Frances A. Warner, Appellant, v. John A. Graham, Duainne S. Bourcy, Wayne J. Anderson
and Weldee Baetsch, Appellees
Nos. 87-5252, 87-5391
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
845 F.2d 179
December 17, 1987, Submitted
April 27, 1988, Filed
PRIOR HISTORY: Appeal from the United States District Court for
the District of North Dakota.
COUNSEL: Dean A. Rindy, West Fargo, North Dakota, for Appellant.
David C. Thompson, Fargo, North Dakota, for Appellee.
JUDGES: John R. Gibson, Bowman and Wollman, Circuit Judges.
OPINION BY: GIBSON
OPINION
[*179] JOHN R. GIBSON, Circuit Judge.
Frances Warner, a program specialist employed by the Lake Region Human Services
Center, provided preventive drug and education services to school and community
groups. She was suspended and then discharged [*180] because of
her admitted use of peyote and the adverse effect this use would have on her ability
to effectively perform her job. She claims, as a member of the Native American Church,
that her use of peyote was associated with religious practices and therefore entitled
to first amendment protections. Warner brought this 42 U.S.C. § 1983 action against
four employees of the North Dakota Department of Human Services: John Graham, Executive
Director; Wayne Anderson, Deputy Director; Weldee Baetsch, Director of Personnel;
and Duainne Bourcy, Regional Director of the Lake Region Human Services Center,
a branch of the Department of Human Services. The primary issue on appeal is whether
the district court erred in denying the supervisors' claims that their acts were
protected by qualified immunity. The supervisors also argue that the district court
interpreted the findings of certain administrative agencies incorrectly and erred
in concluding that the supervisors did not use the least restrictive means of achieving
a compelling state interest and in granting Warner declaratory relief. Warner, on
the other hand, argues that the district court erred in giving preclusive effect
to certain administrative agencies' factual findings. We reverse the judgment of
the district court, 675 F. Supp. 1171 (1987), and order that judgment be entered
for the supervisors on the basis of qualified immunity.
In 1982, Warner became a full-time program specialist with the Lake Region Human
Services Center. Her primary function was to provide alcohol and drug education
services of a preventive nature to students in grades 5 to 12. This involved about
45 percent of her allocated time. In addition, about 25 percent of her time was
alloted to conducting chemical abuse awareness sessions with adults and community
groups, developing a "minor in possession" program, as well as assisting
with sexual abuse treatment programs. Twenty percent of her time was to be spent
assisting addiction counselors with case plans and treatment for addicted individuals
and their families. The remainder of her efforts had to do with assessments and
data collection regarding the effectiveness of these services.
On July 13, 1984 Warner and her husband were arrested and charged with distribution
and possession with intent to distribute peyote in violation of 21 U.S.C. § 841(a)(1)
(1982) and 18 U.S.C. § 2 (1982). On July 16, Warner informed Bourcy of her arrest,
admitted that she used and would continue to use peyote and explained that it was
associated with her religious practices in the Native American Church. Bourcy contacted
Anderson and the two decided that based on previous practices in which other employees
had been charged with felonies, Warner should be suspended for 30 days without pay,
pending the outcome of the criminal charges. Bourcy wrote Warner informing her of
this fact and also stated that if the charges were dropped or she was acquitted,
she might be reinstated. Personnel guidelines only permitted 30-day suspensions
and so on August 14, 1984, with the criminal charges still pending, Warner was suspended
without pay for an indefinite period. On September 25, Bourcy met with Anderson,
Graham and two assistant attorneys general. Bourcy informed them that Warner admitted
using peyote and intended to continue to do so and that several school officials
and community members were unwilling to allow her into their schools and community
groups even if she were acquitted. Bourcy did not explain at that time that Warner's
peyote use was connected with her practice of religion. It was agreed that she be
fired.
On September 27, Bourcy sent Warner a letter informing her that she was fired because
of her admitted use of peyote and the adverse effect this use would have on her
working relationships with clients and addiction professionals.
On the same date, and the record in the district is not clear as to whether Bourcy
or the state attorneys general knew of it, the district court in Warner's criminal
case denied a motion for acquittal on a number of grounds, including the religious
justification [*181] for the use of peyote. [Footnote 1] The district
court determined that there was a question as to whether the Warners, who were not
Indians, were properly members of the Native American Church in view of church requirements
that such members be at least 25 percent Indian, and whether their religious beliefs
were conscientiously held. The Warners subsequently were tried and were acquitted
by a jury of the criminal charges on October 29, 1984.
Warner filed a personal grievance against Bourcy's decision to suspend and terminate
her. On October 2, 1984, an internal grievance procedure hearing was held before
a hearing officer, who recommended that Warner's termination be upheld. On November
8, 1984, Graham upheld Bourcy's termination decision, finding that Warner's use
of peyote coupled with public knowledge of such use would have a direct adverse
effect on her ability to carry out the duties and responsibilities of her job, and
thus served as "cause" for her termination. Graham stated that he reached
his decision after considering Warner's claimed constitutional privilege to use
peyote, and he disclaimed any intention to deny those rights. He concluded that
the termination was because of her use of peyote which was deemed inappropriate
for her position and that reinstatement would harm the department's clients and
other public agencies served by it. He recommended, however, that she be given priority
consideration for other positions and directed that she be provided with weekly
job opening announcements. Warner appealed to the State Personnel Board. There was
a hearing and on January 28, 1985, the Board filed proposed findings of fact, conclusions
of law and a recommendation stating that Warner's acquittal removed use and possession
of peyote as a ground for dismissal and that the only "cause" remaining
was her effectiveness as an alcohol and drug educator. Since the effect on her job
duties was unknown, the State Personnel Board ordered reinstatement with full backpay
and benefits.
Baetsch and Bourcy met with Warner on February 6, 1985, to discuss her reinstatement,
and Warner signed in for work that afternoon. The following day, however, Warner
told Baetsch that she wanted her reinstatement revoked. Over the next several days
she met with Baetsch and Bourcy as well as other supervisors and staff members to
discuss the terms of her reinstatement. Conversations continued over a few days
but culminated with Warner submitting a written resignation on February 21, which
was accepted on March 26, 1985.
Warner then applied for unemployment benefits, a number of hearings occurred, and
on March 15, 1985, the Claims Deputy issued a determination disqualifying her from
benefits because she voluntarily quit her job. An Appeals Referee affirmed this
determination and on October 16, 1985, the Executive Director of Job Services affirmed
the Appeals Referee's decision, finding that Warner's resignation in February, 1985,
was without good cause attributed to her employer. Warner did not seek administrative
or judicial appeal from the Director's decision. The latter two orders were considered
by the district court and given preclusive effect.
Meanwhile, on September 23, 1985, Warner brought this 42 U.S.C. § 1983 action alleging
that the four supervisors violated the free exercise clause of the first amendment.
The district court granted Warner's request for declaratory judgment. Applying the
balancing test set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed.
2d 965, 83 S. Ct. 1790 (1963), and subsequently applied in Thomas v. Review Bd.,
450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1980), and Hobbie v. Unemployment
Comm'n, 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190 (1987), the court
concluded that although the supervisors had a compelling interest in controlling
illegal drug abuse, the supervisors failed to demonstrate that Warner's termination
was the least restrictive means that could have been employed "as is illustrated
by her subsequent reinstatement to other duties," and therefore, the supervisors
violated Warner's first [*182] amendment free exercise rights.
It rejected the argument that Warner's termination was motivated by her loss of
credibility through public knowledge and condemnation of her use of peyote, rather
than disapproval of her religious practices, concluding that this was a subjective
motivation, and not a proper consideration in free exercise analysis. It concluded,
however, that her reinstatement on February 6, with full backpay and benefits, satisfied
the least restrictive consideration and ended any constitutional violation. The
supervisors were therefore liable only for the period from termination until reinstatement
for which Warner had received backpay. The court reserved the issue of any remaining
damages for future determination.
The court then denied the supervisors' motion for summary judgment based on qualified
immunity concluding that Warner's right to use peyote was clearly established at
the time of her termination and that the supervisors should have known that her
use of peyote was entitled to free exercise protection.
This court has recently stated that qualified immunity accommodates competing social
interests by ensuring that officials who "knowingly violate the law" are
held accountable, while officials who reasonably exercise their discretion may do
so without fear of being sued. Arcoren v. Peters, 829 F.2d 671, 673 (8th
Cir. 1987) (en banc) (citations omitted). When performing a discretionary function,
a government official is entitled to qualified immunity from suit if, at the time
of his conduct, it was not "clearly established" that his actions would
violate the plaintiff's constitutional rights. Id. at 673, 676-77 (citations
omitted). [Footnote 2] The qualified immunity defense fails when the official acts
in a manner that disregards undisputed constitutional guarantees. Id. at
673. For this reason, we have held that public officials must "apply well-developed
legal principles in carrying out their duties." Lappe v. Loeffelholz,
815 F.2d 1173, 1178-80 (8th Cir. 1987). However, an official is not expected to
anticipate the law's development or its possible application to a unique situation.
Arcoren, 829 F.2d at 676-77. Thus, an official may not be charged with
knowledge that his conduct was unlawful unless it has been previously identified
as such, and an official does not forfeit his immunity because he "gambled
and lost on the resolution of an open question." Id. at 676-77 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 535, 86 L. Ed. 2d 411, 105 S. Ct. 2806
(1985).
The sacramental use of peyote has been recognized in limited circumstances as a
protected religious practice under the free exercise clause. For example, peyote
is exempt from the provisions of the Controlled Substances Act when used in bona
fide religious ceremonies of the Native American Church and members of the Native
American Church so using peyote are exempt from registration. 21 C.F.R. § 1307.31
(1987). [Footnote 3] A number of states have also exempted the sacramental use of
peyote from their Controlled Substances Acts. [Footnote 4] Similarly, several state
courts have held that state laws forbidding the possession of peyote are unconstitutional
as applied to its possession by members of the Native American Church in religious
ceremonies. [*183] [Footnote 5] See, e.g., People v. Woody,
61 Cal. 2d 716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964); [Footnote 6] Whitehorn v.
State, 561 P.2d 539 (Okla. Crim. App. 1977); State v. Whittingham,
19 Ariz. App. 27, 504 P.2d 950 (1973), cert. denied, 417 U.S. 946, 41 L.
Ed. 2d 667, 94 S. Ct. 3071 (1974).
However, we cannot say that it was "clearly established" at the time Warner
was fired that her use of peyote was privileged under the free exercise clause of
the first amendment. On the very day that Warner was fired, the district court in
Warner's criminal prosecution denied Warner's motion to dismiss rejecting her claim
she was entitled to the exemption of 21 C.F.R. § 1307.31. Warner, 595 F. Supp.
at 598. The court held that a question of fact existed as to whether Warner used
peyote in bona fide religious ceremonies and whether Warner, a non-Indian, was a
member of the Native American Church, in view of the fact that Church by-laws required
members to be at least one-quarter Native American Blood. Moreover, a legitimate
question of law existed as to whether a non-Indian may be entitled to the exemption
of 21 C.F.R. § 1307.31. While both Peyote Way Church of God v. Smith, 742
F.2d 193 (5th Cir. 1984), and Native American Church of New York v. United States,
468 F. Supp. 1247 (S.D.N.Y. 1979), aff'd, 633 F.2d 205 (2d Cir. 1980),
extended the exemption beyond members of the Native American Church, the district
court in Warner,
595 F. Supp. at 598, examined the legislative history leading up to the promulgation
of 21 C.F.R. § 1307.31 and concluded that Congress did not intend a broad exemption
for the religious use of peyote by non-Native American Church Members or non-Indians.
Id.
at 598-599. Thus, we cannot say that at the time Warner was fired that it was clearly
established her use of peyote was entitled to first amendment protections. Mitchell,
472 U.S. at 535.
Even if we were to conclude that Warner had a clearly established constitutional
right to use peyote, it is insufficient for immunity purposes to determine only
if a "clearly established" constitutional right exists. See Myers v. Morris,
810 F.2d 1437, 1458-59 (8th Cir.), cert. denied, 484 U.S. 828, 108 S. Ct.
97, 98 L. Ed. 2d 58 (1987); Snyder v. Kurvers, 767 F.2d 489, 497-98 (8th
Cir. 1985). Qualified immunity would be meaningless if it could be defeated merely
by the recitation of some well-recognized right and a conclusory allegation that
the defendant infringed it. Myers, 810 F.2d at 1459, n.16. In deciding
a question of qualified immunity, as we have discussed earlier, we look to whether
established law informed the supervisors that their conduct violated "basic,
unquestioned constitutional rights." See Wood v. Strickland, 420 U.S.
308, 322, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). The Seventh Circuit in discussing
the meaning of clearly established rights has suggested that if the existence of
a right or the degree of protection it warrants in a particular context is subject
to a balancing test the right can rarely be considered "clearly established,"
at least in the absence of closely corresponding factual and legal precedent. Benson
v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479 U.S.
848, 107 S. Ct. 172, 93 L. Ed. 2d 109 (1986), cited in Myers, 810 F.2d
at 1462; see also Lappe, 815 F.2d at 1179-80. The balancing test required
by Sherbert, supra, and its progeny was the [*184] subject
of the district court's decision and is one of the battlegrounds of this appeal.
Moreover, although there are a number of criminal prosecutions involving peyote
use, [Footnote 7] and several cases involving the denial of unemployment compensation
benefits after an employee is discharged because of a conflict between work and
religious beliefs, [Footnote 8] we are aware of no legal precedent which controls
this case. In fact, the Supreme Court granted certiorari to decide whether a state
violated the free exercise clause of the first amendment by denying unemployment
benefits to two drug counselors, fired after they ingested peyote during a ceremony
of the Native American Church. Smith v. Employment Div., 301 Ore. 209,
721 P.2d 445 (Or. 1986), cert. granted, 480 U.S. 916, 107 S. Ct. 1368,
94 L. Ed. 2d 684 (1987); Black v. Employment Div., 301 Ore. 221, 721 P.2d
451 (1986), cert. granted, 480 U.S. 916, 107 S. Ct. 1368, 94 L. Ed. 2d
684 (1987). [Footnote 9] Thus, in February 1985, when the supervisors fired Warner
a "legitimate question" existed regarding whether Warner's first amendment
rights were violated. See Mitchell, 472 U.S. at 535 n.12. This conclusion
is sufficient to sustain a claim of qualified immunity. See Arcoren, 829
F.2d at 676. Accordingly, we reverse the judgment of the district court and order
that judgment be entered in favor of appellees.