law.

While few Florida courts have construed the no-aid clause, the decisions that do exist are

highly instructive. In Holmes, the First District held that Florida’s Opportunity Scholarship

Program (OSP) violated the no-aid clause to the extent that it provided state funds to sectarian

organizations. Holmes, 886 So. 2d at 366.5 Through the OSP, parents and guardians with

children in “failing schools” were given tuition vouchers with which the parents and guardians

could send their children to private schools. Id. at 347. Most of the parents and guardians who

received vouchers chose to send their children to private schools operated by religious or church

groups. Id. at 354. Various organizations and parents challenged the program as violating the

no-aid provision, and the trial court granted summary judgment to the challengers. Id. at 344–45.

5 The Florida Supreme Court later approved the First District’s decision, but on other grounds not addressed by the First DCA. Bush v. Holmes, 919 So. 2d 392, 413 (Fla. 2006). The First District’s majority opinion in Holmes construing the no-aid provision remains controlling law. See CSH, 44 So. 3d at 117.

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On appeal, the First District, sitting en banc, upheld the grant of summary judgment

because there was “no dispute in this case that state funds are paid to sectarian schools through

the OSP vouchers.” Id. at 344. In so holding, the court established the three-prong test described

above. Id. at 352. The court dismissed the appellants’ argument that no aid was given because

the vouchers did not cover the full cost of tuition, expressly adopting the trial court’s reasoning:

While there is no evidence or assertion that any of the schools would cease to operate without the benefit of the OSP funds, that is not the test. It cannot be logically, legally, or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious education component, is advanced and enhanced by the additional, financial support received through operation of the Opportunity Scholarship Program.

Id. at 353 (quoting trial court). Finally, the court found that the schools were sectarian

institutions “with an intent to teach to their attending students the religious and sectarian values

of the group operating the school.” Id. at 354. As evidence of the sectarian nature of the schools,

the court pointed to the Mission Statement of the Pensacola-Tallahassee Diocesan school system

and the Diocese's "Philosophy of Education." Id.

The First District distinguished earlier Florida cases relied upon by the appellants because

none “involve the use of state revenues to aid a sectarian institution.” Id. (discussing three

Florida Supreme Court cases). For instance, in Koerner v. Borck, 100 So. 2d 398 (Fla. 1958),

real property was given to a Florida county through a testamentary devise that contained a

perpetual easement through which a local church could use the property for baptisms and other

recreational activities. Koerner, 100 So. 2d at 400–01. The supreme court found that State funds

to improve the land would not benefit the church. Id. at 402. There was thus no disbursement of

state funds in aid of a sectarian institution. Holmes, 886 So. 2d at 354.

The First District in Holmes similarly distinguished Nohrr v. Brevard County, 247 So. 2d

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304 (Fla. 1971) (“issuance of revenue bonds to support centers of higher education, . . . is not the

payment of money from the revenue of the public treasury”), Johnson v. Presbyterian Homes of

Synod of Florida, Inc., 239 So. 2d 256 (Fla. 1970) (tax exemption not a “disbursement from the

public treasury”), and Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d 697

(Fla. 1959) (no disbursement made from the public treasury). Id. at 355–56. In all the cases,

there was simply no disbursement of state funds to a sectarian institution.

Six years after Holmes, the First District considered this Court’s order granting

Defendant’s motion for judgment on the pleadings. CSH, 44 So. 3d at 115. The CSH court held

that the no-aid provision is not limited to the school context and that expenditures outside the

school context are not shielded from the no-aid provision “simply because a sectarian

organization is paid to provide social services for the state.” Id. at 118–19. Instead, a

government-funded program that provides social services violates the no-aid provision if it also

advances religion. Id. at 120.

Most recently, in 2013, the Eleventh Circuit held that the no-aid provision was not

violated by the Lakeland City Commission’s use of City funds to 1) maintain and update a list of

local religious congregations, and 2) mail invitations to leaders of those congregations to give

invocations before Commission meetings. Atheists of Fla., Inc. v. City of Lakeland, Fla., 713

F.3d 577, 596 (11th Cir. 2013). The court emphasized that the speakers were not paid, and that

the evidence did not show “any pecuniary benefit, either direct or indirect, conferred by [the City

of Lakeland] upon such groups, nor does it show that any religious organization received

financial assistance from [Lakeland] for the promotion and advancement of its theological

views.” Id. (quoting Pelphrey v. Cobb County, 410 F. Supp. 2d 1324, 1348 (N.D. Ga. 2006)). In

short, Atheists of Florida did not involve a disbursement of state funds, nor was there a showing

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that any sectarian organization received a pecuniary benefit.

Significantly, in the only Florida no-aid case in which state funds from the public

treasury were paid directly to sectarian institutions, the court found a violation of the no-aid

provision. See generally Holmes (finding a violation of the no aid provision and noting that

previous cases did not involve direct disbursement of state funds to sectarian institutions).

C. No-Aid Cases from Other Jurisdictions.

Almost uniformly, courts in states that have no-aid provisions similar to Florida’s find

constitutional violations where state funds are given to sectarian institutions. For example, in

Bennett v. City of LaGrange, 112 S.E. 482 (Ga. 1922), the Georgia Supreme Court held that the

provision of city funds to the Salvation Army in exchange for the organization's handling of the

city's charitable cases violated the state's no-aid provision, which was, and still is, nearly

identical to Florida’s.

The Bennett court was not persuaded by the fact that under the contract between the city

and the Salvation Army, the “Salvation Army is only paid the actual amounts expended by it in

taking care of the poor of La Grange, and then only to an amount not exceeding $75 per month,

and that payments are made to the Army or its local detachment only upon itemized bills for

services so rendered by it.” Id. at 485. Neither was the court persuaded by the Salvation Army’s

admirable goals:

The fact that the Salvation Army undertakes to reform the working classes, to reclaim the vicious, criminal, dissolute, and degraded, to visit the poor, lowly, and sick, which is “pure religion and undefiled before God,” and the highest form of benevolence, does not free it from being a sectarian institution.

Id. As the Bennett court noted, “[w]hen the state selects a sectarian institution of learning, and

commits to such institution its wards, for whose maintenance and education it pays, it gives the

most substantial aid to such an institution.” Id. at 487.

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Other courts applying constitutional provisions similar to Florida’s have found the

following actions unconstitutionally aided a church, sect, religious denomination, or sectarian

institution:

1) Loaning or giving books to students who attend religious schools, see e.g., Cal. Teachers Ass'n v. Riles, 632 P.2d 953 (Cal. 1981); Bloom v. Sch. Comm. of Springfield, 379 N.E.2d 578 (Mass. 1978);

2) Providing state-funded transportation to students attending parochial schools, see,

e.g., Epeldi v. Engelking, 588 P.2d 860 (Idaho 1971); Spears v. Honda, 449 P.2d 130 (Haw. 1968);

3) Tuition paid to a religious institution, either through scholarships or vouchers, see,

e.g., Locke v. Davey, 540 U.S. 712 (2004); Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); Witters v. Comm'n for the Blind, 771 P.2d 1119 (Wash. 1989); and

4) Payments made outside the school context, see, e.g., Trinity Lutheran Church of

Columbia, Inc. v. Pauley, 976 F. Supp. 2d 1137 (W.D. Mo. 2013) (state grant that would allow Christian daycare facility to purchase recycled tires to resurface playground would violate Missouri no-aid provision); Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991) (no-aid provision violated by use of county funds to maintain, operate, and promote county park that contained immovable religious statues depicting scenes from New Testament); Richter v. City of Savannah, 127 S.E. 739, 740 (Ga. 1925) (constitutional violation where City of Savannah appropriated money to the Sisters of Mercy, who operated St. Joseph's Hospital, to pay for patients).

ARGUMENT

I. PAYMENT OF STATE FUNDS TO DEFENDANTS UNDER THEIR CONTRACTS VIOLATES ARTICLE I, SECTION 3 OF THE FLORIDA CONSTITUTION.

The payments from DOC to Defendant Contractors under their contracts violate the no-

aid provision because those payments are derived from state revenues and are given directly in

aid of pervasively sectarian institutions. Moreover, Defendant Contractors’ government-funded

programs also advance religion. Sections 944.473 and 944.4731 are thus unconstitutional as

applied here to the extent they authorize the illegal payments. This Court should grant summary

judgment on all counts of Plaintiffs’ Second Amended Complaint.

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A. Applying the Holmes Test, The Contracts Violate The No-Aid Clause.

1. DOC Gives State Tax Revenues to Defendant Contractors.

Defendants admit that state revenues are used to make payments to Defendant

Contractors. See DOC Resp. to Pl. Am. Request for Admissions, ¶ 3. There is thus no dispute

that the first element of the Holmes test is satisfied.

2. The Payments Directly Aid The Defendant Contractors.

State revenues are given directly to and indisputably benefit Defendant Contractors.

Indeed, the DOC payments represent significant portions of Defendant Contractors’ overall

revenues. Fugate Dep. 53:12–54:1; McCoy Dep. 51:19–52:17 (App:56-57, 420-21). It is

immaterial that the ministries might continue to operate without the state funds. As the Holmes

court recognized, money given to an organization benefits that organization even if the

organization would survive without it. 886 So. 2d at 353.

It is also immaterial that the Defendant Contractors may use part of the state revenues

they receive for non-sectarian purposes. The DOC payments advance and enhance the Defendant

Contractors’ operations – including Lamb of God’s mission to “proclaim God’s truth” and “bring

glory to God,” and Prisoners’ goal “to help each of our clients to open their hearts to Jesus” –

just as the funds in Holmes advanced and enhanced the “entire educational missions” of the

schools. Id. As the Holmes court put it, “it cannot be logically, legally, or persuasively argued

that the receipt of these funds does not aid or assist the institution in a meaningful way.” Id.

Furthermore, each Defendant Contractor comingles all of its revenues, including the

DOC payments, into a single unsegregated account. Fugate Dep. 59:13–60:10; McCoy Dep.

56:21-59:1 (App:62-63, 425-27). Both ministries pay all organizational expenses from that single

account. Id. These expenses not only include rent, utility bills, and salaries – all critical to

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maintaining operations – but also things like 1) Prisoners’ newsletters that exhort the virtues of

Jesus Christ, 2) Defendant Contractors’ websites featuring Christian passages and testimonials,

3) voluntary Christian prayer sessions at which participants are encouraged to attend, and 4)

paying the salary of pastors who minister to participants, including Fugate’s pastoral allowance.

Accordingly, the second element of the Holmes test is satisfied because the payments

indisputably directly aid the Defendant Contractors.

3. The Defendant Contractors Are Pervasively Sectarian Institutions.

The record evidence overwhelmingly shows that Defendant Contractors exist for the

purpose of implementing and promoting their Christian faith. Both organizations are self-

described ministries that have stated missions or goals of spreading Christian faith. One ministry

holds events in an on-campus chapel filled with Christian iconography, while the other holds

events at a Lutheran church. Both ministries maintain websites that exude Christian faith and

feature some combination of Bible verses, videos, Christian imagery, or testimonials that

reinforce the idea that the Christian God is a fundamental element of the services they provide.

See pp.6-10 (Lamb of God), 10-13 (Prisoners of Christ), supra.

Furthermore, both ministries are led by Christian pastors. Fugate believes in his heart

that Lamb of God is a church. McCoy acknowledges that the mission of Prisoners is to provide

Christian ministry, and he occasionally delivers Bible messages at the ministry’s community

meetings. Additionally, both organizations have used, and continue to use, curriculum that is

faith-based and that specifically urges a belief in God. Both either use or have used curriculum

materials that specifically teach the 12-step program through a Biblical or Christian perspective.

Id. Even the Defendant Contractors’ names make explicit reference to Jesus Christ.

Because both Defendant Contractors are pervasively sectarian organizations, the third

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element of the Holmes test is satisfied.

B. The Defendant Contractors’ Programs Advance Religion.

The undisputed facts also show that Defendant Contractors’ government-funded

programs advance their religion. First, as noted above, the state funds provide support to the

Defendant Contractors’ entire operations, which are founded on overt missions of spreading

Christianity. The funds help the organizations to maintain websites that promote religion, pay

employees who share the gospel, send out newsletters extolling faith in Christ, and maintain

facilities where Christian prayers and messages are shared by program participants.

Second, the Defendant Contractors actively advance religion within their faith-based

recovery programs. Although participation in the most prominent religious portions of the

programs – the prayer meetings – is ostensibly voluntary (though strongly encouraged), enrollees

are nevertheless required to participate in programs built around Christian faith. For example,

Prisoners provides an intensive 5-day foundational Bible class, and Lamb of God conducts its

AA style meetings with passages from the explicitly Christian AA Legacy. McCoy Dep. at

27:13-28:11; Fugate Dep. at 33:10-34:16, 36:1-5 (App:396-97; App:36-37, 39)

Moreover, because both programs rely heavily on biblical principles as essential elements

of recovery, participation necessarily means exposure to religious indoctrination and the

promotion of Christian faith. Indeed, required participation means attendance at events held in

Christian churches, chapels, or in other venues where Christian iconography is prevalent. When

combined with the AA messages about giving oneself to God, such exposure to Christian

imagery heavily suggests belief in the Christian God above others. As Fugate noted, biblical

principles can be taught to a “person that does not understand they’re being taught that biblical

principle.” Fugate Dep. 32:11–18 (App:35); see also McCoy Dep. at 25:18-27:12 (App:394-96)

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(Christian faith “is essential to the prevention of recidivism.”).

Further, state funds go into Defendant Contractors’ unsegregated accounts from which all

organizational expenses are paid – including those expenses related to the overtly religious

components of the program – even if some participants choose not to participate in the faith-

based portions of the program. Thus, the program advances religion even if some participants

choose not to engage in the faith-based aspects of recovery.

The uncontroverted evidence also demonstrates that the Defendant Contractors actively

share Christian gospel and testimony with participants. Prisoners encourages attendance at

weekly prayer meetings with Christian prayer, and bi-monthly community meetings often feature

McCoy delivering a “Bible message.” McCoy Dep. at 40:1-24, 43:4-44:1 (App:409, 412-13).

Lamb of God offers an exclusively Christian service each Sunday at its chapel that is usually

well attended. Fugate Dep. at 39:15-40:25 (App:42-43). When the ministries’ leaders encourage

participants to attend prayer meetings or offer to share their testimony, they are advancing their

religion just as a church would by encouraging passing pedestrians to stop inside for a sermon.

This is not a case where a religious organization merely serves as a conduit for purely

secular social services. DOC pays Defendant Contractors so that released inmates may

participate in faith-based recovery programs. Once enrolled, participants are instructed by

Christian pastors that faith is crucial to their healing and that they must give themselves to God

to recover. Participants are then surrounded by Christian imagery and literature, attend meetings

in Christian chapels and churches, and are encouraged to participate in Christian rituals.

Defendant Contractors’ government-funded programs unquestionably advance religion.

C. The Revised Language in the Later Contracts Does Not Alter the Analysis.

Although DOC amended the Later Contracts to remove the express requirement to

26

provide faith-based transitional housing services, this case is not, and has never been, about the

specific language of the contracts. The inquiry in a no-aid case is simple and straightforward – it

asks whether state funds have been directly or indirectly given in aid of a sectarian organization.

See Holmes, 886 So. 2d 352. Furthermore, both Lamb of God and Prisoners have continued to

offer essentially the same services since they entered into their newly scrubbed contracts. Fugate

Dep. 31:14–32:6, McCoy Dep. 69:1–70:7 (App:34-35, 438-39). Thus, while the language of the

contracts has changed, the nature of the Defendant Contractors and the services they provide has

not.

II. THIS COURT SHOULD ENJOIN FUTURE UNCONSTITUTIONAL PAYMENTS TO DEFENDANT CONTRACTORS.

Because the payment of state funds to Defendant Contractors violates the no-aid

provision, Plaintiffs request that the Court enjoin DOC from continuing such violations in the

future by making the same unconstitutional payments for the same religious services.

Florida courts have upheld preventative injunctions such as this under similar

circumstances, where a defendant has exhibited a pattern of behavior that is unlikely to change.

For example, in Board of Public Instruction Broward County v. Doran, 224 So. 2d 693, 699 (Fla.

1969), the Florida Supreme Court affirmed an injunction prohibiting the Board from holding

informal meetings where the public was excluded, which it had been doing for over a year in

violation of the Sunshine Law. In so holding, the court explained that such preventative relief

was warranted to “enjoin violations of a statute where one violation has been found if it appears

that the future violations bear some resemblance to the past violation or that danger of violations

in the future is to be anticipated from the course of conduct in the past.” Id. at 700 (citing Nat’l

Labor Relations Bd. v. Express Publ’g Co., 312 U.S. 426, 437 (1941)).

Similarly, the First District affirmed an injunction prohibiting a landlord from exercising

27

his right to reject subtenants "based on the [landlord's] pattern of unreasonably rejecting

proposed subtenants." See E. Fed. Corp. v. State Office Supply Co., Inc., 646 So. 2d 737, 741

(Fla. 1st DCA 1994). In Eastern Federal, a lease agreement provided that the landlord could not

unreasonably withhold approval of any proposed assignment of the lease or sublet of the

premises. However, the landlord refused to grant the tenant permission to sublet the premises to

two different proposed subtenants based on his belief that the proposed subtenants would not

create sufficient revenues to trigger a percentage rent clause.

Based on this “pattern and practice of unreasonably withholding consent to prospective

subtenants” the trial court granted injunctive relief. See id. at 741; see also Daniels v. Bryson,

548 So. 2d 679, 680-81 (Fla. 3d DCA 1989) (recognizing injunctive relief is appropriate where

“there is a demonstrated pattern of noncompliance with [the law], together with a showing of

likelihood of future violations.”); see also Aznar v. Cooperativa De Seguros Multiples De Puerto

Rico, Inc., 2006 WL 1540340, at *3 (M.D. Fla. June 5, 2006) (“An injunction is proper when

there is a demonstrated pattern of non-compliance with the law and there is a reasonably well-

grounded probability that such course of conduct will continue in the future.”).

The same relief is warranted here. In the more than ten years that DOC has contracted

with Defendant Contractors, the reason for their existence and the purpose of their programs has

remained the same – to inculcate their religious beliefs to participants in their programs. As the

undisputed facts above demonstrate, the funds Defendant Contractors receive from the state are

used to aid them in achieving this purpose.

Absent an injunction, there would be nothing to prevent future payments for Defendant

Contractors’ religious services, and Plaintiffs would be forced to institute another action to halt

the constitutional violations. This is exactly why a preventative injunction is warranted here.

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CONCLUSION

The undisputed facts prove that the payments from DOC to Defendant Contractors under

the contracts are state funds from the public treasury that are given directly in aid of sectarian

institutions and fund programs that advance religion. Accordingly, Plaintiffs request this Court

grant summary judgment on all of its claims.

Respectfully submitted,

/s/ W. Douglas Hall W. Douglas Hall (FBN 0347906) Christine Davis Graves (FBN 569372)

James Parker-Flynn (FBN 106355) CARLTON FIELDS JORDEN BURT, P.A. 215 S. Monroe St., Suite 500 Tallahassee, FL 32301 Telephone: (850) 224-1585 Email: whall@cfjblaw.com cgraves@cfjblaw.com jparker-flynn@cfjblaw.com sdouglas@cfjblaw.com Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via

electronic mail to: Karen Brodeen, Senior Assistant Attorney General, Office of the Attorney

General, 107 West Gaines Street, Collins Building, Tallahassee, FL 32301

(Karen.Brodeen@myfloridalegal.com; Mary.Lunt@myfloridalegal.com) and Major Harding and

Dylan Rivers, Ausley & McMullen, (mharding@ausley.com; drivers@ausley.com;

csullivan@ausley.com; mpoppell@ausley.com), on this 8th day of May, 2015.

/s/ W. Douglas Hall Attorney