janney an atheist spent one hundred and fifty dollars days in jail for refusing to participate in christian worship while on parole the courts reversed the decision below for three reasons st the district court erred in granting summary judgment when it disregarded competent admissible evidence of violations of both yes that was when cohen's in the free exercise clause nd the court erred when it ruled that the colorado parole officer with regard to the establishment clause claim i mean to what what evidence did you put forward mr johnston the involvement with the state and knowledge his verified complain in this two sworn declarations mr constantine like the other to applebee's said to him you're going to do the program or go to jail repeatedly moreover mr constancy proselytized mr janney he conducted the two bible classes that mr janney was forced to attend moreover mr constantly reprimanded mr janney for skipping morning prayers and chapel somebody else that now mr janney sworn statement is that both mr constantly and mr carr mack said to him on separate occasions repeatedly you're going to do the program meaning participate in religious that mr constantly said that very thing ok so say he said it he could make him go back to jail what if he didn't have that authority well between the three of them they all did in fact if not a forty of the three of them had the was notified because mr giannis electronic monitoring device was unplugged or the parole office was notified mr gammas had an arrest warrant issued mr janney was arrested mr cheney was sent back to jail for an additional one hundred and fifty as a direct result of his refusal to participate in the christian worship and other religious activities at the program so you don't disagree that the mission can you know kick people out of the mission for not participating in the christian activities do you know we don't disagree with that in this record and theirs and you don't have any obligation the state of colorado controlled the rules of the mission do you they we do have no evidence of moment because the state knew of the content of the program and required in this case the proly to participate the fact that they didn't design it doesn't matter but how does that go to  there was a religious component to the program that was the whole point of it what they say is it reflectively is a really doesn't matter because we're we're we're private we're private citizens and there's no state d action that goes that the state action point all address that now if you're on with like well let me just say they're me right aren't they if there's no state action then they can have a religious content all they want and they can kick people out if they don't come on i so without state action you admit you don't have a claim right against the to what we call the program defendants carmack and constantly that's correct state action is required and we have within and we have argued there as your owners know there are four separate test for state action which our position is the evidence set forth low status flies satisfies two of them both the joint action test and the nexus test and that's been and we did brief them i'm happy to address that issue now if your honour's work well let me ask you a couple more questions you don't get the missions being paid by the state or having her for having your client there right that's correct that's not her record and there was no contractual agreement between the state and  are otherwise shut out from housing they that maybe they may want that but it's up to the state to provide a secular option no secular option was provided to mr jahn well they  have to take i mean they they offered a place the states who made the decision that he give the place they're not no i think your honor's question goes to your honest question goes to whether or not violation close enough so that the private party may be considered a state entity under section one thousand nine hundred and three and that both the joint action test and the nexus test are satisfied here and they were satisfied here because  of all with a heard of the joint action test there was this informal arrangement number one number two when mr janney an atheist objected to the christian required question worship that resulted in threats of jail from all three asked he said he was going to be required to attend every night and that it was the parole officers decision to change the curfew but there was no explicit and thirty they went to the meeting with mr gammas that afternoon he asked that it be changed mr dennis did in fact change it and that's reflected in the documentary evidence on the electronic log the records every event recorded every event with regard to mr jennings parole and his curfew was changed that very day from six o'clock to four hundred and thirty so there was an ask and there was an agreement and it was done and i see that has to mr karma but i'm not seeing in the record that mr contant confidante he did anything other than his job and i don't see anything where he in that where he told your client that if he didn't go participate in the religious services he would go back to jail and i'm going to check you gave me volume on page one  that is certainly is part of it but there is also evidence as i mentioned before both of the proselytisation and also the fact that it was mr constantia who was who conducted the bible studies the mr jane it was forced to a but that i mean you know if if i happen to be a minister in a church and i'm proselytizing and i'm putting on religious services and somebody else with state already makes somebody come and in fact we say that there wasn't a fact joint action both in that telephone call placed during the orientation and mr coins then t's later conduct having to do with with we've cited your honor to the to the deposition on the obviously under oath in addition the declarations both the original one and the amended one also under oath state that mr constantine reprimanded counsel going before we begin i just want to point out for the court that mr leavitt nd are you going to be splitting our time so i'll take about the st nine minutes or so i will discuss the claims against officer jim as the muslim sect will speak specifically about the the arguments presented by mr janney make the case quite a bit more complicated than it really is ultimately it is very simple at least as far as the claims against officer can measure concerned and there are three key facts in this case under judgment understood so in that particular case there are a number of statements that mr jenney makes which really form the basis of his case that that case is not established anywhere else in the record and broadly speaking our position has been it continues to be that that an explanation that he gives about the circumstances under which he was housed in the debt rescue mission and the circumstances in which he left the dead risk commission all of that is essentially a post hoc rationalization a post hoc explanation of what happens there is not anything in the documentary record which even remotely squares away with that explanation you have these wise logs the jury that says you should believe what we're telling you over what mr cheney is telling you but it it's not it doesn't allow either it doesn't allow the district court to discount the evidence put forward by mr janey and frankly the probation long entry case management meeting on the afternoon of february th followed immediately by an entry changing mr genies curve you to cour thirty pm supports mr janey allegations of what happened at that meeting so you can read that log either way which is why we don't get we don't just ignore sworn testimony at this stage well in this particular case the evidence again that is presented by mr jamie is all timidly it is something that is not in any way broader rated but i'm sorry it's summary judgment and i am just going to go through the real quick so to begin with there's no dispute that mr jamie was arrested and ultimately found to have violated his parole contract because he did not remain at his residence of record every night as he was required to do so by condition two of his parole contract that states twenty to twenty one in the st bottom of the appendix in other words he was found to have been in violation of his parole contract because he absconded not because he violated the subsequently imposed condition that he was to abide by the rescue missions house rules which by the way were not that order was not specific as to having to participate in any sort of religious programming secondly there is no communicate with this pro officer as he was required to do and finally there is also it's also the case that while mr janney was ordered to live at the mission we're not disputing that the order came down he was not being compelled to live there and  between april d lena and a parole officer is in effect in many cases in many instances it's collaborative you can communicate you can say listen i'm having an issue with what is going on at the democrats commission and in this particular case it's just and the free exercise clause claim we can affirm summary judgment and with regard to the south in clause claim this is true regardless of whether we apply the lemon test which has been generally applied by by the circuit in the past  well the issue of whether i mean the the outcome it would be for the same under either test i mean is there a coercive component to what to to order that mr janney lives at the rescue mission yes i suppose there is but that's neither here nor the other here nor there because the result would be the same either way so for instance to pass constitutional muster on the levin says the government action has to have a secular purpose right the object of the coercion religious or secular so the word object is he there what is the the true purpose of this of this order and the order to have to live with the devil rescue mission is to give him an appropriate place to live it is not it isn't it he left without permission but he can be properly in violation of parole and still have a valid claim under the free exercise clause for the establishment any they're not mutually exclusive now they're not mutually exclusive but he would still have to show that there was a religious rather than secular purpose for the decision in this particular case whether you're talking about the placement or the removal it was it was secular  nature because and with regards to the removal with the violation of parole excuse me and in that particular case the the secular purpose was the fact that he was not found to be in violation of parole because he didn't follow the rules whatever that may be which could have been attending are participating in religious activities but that th claim they don't have to prove that under react you still do that well i guess that depends on how we are interpreting the claim i mean we when we briefed it below it we briefed it as a as an intentional religious scriven nation it may please the court my name is john leonard nd i represent defendants carmack and constantin who are the employees of the denver rescue mission in the short time that i have left i want to focus on a few key facts and then compare this case to the gala hearses neil young concert case to show that very close parallels in the legal issues between this case and that case the district court got it correct there was no state action in this case the referral by mr game as to the mission was for housing it had no component of you must go there for religious instruction the issue of the religious orientation did not come about until the day after cheney arrived at the mission so as mr game has certain states in his affidavit it's a standard procedure in every referral to require housing and to require  following the house rules so that's all he did so the rules that were set up by the mission were set up by them with no influence from the state the state did not get involved in setting the rules the mission set up the rules so when mr janney arrived he was following the rules that had been set up soley by the mission the mission had no contract with the state it received any compensation so let's compare this case to the gallery of her case and the neil young concert so in the neil young concert case the state of utah was university least its arena and in the lease was a requirement for appropriate security and the concert promoter hired a security company and the security company had a procedure to require pat downs on admission to a rock concert the university was aware of the fact it was not part of a contract but there was a meeting at the concert at the venue where a representative of the university was there and heard the plans for the pat down and the court just this circuit correctly held that that was mere acquiescence the fact that the university knew about the pat downs did not mean that there was trying to action did not mean that there was nexus didn't mean that there was state action under any test so it of the court held in gallagher that there was not state action for the same reason there is no state state action here by either mr karmic or mr constantin judgment you are correct judge the involvement of mr constantin was very distant but even looking at mr karmic there was no state action by him it was the mission's own procedures mr gammas the parole officer was aware of them but he didn't do anything other than acquiesce the the mission did not have the authority to expel anybody it had to to send somebody back to jail i misspoke they did have authority to expel but they didn't have any authority to send anybody back to jail so the state action of the decision to send him back to jail had nothing to do with what the quickly with regard to judge carson's question about the curfew change and where that is in the record mr carnac's said that he would ask mr gammas to change the curfew that's in volume one at pages thirty one and thirty two that's the complaint m to him the rules of the program are the rules of your parole including the religious ones then mr gammas at the february th meeting in the afternoon the nd meeting that day said to mr janney you must follow the rules of the program or go to jail and again that's volume one page one hundred and sixty seven at page eighty three dollars with regard to counsel citation of the gallagher case the neil young concert we distinguish that in our brief in that case there was no joint action between the state and the private parties there is evidence of joint action here i have talked about some of it already and the rest is certainly set forth in detail in our brief and i see that my time is almost up so we will submit any issues that i did not reach on the brief thank you cou the case is submitted counselor excuse